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Juan Roberto Guzman, A044 466 955 (BIA Nov. 25, 2013)

Juan Roberto Guzman, A044 466 955 (BIA Nov. 25, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an order of removal issued in absentia because the Department of Homeland Security (DHS) failed to serve a copy of its appeal notice when challenging a prior decision terminating proceedings against the respondent. The decision was written by Member Elise Manuel and joined by Vice Chairman Charles Adkins-Blanch and Member Sharon Hoffman.
In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an order of removal issued in absentia because the Department of Homeland Security (DHS) failed to serve a copy of its appeal notice when challenging a prior decision terminating proceedings against the respondent. The decision was written by Member Elise Manuel and joined by Vice Chairman Charles Adkins-Blanch and Member Sharon Hoffman.

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Published by: Immigrant & Refugee Appellate Center, LLC on Dec 05, 2013
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Rocha, Pablo, Esquire

P.O. Box 532248
Harlingen, TX 78553
Name: GUZMAN, JUAN R
U.S. Department of Justice
Executive Offce fr Immigration Review
Board oflmmigration Appeals
Offce of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Vrginia 20530
OHS/ICE Office of Chief Counsel - HLG
1717 Zoy Street
Harlingen, TX 78552
A 044-466-955
Date of this notice: 11/25/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Hofman, Sharon
Manuel, Elise
Sincerely,
[o { t
Donna Carr
Chief Clerk
Use rte am: Docket
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For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Juan Roberto Guzman, A044 466 955 (BIA Nov. 25, 2013)
GUZMAN, JUAN R
A044-466-955
PORT ISABEL DETENTION CENTER
27991 BUENA VISTA BLVD
LOS FRESNOS, TX 78566
Name: GUZMAN, JUAN R
U.S. Department of Justice
Executive Offce fr Immigration Review
Board oflmmigration Appeals
Ofce of the Clerk
5107 Leesburg Pike. Suire .OOO
Fals C/111rch, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - HLG
1717 Zoy Street
Harlingen, TX 78552
A 044-466-955
Date of this notice: 11/25/2013
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. § 1292.5(a). If the attached decision orders that you be
removed fom the United States or afrms an Immigration Judge's decision ordering that you
be removed, any petition fr review of the attached decision must be fled with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Hofman, Sharon
Manuel, Elise
Sincerel y¿
"
Dc11   a vV
Donna CaIT
Chief Clerk
Useream:  _ _
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Cite as: Juan Roberto Guzman, A044 466 955 (BIA Nov. 25, 2013)

