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Jozef Szypulski, A099 030 552 (BIA Dec. 30, 2013)

Jozef Szypulski, A099 030 552 (BIA Dec. 30, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for an evidentiary hearing to determine the factual basis for the respondent’s non-receipt of the hearing notice. The Board noted that the record reflected that both the Notice to Appear (NTA) and order of removal issued in absentia were returned as undeliverable. The decision was written by Member Edward Grant.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for an evidentiary hearing to determine the factual basis for the respondent’s non-receipt of the hearing notice. The Board noted that the record reflected that both the Notice to Appear (NTA) and order of removal issued in absentia were returned as undeliverable. The decision was written by Member Edward Grant.

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02/04/2014

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Sommers, Lawrence E.

Attorney At Law
9100 West Plainfield Road
Brookfield, IL 60513
Name: SZYPULSKI, JOZEF
Î.b. ÜcgaY¡mcu¡ oÍJuS¡Î£c
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Q{fce of the Clerk
JJ07Lccsburglt8c. òuí/cJ000
ÍdhxLhurch, I|rglnld 20JJ0
OHS/ICE Ofice of Chief Counsel - CHI
525 West Van Buren Street
Chicago, IL 60607
A 099-030-552
Date of this notice: 12/30/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
|ôDCÌ MCuDCI5:
L|SDÎ, c0WS|0 H.
Sincerely,
Donna Carr
Chief Clerk
yungc
U5CI|CôD' LDCKÐI
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For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Jozef Szypulski, A099 030 552 (BIA Dec. 30, 2013)
SZYPULSKI, JOZEF
A099-030-552
3351 N. Normandy
CHICAGO, IL 60634
Name: SZVPULSKI, JOZEF
Í.b. ÜcgaY¡mcu¡oÍJuS¡Î£c
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
J10/Leesburg Pike, S11ile 2000
Falls Church, Virginia J0JJ0
OHS/ICE Ofice of Chief Counsel - CHI
525 West Van Buren Street
Chicago, IL 60607
A 099-030-552
Date of this notice: 12/30/2013
Enclosed is a copy of the Board's decision in the above-refrenced case. This copy is being
provided to you as a courtesy. Your attorey or representative has been served with this
decision pursuant to 8 C.F .R. § 1292.S(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 JÜ days of the date of the decision.
Enclosure
|ôDCÌ MCuDCI5.
L|SDÎ, c0WS|0 H.
Sincerely,
DC c O
Donna Carr
Chief Clerk
yungc
U5OROam. UOcket
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Cite as: Jozef Szypulski, A099 030 552 (BIA Dec. 30, 2013)
L.S.Í6g8FÍm60¡0ÍJ08¡ÍC6
Executive Ofce fr Immigation Review
Decision of the Board of Immigation Appeals
Falls Church, Virginia 2ÛJ3Û
File: A099 030 552 - Chicago, IL
In re: JOZEF SZYPULSKI
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RSPONDENT: Lawrence E. Sommers, Esquire
ON BEHALF OF DHS:
CHARGE:
Jessica Galassi
Assistant Chief Counsel
Notice: Sec. 237(a)(l )(B), l&N Act [8 U.S.C. §1227(a)(l)(B)] -
In the United States in violation of law
APPLICATION: Reopening
0rt Jº
/U\:
The respondent has appealed the Immigration Judge's decision dated June 6, 2013, denying
his motion to reopen. The Immigation Judge had previously ordered the respondent's removal
fom the United States, fllowing te respondent's failure to appea fr a heang on Febrary 6,
2008. The record will be remanded.
We review an Immigration Judge's fndings of fct fr clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R.
§§1003.l(d)(3)(i),(ii
).
On appeal the respondent contends that the address on the Notice to Appear was not corect,
ad he never received the notice of the hearing, through no fult of his own. He states fer
that he resided at 3155 N. Normandy, Chicago, Illinois 60634, at the time of the hearing, and that
this is the address he provided to the Deparment of Homeland Security upon his release fom
custody in May 2007.
Te Immigration Judge fund that the respondent can be charged with receipt of the notice of
hearng because it was sent to his last kow address and he failed to provide his new address to
the Immigration Cour afer being served with the Notice to Appear. He determined that the
respondent's motion to reopen did not provide ay explaation why the heaing notice was
retued as undeliverable, and that due to the lack of infrmation, concluded that the respondent
intentionally made himself unavailable fr his hearing and can be chaged with receipt of the
hearing notice.
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Cite as: Jozef Szypulski, A099 030 552 (BIA Dec. 30, 2013)
1099 030 552
The record refects that on January 11, 2008, a notice of hearing was sent to the respondent at
3351 N. Normady, Chicago, Illinois. It was retured to the Chicago Immigration Cou and the
envelope indicates "Retr to Sender - No Such Number - Unable to Forward." The respondent
did not appear fr his hearing on Februa 6, 2008, and he was ordered removed in absentia on
that date. The Immigration Judge's in absentia order of removal was sent to the respondent on
February 6, 2008. It also was retued to the Chicago Immigration Court, and the envelope
indicates "Retu to Sender - No Such Number - Unable to Forward." Therefre, the evidence
of record refects that the respondent did not receive the notice of hearing and te in absentia
order of removal.
In Smy/ene v. Holder,v. Gonzales 707 F.3d 785 (7th Cir. 2013), which arose in the context
of deportation proceedings pursuant to frmer section 242B of the Act, the Seventh Circuit Court
of Appeals held that once nonreceipt is attested in an affdavit and there is no conclusive
evidence of evasion, the alien is entitled to an evidentiary hearing. We fnd that as the
respondent contended in his affdavit tat he did not receive notice of the hearing, and the record
refects that it was reted to the Immigration Court as undeliverable, the respondent is entitled
to U evidentiar heaing to determine the fctual basis fr nonreceipt of the hearing notice, as
there is no conclusive evidence of evasion. See Smykiene v. Holder, supra. Accordingly, the
fllowing order will be entered.
ORDER: The record is remanded to the Immigration Judge fr fher proceedings consistent
with the fregoing opinion and fr the entry of a new decision.
·�
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Cite as: Jozef Szypulski, A099 030 552 (BIA Dec. 30, 2013)
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In the Matter of:
Josef Szypulski
 
