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Javier Harnandez Roderiguez, A037 518 812 (BIA June 4, 2014)

Javier Harnandez Roderiguez, A037 518 812 (BIA June 4, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings at which the respondent was removed in absentia upon finding he was not properly notified of hearing because the address listed on the Notice to Appear misspelled the name of the street on which he resided. The decision was written by Member John Guendelsberger and joined by Member David Holmes and Member Edward Grant.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings at which the respondent was removed in absentia upon finding he was not properly notified of hearing because the address listed on the Notice to Appear misspelled the name of the street on which he resided. The decision was written by Member John Guendelsberger and joined by Member David Holmes and Member Edward Grant.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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Published by: Immigrant & Refugee Appellate Center, LLC on Jul 23, 2014
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-� .

David L. Sobel, Esquire
Sobel & Erin Law Ofice
1856 East 15th St, Suite A
Tulsa, OK 74104
U.S. Department of Justice
Executive Ofce fr I  igration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeburg Pike, Suite 2000
Falls Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel • DAL
125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324
Name: HERNANDEZ RODERIGUEZ, JA ... A 037-518-812
Date of this notice:
6/4/2014
Enclosed is a copy of the Boad's decision and order in the above-referenced case.
Enclosure
Panel Members:
Guendelsberger, John
Hofman, Sharon
Grant, Edward R.
Sincerely,
Do c t
Donna Carr
Chief Clerk
lucasd
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Javier Harnandez Roderiguez, A037 518 812 (BIA June 4, 2014)
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leeb11rg Pike, Suite 2000
Fals Church. Vrginia 20530
HERNANDEZ RODERIGUEZ, JAVIER
3130 LEPSY STREET
OHS/ICE Ofice of Chief Counsel· DAL
125 E. John Carpenter Fw, Ste. 500
Iring, TX 75062-2324 DALLAS, TX 75212
Name: HERNANDEZ RODERIGUEZ, JA ... A 037-518-812
Date of this notice:
6/4/2014
Enclosed is a copy of the Boad's decision in the above-referenced cae. This copy is being
provided to you as a courtesy. Your attorey or representative has been served wit 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 afrs 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 cout of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Guendelsberger, John
Hofman, Sharon
Grant, Edward R.
Sincerely,
Do. CW
Dona Carr
Chief Clerk
lucasd
Userteam: Docket
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Cite as: Javier Harnandez Roderiguez, A037 518 812 (BIA June 4, 2014)
U.S. Department of Justice
Executve Ofce fr In
g
ration Review
Decision of te Board of I  igaton Appeals
Falls Curch Viga 20530
File: A03 7 518 812 - Dallas, TX
I re: JAVIR HANDEZ RODERIGUEZ
I RMOVAL PROCEEDIGS
APPEAL
Date:
ON BEHALF OF RESPONENT: David L. Sobel, Esquire
APPLICATION: Reopening
JUN -4 2014
The respondent ha appealed te Imigation Judge's decision dated November 20, 2012,
denying his motion to reopen. The I igation Judge had previously ordered te respondent's
removal fom the United States, fllowing the respondent's falue to appea fr a heang on
July 12, 2012. The appeal will be sustained ad the record will be remaded.
We review a Imgation Judge's fdings of fct fr clear eror, but questions of law,
discretion, ad judgent, ad all other issues in appeals, ae reviewed de novo. 8 C.F .R.
§§ 1003. l ( d)(3)(i),(ii).
O appeal te respondent contends that the address on the Notce to Appea was not corect,
and he never received te notice of the hearing, toug no fult of his own. The respondent
states fer that he resided at 3130 Lapsley Steet, Dallas, Texa 75212, at te time of te
hearing, ad tat tis is te address he provided to the Depaent of Homelad Securit upon
his release fom custody. He asserts that te DHS ofcial mstaenly put the "Lepsy Steet"
address on te For I-830 (otice to EOI: Alien Addess
). The respondent has submitted
additional evidence on appeal, but has prvided no persuasive explaation why such evidence
was not previously avalable to him. The Boad ordinaily will not consider ay previously
available evidence frst profered on appeal, as its review is limited to te record of proceedings
befre te Immigation Judge. See Matter of Grialva, 21 I&N Dec. 27 (BIA 1995).
