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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Ofiice ofthe Clerk


JI07 Leesburg Piu. S11i1e :!000 Falu Cltruclr, J'lrginia 12041

Cheung, Rosana Kit Wal Law Offices of Rosana Kit Wai Cheung 617 S. Olive Street, Suite 915 Los Angafea, CA 90014

DHSflCE Office of Chief Counsel - SNA 8940 Fourwlnds Drive, 5th Floor San Antonio, TX 78239

Immigrant & Refugee Appellate Center | www.irac.net

Name: VELESQUEZ-AGUIRRE, OMAR

A 099-477-431

Date of this notice: 11/19/2012

Enclosed is a copy of the Board's decision and order in the above>referenced case. Sincerely,

DOYUtL etl/Vt-)
Donna Carr Chief Clerk

Enclosure

Grant, Edward

Panel Members: R.
schwarzA

Userteam: Docket

Cite as: Omar Antonio Velasquez-Aguirre, A099 477 431 (BIA Nov. 19, 2012)

U.S. Department of Justice Executie Office for lmmigrati?R Review


Falls Church, V!Jglnia 22041

Decision

oflhe Board oflnunigration Appeals

Fi1e: A099 477 431 - San Antonio, TX


In re: OMAR ANTONIO VELASQUEZ-AGUIRRE
IN REMOVAL PROCEEDINGS

Date:

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

Rosana

Kit Wai

Cheung, Esquire

Jane Thomsen Assistant Chief CoWlSel

C HARGE :

Notice: Sec.

212(a)(6)(A)(i), I&N Act (8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION:

Reopening

The respondent, a native and citizen ofNicara appeals the November 1S,2011, decision of the Immigration Judge denying his motion to reopen removal proceedings conducted in absentia on March 17, 2006. The appeal will be dismissed. We review for clear error the findings of fact, including the detennination of credibility, made by the Immigration Judge. 8 C.F.R. I 003. I (d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. 1003.t(dXJ)(ii). We adopt and affmn the lnunigration Judge's decision with the following notations.
See Malter

of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). We agree with the Immigration Judge's decision
to deny the respondent's motion to reopen based on the respondent's failure to establish lack of notice (l.J. at 8). See 8 C.F.R. 1003.23(b)(4)(ii). An in absentia order may be rescinded if the respondent demonstrates that he or she did not receive the hearing notice in accordance with sections 239(a)(l) or (2) of the Immigration and Nationality Act, 8 U.S.C. 1229a(a)(l), (2). Section 240{b)(S)(C)(ii) of the Act. However, a written notice of the hearing is not required if the respondent, after being infonned of his address obligation, failed to provide the address at which he can be contacted regarding the removal proceedings. See sections 239(a)(2)(8) of the Act. The record shows that a Notice to Appear (NTA) dated October 28, 2005, was personally served on the respondent whiJe in custody (Exh. 1 ). The NTA informed the respondent of his obligation to provide an address and informed the respondent of the consequences of a failure to appear
Cite as: Omar Antonio Velasquez-Aguirre, A099 477 431 (BIA Nov. 19, 2012)

A099 477 431

(Exh. 1) The respondent stated in his affidavit that he attempted to provide an address to the OHS and that he sent a change of address form to the hnmigration Court. No such fonn is in the record of proceedings, and the Immigration Court therefore did not send a Notice of Hearing to the respondent (Resp. Motion at Tab A). The respondent was ordered removed in absentia on March 17, 2006. The respondent filed a motion to reopen and rescind his in absentia removal order on September 23, 201 1 , after being detained.
.

failed to provide an address. The Immigration Judge considered the unswom statements of the respondent and his sister, and properly gave them diminished weiglit in light of the absence of any contemporaneous evidence that the respondent provided an address to the OHS or to the Immigration Court. Moreover, the respondent waited over S years and until he was arrested before submitting a motion to reopen. See also Gomez-Palacios v. Holder, 560 F.3d 354, 359 (Sth Cir. 2009) (holding that alien receives the required notice in the NTA, if the NTA inf onns the alien of the requirement to provide contact infonnation and that he could be removed in absentia if he failed to appear). Therefore, we agree with the Immigration Judge's decision to deny the respondent's motion to reopen based on alleged lack of notice (l.J. at 5, 8). We also agree with the Immigration Judge that the respondent's late motion to reopen does not

(l.J. at 5, 8). We agree that the respondent was properly infonned of his address obligations, but

We agree with the Immigration Judge that the respondent has failed to establish lack of notice.

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fall within the exception of 8 C.F.R. 1 003.23(b)(4)(i) for changed country conditions (l.J. at 8). In detennining whether there has been a material change in country conditions, we compare the evidence submitted of current country conditions with those that existed at the time of the hearing below. Matter ofS-Y-G-, 24 I&N Dec 247, 254 (BIA 2007). The respondent did not explain how
any change in country conditions affected his claim.

We agree with the Immigration Judge that the respondent has not estabJished that the conditions in Nicaragua have changed sufficiently such that the respondent now has a well-founded fear of future persecution. Accordingly, the following der wiJl be entered.
'\

ORDER: The appeal is dismissed.

Cite as: Omar Antonio Velasquez-Aguirre, A099 477 431 (BIA Nov. 19, 2012)