U.5. Dcgarlmcat0fJu8tìcc
Executive Ofce fr Immigration Review
Immigation Court Chicago
Case No.: A099 030 552
Respondent Applicant Û Removal Proceedings
UHDLHU11HL1%%1LHA11UNJUDLL
Upon consideration of respondent' sf applicant's
Motion to Reconsider an Immigration Judge's decision
7 Motion to Reopen proceedings
fled in the above entitled matter, it is MÎÜÎÜÀ LÜÜÎÜÎÜ that the motion
be granted.
7 be denied fr the reasons indicated below.
1

·
J
obert D. Vinikoo
Immigration Judge
Date: June 6, 2013
Ì / The respondent's motion fils to meet the requirements fr reopening under
Section 240(b)(S)(C). The record refects that the respondent was personally served wit the
Notice to Appear ('NT A") on May 2, 2007 and advised of the consequences of filing to appear
fr heaing. The respondent was released fom custody and provided his address at 3351 N.
Normandy, Chicago, Illinois 60634. Notice of Hearing (''NTA") was send to this address fr a
hearing on February 6, 2008. The record refects tat the hearing notice was retued to the court
as "retur to sender, no such number, unable to frard." Because the respondent filed to
appear in court afer notice was sent to his last kow address, an ln ub8cnIlu heaing was held ad
the respondent was ordered removed to Poland.
It seems clear fom this infration, that the respondent may not have received actual notice
of his hearing. However, the respondent can be "charged" with receipt of the Notice of Hearing
where it was sent to his last kown address and he failed to provide his new address to the court
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·A




afer being served with the NTA. See Matter of Anyelo, 25, l&N De. 337 (BIA 2010); Matter of
G-Y-R-, 23 I&N Dec. 181 (BIA 2001); See also Peralta-Cabrera, 501 F.3d 837 (7t
h
Cir. 2007).
Here, the respondent's motion does not provide any reasonable explanation why te heaing
notice may have been reted as undeliverable. Moreover, the respondent's affdavit doesn't
provide any infration why he waited more that 6 years afer being placed under removal
proceedings to inquiry about his case. Additional the record refects that at the time of the
respondent's arest by DHS in 2007 he had overstayed his visitor status and was not eligible fr
any relief other tan possibly a volunta depaure order. Witout more infrmation, this cour
concludes tat the respondent intentional made himself unavailable fr his hearing and ca be
changed with receipt of the hearing notice. The respondent has not provided sufcient evidence
to warant sua sponte reopening. For these reasons, the motion to reopen must be denied.
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