The Imigation Judge fund that te heaing notice maled to the respondet wa properly
sered as it was delivered to the respondent's last kown address of 3130 Lepsy Steet, Dalla,
Texas 75212. Te Immigation Judge notes that althoug te respondent did eventually submt a
chage of address fr on August 14, 2012, te fr was submited only afer the Imigation
Court's order of removal was entered on July 12, 2012. He notes that the respondent wa
infored of his requirement to submit ay chages of address to the I igation Court
immediately ad that a failue to do so would relieve the goverent of its requirement to
provide wrtten notice of the heaing.
We fnd that the respondent has presented suffcient evidence to overcome the presuption
of deliver of te notice of heaing. See Matter of M-R-A-, 24 I&N Dec. 665, 674-76 (I 2008)
(setting fr te stadads fr deterinng if a respondent has presented suffcient evidence to
overcome te weaer presumption of delivery that attaches to notices sent by regula mal).
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Cite as: Javier Harnandez Roderiguez, A037 518 812 (BIA June 4, 2014)
.
!
A037 518 812
Based on a review of the record, it appeas that te heang notice was not sent to te
respondent's corect adress.
1
I is the respondent's contention tat he ha resided at the 3130
Lapsley Steet, Dalla, Texas, address fr more tha 10 yeas. The chage of address fr fled
by te respondent in August 2012 actally indicates tat te respondent continues to reside at
3130 Lapsley Street, Dalas, Texa 75212, ad it does not provide a ''ew" address fr the
respondent. . Fuerore, the Notice of Appeal indicates tat te respondent still resides at the
Lapsley Steet address.
The record refects tat on Mach 29, 2012, a notice of heang was sent to te respondent at
3130 Lesy Steet, Dallas, Texas 75212.
2
Te heang notce was not reted to te Dallas
I  igation Cou as undeliverable. However, the respondent contends tat he did not receive
the notice of heang, ad tat he contacted his attorey ad fled a motion to reopen one month
afer leag of te i absentia order of remova. Therefre, te record supports te fnding tat
the respondent continues to. reside at te 3130 Laplsey Steet address, ad that he exercised due
diligence in seekng to reopen proceedings afer leag of te i absentia order of removal.
Consequently, we fnd that the respondent has overcome te presuption of delivery of the
notice ofheang. See Matter of M-R-A-, supra.
Accordingly, te fllowing orders shall be entered.
ORER: The appeal is sustained.
FUTHER ORER: Te record is remaded to the Imigation Judge fr fer
proceedngs consistent wth the fregoing opinion ad fr te enty of a new decision.
1 We note that the For I-213 idicates a incorect addess of 31330 Lapdley St. Dallas, Texas
75212.
2
Te Imigaton Cou was not requred to notify the respondent's cousel of the heaing, as he
had not fled a Notice of Appeaace on For EOI-28 with the Imigation Cout pror to
issuace of te notice of heang on Mach 29, 2012. 8 C.F.R. § 1003. l 7
(
a). The Executive
Offce fr Imigation Review ad te Depaent of Homelad Secuty ae sepaate ad
distinct entities. When a Notice to Appea is fled with the Imigaton Cou by the
Deament of Homelad Secuty, jusdiction vests, ad proceedings befre a Imgation
Judge commence. 8 C.F.R. § 1003.14(a). Te Imigation Cou is responsible fr scheduling
cases ad providig notice to the goverent ad the alien of the time, place, ad date of
heangs. 8 C.F.R. § 1003.18.
2
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Cite as: Javier Harnandez Roderiguez, A037 518 812 (BIA June 4, 2014)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS
IN THE MATTER OF: )
)
HERNANDEZ RODRIGUEZ, JAVIER )
)
)
)
RSPONDENT )
I REMOVAL
PROCEEDINGS
A 037-518-812
CHARGES: Section 212(a)(6)(A
)
(i) of the Immigration and Nationality
Act, as amended, in that you are an alien present in the
United States without being admitted or paroled, who
arrived in the United States at any time or place other than
as designated by the Attorey General
APPLICATION(S): Motion to Reopen
ON BEHALF OF THE RESPONDENT:
David L. Sobel, Esq.
5514 Lewis Ave.
Tulsa, OK 74015
ON BEHALF OF THE
DEPARTMENT OF HOMELAND
SECURTY:
Roslyn Gonzalez, Esq.
Asst. Chief Counsel - ICE
125 E. Joh Capenter Fwy. Ste. 500
Irving, TX 7 5062
ORDER OF THE COURT
The Respondent has fled a Motion to Reopen in the above-captioned case. For
the fllowing reasons, the Motion will be DENIED.