f
U.S. Deparment of Justice
Executive Ofce fr I  igraton Review
Decision of te Board of I igaton Appeals
Fals Cuch Vigina 20530
File: A044 466 955 - Halingen, TX
I re: WA ROBERTO GUZMA
I REMOVAL PROCEEDIGS
APPEA
Date:
ON BEHALF OF RESPONDENT: Pablo Rocha, Esquire
ON BEHAF OF DHS:
APPLICATION: Reopenng
May Jae Zaarpa
Assistt Chief Counsel
NOV. 2 i ·2013
The respondent, a native ad citizen of El Salvador, has appeaed te Immigation Judge's
decision of August 8, 2013. I that decision, te Imigration Judge denied te respondent's
motion to reopen proceedings in which he was ordered removed in absentia on December 19,
2012. The Depaent of Homelad Secuty (HS) has fled a brief in opposition to the appeal.
The appeal will be sustained ad the record will be remaded.
We review Imigation Judges' fndings of fct fr clea eror, but questions of law,
discretion, ad judgent, ad all oter issues in appeals, de novo. 8 C.F.R. § 1003.l(d)(3)(i).
On September 1, 2009, te Im igation Judge terinated proceedings. There is no
evidence in te record establishig when te respondent was released fom DRS custody ad
what address he provided, if ay, upon release. On September 21, 2009, the DHS fled a appeal
with te Boad. No EOI-27 was fled on behalf of te respondent, ad Boad notices to the
respondent at te DHS detention center were reted to sender, noting "not here at Willay
Processing Center." On Setember 9, 2011, the Boad reinstated proceedings, ad a copy of tat
decision wa maled to the respondent at the detention center. Subsequently, notices of heag
(NOH) were maled to Pablo Rocha, Esquire, who had represented te respondent in previous
proceedngs.
M. Rocha fled motions to witdraw, infrng the I igration Judge that he had lost
touch with the respondent, but noted tat he fraded te NOH to te respondent at old
addresses obtained fom bond proceedings. I addition, no EOI-28 was fled by M. Rocha on
behalf of the respondent. Despite a lack of evidence that te respondent was represented by Mr.
Rocha, the Imigraton Judge allowed h to witdraw but still required that M. Rocha frad
a in absentia notice to te respondent. On December 19, 2012, te Imgation Judge entered
a i absentia ad on July 9, 2013, te respondent fled a motion to reopen alleging no notice.
The Immigation Judge denied te motion to reopen, fnding tat notice to counsel constttes
notice to te respondent.
Under te totality of te circumstaces, upon de novo review, we conclude tat reopenng
is war ated. While the record indicates that the Boad, dung pendency of te DHS appeal,
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Cite as: Juan Roberto Guzman, A044 466 955 (BIA Nov. 25, 2013)
./ ² •• r
·`�+ - ·
mailed a copy of Notice to Alien ad Ali�ns Attorey of For EOI-27 Requirements, to M.
Rocha, te DHS never properly sered the respondent or M. Rocha, te September 21, 2009,
Notice of Appea.
1
Moreover, as te EOI 27 notice infred, since tese proceedings ae new,
to show representation, a new Notice of Enty of Appeaace as Attorey is requred.
Neiter the record nor te Executive Offce fr hgation Review (EOI) database
refects that M. Pablo Rocha or ay oter counsel fled a Notice of Enty of Appeaace as
Attorey or Reresentative (For EOI-28) in tese new proceedings at the hearing stage.
2
See
8 C.F.R. § 1292.4(a). I addition, while the record indicates that Mr. Rocha fraded te
Jue 18, 2012, Notice of Heang to the respondent to addesses in Sa Bento ad Brownsville,
TX, both cousel ad te respondent mainta tat counsel did not have te respondent's corect
addess, ad alege that the respondent did not receive notice. 3 We terefre conclude that the
respondent was not properly notifed of te time, date, ad place of te removal heang wherein
he was ordered removed in absentia in accordace wit section 239(a)(2)(A) of the Imigration
ad Nationality Act, 8 U.S.C. § 1229(a)(2)(A). Accordingly, the fllowing orders will be
entered.
ORDER: The appeal is sustaned.
FURTR ORER: The in absentia order is vacated, proceedings ae reopened, ad the
record is remaded to te Imigation Judge fr fher proceedings.
FOR THE BOAR
1
The "Proof of Service" portion was not completed ad the Maling address of respondent box
contans not the respondent's nae but instead te nae ''icole Gonzalez," wit a address of
1717 Zoy Steet, Halingen, TX 28580.
2
The EOI database refects M. Rocha's EOI-28 was fled on July 9, 2013.
3 We ae toubled by the appaent lack of cador by te respondent regading where he resides.
Specifcally, in his moton to reopen, he matains tat he has resided in Iowa since 2009, but te
evidence he provides (Tab C) with the motion directly contradicts this assertion, showing
addresses in Texas bot in 2010 ad 2011.
·
2
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Cite as: Juan Roberto Guzman, A044 466 955 (BIA Nov. 25, 2013)
. ·
UITED STATES DEPATMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMIGRTION REVIEW
LW OFFICE OF PALO ROCHA
ROCHA, PALO, ESQ.
P.O. BOX 532248
HALINGEN, TX 78553
IMIGRTION COURT
2009· W. JEFFERSON AVE, STE 300
HLINGEN, TX 78550
· - ·�
• I �\'\f ·� ', •• º
. � .·'
IN THE MATTER OF
GUZM, JUA R
FILE A 044-466-955 DATE: Aug 8, 2013
�ALE TO FORWAD - NO ADRESS PROVIDED
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUGE. THIS DECISION
IS FINAL ULESS A APPEAL IS FILED WITH THE BOARD OF IMMIGRTION APPEAS
WITHIN 30 CAENA DAYS OF THE DATE OF THE MILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOU NOTICE OF APPEAL, ATTACHED DOCUMENTS, AD FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUGE AS THE RESULT
OF YOUR FAILURE TO APPEA AT YOU SCHEDULED DEPORTATION OR REMOVAL HEAING.
THIS DECISION IS FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMIGRTION A NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
8 U.S.C. SECTION 1229a{c) (6) IN REMOVA PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
OTHER:
IMIGRTION COURT
2009 W. JEFFERSON AVE, STE 300
HLINGEN, TX 78550
CC: ASSISTAT CHIEF COUSEL
1717 ZOY ST.
HALINGEN, TX, 785520000
FF
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^
UITED STATES DEPARTMENT OF JUSTICE
EXECUTNE OFFICE FOR IMMIGRATION REVIEW
HARLINGEN IMMIGRATION COURT
HARLINGEN, TEXAS
I THE MA TER OF )
)
)
)
)
August _, 2013
Jua R Guzan
RESPONDENT
APPLICATIONS: Motion to Reopen
ON BEHALF OF THE RESPONDENT
Pablo Rocha
P.O. Box 532248
Harlingen, T 78553
File Number: A 044-466-955
In Removal Proceedings
ON BEHALF OF THE GOVERMENT
Assistant Chief Counsel
U.S. Deparment of Homeland Securit
1717 Zoy St.
Halingen, TX 78552
DECISION OF THE IMIGRATION JUDGE
On December 19, 2012, the Court ordered the respondent removed to El Salvador in absentia
pursuant to section 240(b)(5)(A) of the Immigration and Nationalit Act (Act). The respondent,
through counsel, argues that his removal proceedings should be reopened due to lack of notice. The
respondent's motion to reopen will be denied.
The Court fnds the respondent received proper notice of his removal hearing. The record
refects that notice of the hearing was provided to the respondent's frmer counsel ofrecord. See
section 240(b)(5) of the Act; 8 C.F.R. § I003.26(c)(2); see also Matter of Barocio, 19 I&N Dec. 255
(BIA 1985)(holding that notice to an alien's counsel constittes notice to the alien).
The respondent also claims that counsel was unaware an appeal had been fled by the
Department of Homeland Security (DHS). The record refects, however, that a Notice to Alien and
Alien's Attorey of Form EOIR-27 Requirement was sent to the respondent's counsel, notifing him
that DHS had fled a appeal.
To the extent the respondent argues he did not understand that his case was not fnal due to
his prior counsel's inefectiveness, the Court fnds he has not complied with the requirements of
Matter of Lozada, 19 l&N Dec. 637 (BIA 1988).
Additionally, the Court concludes the circumstances of this case do not warrant the exercise
of the Court's limited discretion to reopen sua sponte. See Matter of J-J, 21 I&N Dec. 976 (BIA
1997).
Accordingly, the fllowing orders shall be entered:
.W M
º¬³
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ORDER: Te respondent's motion to reopen is DENIED.
��
Eleazar Tova
United States Immigration Judge
2
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