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Carlos Ermas Aguilera-Martinez, A205 074 111 (BIA June 6, 2014)

Carlos Ermas Aguilera-Martinez, A205 074 111 (BIA June 6, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an order of removal issued in absentia where the respondent presented an affidavit disavowing receipt of the hearing notice, an asylum officer found respondent’s possessed a credible fear of persecution, and the respondent diligently sought reopening after receiving the removal order. The decision was written by Vice Chairman Charles Adkins-Blanch and joined by Member John Guendelsberger and Member Sharon Hoffman.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an order of removal issued in absentia where the respondent presented an affidavit disavowing receipt of the hearing notice, an asylum officer found respondent’s possessed a credible fear of persecution, and the respondent diligently sought reopening after receiving the removal order. The decision was written by Vice Chairman Charles Adkins-Blanch and joined by Member John Guendelsberger and Member Sharon Hoffman.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index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 28, 2014
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08/25/2014

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Rodriguez, Paula J., Esq.

Law Ofice of Miguel A. Elias
2301 Williams Blvd, Suite E
Kenner, L 700
6
2-0000
U.S. Department of Justice
Executive Offce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - SNA
8940 Fourinds Drive, 5th Floor
San Antonio, TX 78239
Name: AGUILERA-MARTINEZ, CARLOS ... A 205-07 4-111
Date of this notice: 6/6/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Guendelsberger, John
Hofman, Sharon
Sincerely,
Dc Ct
Donna Carr
Chief Clerk
Lulseges
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Carlos Ermas Aguilera-Martinez, A205 074 111 (BIA June 6, 2014)
U.S. Department of Justice
Executive Ofce fr Imigation Review
Falls Church, Virginia 20530
File: A205 07 4 111 - San Antonio, TX
Decision of the Board of Imigration Appeals
Date:
JUN 0 6 2014
I re: CARLOS ERMAS AGUILERA-MARTINEZ a.k.a. Calos Era Aguilera-Mainez
I REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RSPONDENT: Paula J. Rodrguez, Esquire
ON BEHALF OF DHS: Gace Gaa
Assistnt Chief Counsel
APPLICATION: Reopening
Te respondet, a native ad citizen of Nicaagua who was ordeed reoved fom te United
States in abseta on Februay 4, 2013, appeals te decision of te I  igation Judge, dated
Mach 12, 2013, denying hs motion to repe, which he fled on Febray 25, 2013. The
Deaent of Homelad Securty is opposed to te respondent's appea.
Upon consideration of the totaity of the record, we conclude that te respondet has
established tat the order of reova should be rescinded on account of lack of notice. See
section 240(b)(5)(C)(ii) of te Imigation and Nationaity Act, 8 U.S.C. § 1229a(b)(5)(C)(ii);
8 C.F.R. § 1003.23{)(4)(ii); Matter of M-R-A-, 24 l&N Dec. 665 {BIA 2008). Hee, te
respondent presented a affdavit fom himself disavowing receipt of te Notice of Heang in
Removal Proceedings. A asylu ofcer has deterined tat te respondent has a cedible fa
of pesecution. Moreover, upon recept of the order of reoval, te respondent diligently sougt
legal counsel and fled his motion in a expeditious maner. Accrdingly, we will reopen these
proceedings in orde to provide the respondent wit a additiona opportnity to appea fr a
removal heang. The fllowing order is entered.
ORDER: The respondent's appeal is sustaned, the in absentia order of remova, enteed on
Februay 4, 2013, is rescinded, these removal proceedings ae reopened, ad te record is
reanded to the Imigation Cou fr fher proceedings consistent with te fregoing opinion
and fr the ety of a new decision.