FACTUA AND PROCEDURL HISTORY
The Respondent is a male, native and citizen of Mexico. Record of
Deportable/Inadmissible Alien (Form I-213). He arrived in the Unted State at or near
Eagle Pass on or about July 3, 2001. He was not then admited or paroled afer inspection
by an Immigration Offcer. Id.
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\�
On May 27, 20 I 0 the Department of Homeland Security (DHS or the
Government) personally served the Respondent with a Notice to Appear (NT A) charging
him with removability under Section 2 l 2(a)(6)(A)(i) and Section 2 I 2(a)(9)(B)(i)(II),
which he signed. See NT A. The Respondent was provided oral notice in the Spaish
language of the consequences of filing to appear as provided in Section 240(b )(7) of the
Immigration and Nationality Act (the Act). Id.
On December 7, 2011, the Dallas Immigration Cour served the Respondent by
regular mail at 3310 Lepsy Street, Dallas, TX 75212 a Notice of Hearing, setting the
Respondent's removal heaing fr March 29, 2012. See Notice of Hearing, dated Dec. 7,
2011. The Notice of Hearing was retued by the Postal Service on December 14, 2011.
A typographical error in the Respondent's address was subsequently discovered, and te
Respondent was then served a Notice of Hearing by mail at 3130 Lepsy Street, Dallas,
TX 75212 on March 29, 2012, setting the Respondent's remova hearng fr July 12,
2012. See Notice of Hearing, dated Mar. 29, 2012. The second Notice of Hearing was
not retured by the Postal Service.
The Respondent did not appear fr his hearing on July 12, 2012. Thus, the
proceedings were conducted in absentia. See Order of the Immigration Judge. On Juy
12, 2012, the Court ordered the Respondent removed to Mexico afer the Goverent
submited a Form I-213, which established the trth of the allegations contained in te
NTA. Id.
The Respondent hired attorey David Sobel, who fled a Notice of Entry of
Appeaance as Attorey or Representative befre the Immigration Court (Form E-28) on
August 14, 2012, indicating he was representing the Respondent. See Notice of Entry of
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Appearance (Attached to this Opinion). Additionally� on August 9, 2012, the
Respondent, through counsel, submitted a Change of Address Form (Form E-33). See
Alien's Chage of Address Form.
On August 14, 2012 the Respondent, through counsel, submited the present
Motion to Reopen, arguing that he did not receive notice of his heaing scheduled fr July
12, 2012. See Motion to Reopen.
LEGAL STANDARDS
An Order of Removal entered in absentia may be rescinded upon a Motion to
Reopen if the alien demonstrates that he did not receive proper notice of the scheduled
heaing. IA§ 240(b)(S)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(iii). Proper notice can be
accomplished though personal service of the written notice, or if personal service is not
practicable, through serice by mail to the Respondent. IA § 239(a)( l ). A Notice of
Hearing is properly served when it is personally delivered to the alien or his attorey, or
when it is mailed to the attorey or to the last address provided by the alien in accordance
with INA§ 239(a)(l)(F). INA§ 239(a)(l)(G)(i). Additionally, service by mail of a
Notice of Hearing is suffcient if tere is proof of attempted delivery to the alien's most
recently provided address. INA § 239( c ).
If notice of deportation proceedings is properly addressed ad sent to the aien by
regular mail according to normal ofce procedures, there is a presumption of delivery,
albeit weaker than fr cerifed mail. Matter of M-R-A, 241. & N. Dec. 665 (IA 2008).
Tus, when a respondent bases his motion to reopen on a claim that he or she lacked
notice, the question to be deterined is whether the respondent has presented sufcient
evidence to overcome the weaker presumption of delivery. Id. at 673.
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When a Respondent's motion to rescind an in absentia order of removal is based
on a claim that a Notice to Appear or Notice of Hearing sent by regular mail to the most
recent address was not received, the burden is on the Respondent to provide proof that the
document was not received. See Matter of Ramirez-Sanchez, 17 l&N Dec. 503 (BIA
1980). In determining whether a respondent has rebutted the weaker presumption of
delivery, an Immigration Judge may consider a variety of fctors including, but not
limited to, the fllowing: (1) the respondent's afdavit; (2) affdavits fom family
members or other individuals who are knowledgeable about the fcts relevant to whether
notice was received; (3) the respondent's actions upon learing of the in absentia order,
and whether due diligence was exercised in seeking to redress the situation; ( 4) any prior
afrmative application fr relief, indicating that the respondent had an incentive to
appear; (5) any prior application fr relief fed with the Immigration Court or any prima
fcie evidence in the record or the respondent's motion of statutory eligibility fr relief,
indicating that the respondent had an incentive to appear; ( 6) the respondent's previous
attendance at Immigration Court hearings, if applicable; and (7) any other circumstances
or evidence indicating possible nonreceipt of notice. Each case must be evaluated based
on its own paricular circumstances and evidence. Matter of M-R-A, 24 I. & N. Dec. at
674.