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Cite as: Carlos Ermas Aguilera-Martinez, A205 074 111 (BIA June 6, 2014)
( )
•, J
UITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMIGRATION COUT
800 DOLOROSA STREET-SUITE 300
SA ATONIO, TX 78207
MIGUEL A. ELIAS, A PROFESSIONAL LAW CORPORATION
RODRIGUEZ, PAULA J., ESQ.
2301 WILLIAS BOUEVAD, SUITE E
KENNER, L 70062
IN THE MATTER OF FILE A 205-074-111
AGUILERA-MATINEZ, CALOS ERMAS
� �LE TO FORWAD - NO ADRESS PROVIDED
DATE: Mar 13, 2013
  TACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUGE. THIS DECISION
IS FINA ULESS A APPEAL IS FILED WITH THE BOA OF IMIGRTION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPAING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUENTS, A FEE OR FEE WAIVER REQUEST
MUST BE MILED TO: BOARD OF IMMIGRATION APPEAS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JGE AS THE RESUT
OF YOUR FAILUE TO APPEA AT YOUR SCHEDUED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3} OF THE IMMIGRTION 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 REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRTION COURT
vER:
CC: DISTRICT COUSEL
8940 FOURWINDS DR., STH FLOOR
SA ATONIO, TX, 782971939
FF
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA, SUITE 300
SAN ANTONIO, TX 78207
Case Number A 205 074 111
IN THE MATTER OF )
)
CARLOS ERMAS AGUILERA-MARTINEZ,)
)
IN REMOVAL PROCEEDINGS
Docket: San Antonio (non-detained)
Charge:
Application:
Respondent )
Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, immigrant
not in possession of a valid unexpired entry document.
8 C.F.R. § 1003.23(b)(4)(ii), Motion to Reopen (rescind) in absentia order.
On Behalf of the Respondent: Paula Rodriguez, Esq.
2301 Williams Blvd.
Suite E
On Behalf of Immigration and
Customs Enforcement:
Kenner, LA 70062
Chief Counsel
8940 Fourinds Dr.
5
th
Floor
San Antonio, TX 78239
WRITTEN DECISION OF THE IMMIGRATION JUDGE
Respondent was placed into removal proceedings as shown on his Notice toAppear (Form 1-862),
dated February 2, 2012. Exhibit 1. In person and in the Spanish language, he was explained his rights
and obligations, including the consequences of failing to appear for a scheduled hearing. Id.
Respondent was released from detention on February 9, 2012, pursuant to Form 1-830 .. Exhibit 2.
Notice of the scheduled master calendar hearing was sent to Respondent's last known address at '12737
Helena St., Kenner, L 70062" on Februar 27, 2012, scheduling the hearing fr 9:00 a.m. on February
4, 2013. Exhibit 3.
Respondent failed to appear at the scheduled hearing. Trial counsel moved the Court to proceed
in absentia. Trial counsel filed Form 1-213, Record of Deporable/lnadmissible Alien. Exhibit 4.
Respondent, through his attorney, filed his Motion to Reopen, on February 25, 2013. Counsel's
statements are not entitled to any evidentiary weight. It is unclear what counsel means: 'Hespondent's
order of removal in absentia was confirmed Immigration and Customs �f�.e0.ent.gRql¥ents to find
the city and zip code to be incorrect." Id. at 5. . , 1 • i: :·
·, _ ; j, •1ti·s1 , •
· · - -· -;.·.�' . . . :.he
• . • . ! 1 • J
Respondent filed his afidavit in English, with no statement of tran�Jation JOr �� �� �
claims he did not receive notice. He does not elaborate and claim tha_t ,e. h��i�V��q�N �an�mil
at the address other than the in absentia order. He does not claim that ·anyoietreuJ}��es mail
_! . L .. i "V..o.4 ... -
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at the address. He lives with his uncle and the address is claimed to be his, but his uncle provides no
statement. Respondent has failed to provide persuasive evidence.
Order
IT IS HEREBY ORDERED that Respondent' Motion to Reopen (rescind) be DENIED.
Dated: March 12, 2013.
s�
�.CARTE
U · · ed States Immigration Judge
-2-
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