A Motion to Reopen will not be granted unless te Respondent establishes a
primafacie case of eligibility fr the underlying relief. See INS v. Abudu, 485 U.S. 94,
I 04 ( 1988). A Motion to Reopen must also be accompanied by applications fr relief and
all supporing documents. INS v. Dohert, 502 U.S. 314 (1992).
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Additionally, the Court may exercise its sua sponte authority to reopen in Htruly
exceptional situations" and where the interests of justice would be served. In Re G-D-,
221. & N. Dec. 1132 (BIA 1999).
Finally, an immigration judge has broad authority to grant or deny a motion to
reopen. INS v. Dohert, 502 U.S. 314, 322 ( 1992).
ANALYSIS
As an initial matter, the Court notes that the Notice of Hearing, dated March 29,
2012, was properly served as it was delivered to the Respondent's last kown address in
accordance with INA§ 239(a)(l)(G)(i). Here, the Respondent's last kown address was
H3130 Lepsy St., Dallas, Texas 752 I 2" as stated on the Form 1-830, Notice to EOIR:
Alien Address. See Exhibit 3. This is the address at which the Respondent was served
with the corrected Notice of Hearing on March 29, 2012.
Although the Respondent did eventually submit a Change of Address For on
August 14, 2012, that frm was submitted only afer the Court's Order of Removal was
entered on July 12, 2012. Therefre, it does not alter te Court's analysis. The
Respondent was infrmed of his requirement to submit any changes of address to the
Immigration Court immediately and that a filure to do so would relieve the Goverent
of its requirement to provide written notice of the hearing. See NT A.
As the Respondent was properly served at his last kown address, the
presumption of delivery by regular mail applies. See Matter of M-R-A, 241. & N. Dec.
665 (BIA 2008). It is the Respondent's burden to present sufcient evidence to
overcome the presumption of delivery by regular mail. See Matter of Ramirez-Sanchez,
17 I&N Dec. 503 (BIA 1980). Here, the only evidence that te Respondent has provided
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of non-receipt is a statement by his counsel in his Motion to Reopen that neither the
Respondent nor his counsel received notice. The record does not contain an affdavit by
the Respondent or anyone else with personal knowledge of the circumstances. It is well
established that statements by counsel contained in a motion to reopen are not evidence,
and if unaccompanied by other evidence., do not carry respondent's burden of proof See
Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). Given the utter lack of other
evidence in the record, the Respondent"s burden simply cannot be carried by his
counsel's statements asserting lack of notice.
Although the Respondent's counsel complains that he himself did not receive a
Notice of Hearing, the Court notes that current counsel did not submit his Notice of Entry
of Appearance as Attorey until August 14, 2012, more than a month afer the
Respondent's Order of Removal. See Notice of Entry (Attached to this Opinion). The
Court is not required to send a Notice of Hearing to a attorey that is not listed as the
attorey of record.
Finally, the Respondent's counsel states in the Motion to Reopen that the
Respondent never gave the 3 130 Lepsy Street, Dallas, TX 75212 address to Imigration
Court. See Motion to Reopen, at 1. However, that assertion is contradicted by the
evidence in the record. Form 1-830, Notice to EOIR: Aien Address, lists the
Respondent's address as 3130 Lepsy Street, Dalla, TX 75212, which substantiates that
the Respondent told Ofcer Shane Lovet of ICE that he would be living at 3 130 Lepsy
Street, Dallas, TX 7 5212 upon his release. See Exhibit 3.
Thus, afer considering all of the relevant fcts and circumstances in the record,
the Court fnds, fr the reasons stated above, that the Respondent has not presented
6
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sufcient evidence to rebut the weaker presumption of delivery by regular mail. 'The
Respondent is therefre unable to meet his burden to show that he lacked notice of his
hearing.
Finally, the Court fnds that this case does not present the exceptional
circumstances warranting a sua sponte reopening of the proceedings.
CONCLUSION
Accordingly, the fllowing Order will be entered:
ORDER
IT IS HEREBY ORDERD that the Respondent's Motion to Reopen is
DENIED.
This
cO
day of November, 2012
Immigration Judge
7
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