U.S.

Department of Justice
Executive Office for hnmigration Review

Board of Immigration Appeals Office of the Clerk
5107 leesburg Pike, Suite 2000 Falls Church, Virginia 22041

Weinrib, Neil A. 305 Broadway, Suite 1002 New York, NY 10007-0000

OHS/ICE Office of Chief Counsel • NYC 26 Federal Plaza, Room 1130 New York, NY 10278

Immigrant & Refugee Appellate Center | www.irac.net

Name: SANOGO, MOHAMED LAMINE

A099·163-486

Date of this notice: 7/23/2012 Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

Donna Carr Chief Clerk

Enclosure

Panel Members: Adkins-Blanch, Charles K. Hoffinan, Sharon Manuel, Elise L.

Cite as: Mohamed Lamine Sanogo, A099 163 486 (BIA July 23, 2012)

U.S.DepartnlentofJusnce
Execuiive Office for Immigration Review
Falls Chmch, Vuginja 22041

Decision of the Board of Immigration Appeals

File:

A099 163 486 - New York, NY

Date:

JUL .2 3 2012

In re: MOHAMED LAMINE SANOGO

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Neil A Weinrib, Esquire APPLICATION: Reopening The respondent, a native and citizen ofMali was ordered removed in absentia on April 18, 2008. On April 25, 2011, the respondent filed a motion.to reopen proceedings, which the Immigration Judge denied on June 29, 2011. The respondent filed a timely appeal of that decision. The appeal will be sustained, proceedings will be reopened and the record will be remanded.

In view ofthe totality of circumstances presented in this case including the respondent's affidavit, his marriage to a citizen and bis ongoing efforts to adjust bis status, we will reopen proceedings, sustaining the respondent's appeal ofthe Immigration Judge's denial ofthe motion under our de novo review authority. Accordingly, the respondent will be provided the opportunity to attend another hearing.
ORDER: The appeal is sustained, proceedings are reopened and the record is remanded to the Immigration Judge for further proceedings consistent with the above opinion.

Cite as: Mohamed Lamine Sanogo, A099 163 486 (BIA July 23, 2012)

UNITED STATES DEPARTMENT OF .JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT NEW YORK, NEW YORK

File:

A099 163 486

In re: the Matter of SANOGO, MOHAMED,
Respondent.

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Date: June 29, 2011

. .

.:.REMOVAL PROCEEDINGS

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Immigrant & Refugee Appellate Center | www.irac.net

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ORDER ON MOTION TO ;REQPmf

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ON BEHALF OF RESPONDENT:
Neil A. Weiruib, Esq. 305 Broadway, Suite 1002 New York, NY 10007

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ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY:
Karen Fox, Esq. Assistant Chief Counsel New York District

DECISION OF THE IMMIGRATION JUDGE
The record reflects that on April 18, 2008, the respondent failed to appear at his removal hearing and was ordered removed in absentia pursuant to Section 237(a)(Ol)(B) of the Immigration and Nationality Act (hereafter, "the Act"). On April 18, 2007, the respondent filed this motion to reopen removal proceedings. On May 10, 2011, the Department of Homeland Security (DHS) filed a response in oposition to the motion to reopen. For the reasons stated below, the motion must be denied. A motion to reopen removal proceedings after an order of removal has been entered in absentia must be filed within 180 days of the entry of the order when the respondent alleges that his failure to attend his hearing was due to exceptional circumstances. 8 C.F.R. 1003 .23(b)(4)(ii). A motion to reopen removal proceedings ·alleging lack of notice of the hearing that the respondent failed to attend may be filed at any time. 8 C.F.R. 1003.23(b)(4)(iii)(2). All other motions to reopen must be filed within 90 days of the final administrative order of removal. 8 C.F.R. 1003.23(b)(l). Finally, the Court may deny a motion to reopen in the exercise of discretion, even if the respondent establishes prima facie eligibility for the relief sought. 8 C.F.R. 1003.23(b)(3).

Cite as: Mohamed Lamine Sanogo, A099 163 486 (BIA July 23, 2012)

The respondent avers that he did not receive a copy of the notice of the hearing he failed to attend. He further contends that while he lived at the address of record until December of 2007, he continued to pay the rent and to receive mail at this apartment until early 2009. His affidavit is silent as to whether he ever provided the Department of Homeland Security (formerly the Immigration and Naturalization Service) of his new address. He claims that he did not receive a copy of the Notice to Appear nor the subsequent hearing notices and, by inference, that he did not receive a copy of the in absentia removal ordered entered on April 18, 2011. The respondent concedes that he became aware of the in absentia removal order on June 29, 2010, when he appeared with his wife for a USCIS interview in Virginia. The Second Circuit has explained that when a respondent seeks to rescind an in absentia removal order claiming non-receipt, the Immigration Judge must consider all relevant evidence, including circumstantial evidence offered-to rebut the presumption of receipt of notice. See Alrefae v. Chertoff. 471 F. 3d 353, 359 (2d Cir. 2006); Lopes v. Gonzales, 468 F. 3d 81 (2d Cir. 2006). While not binding in this jurisdiction, the Seventh Circuit commented that "most letters are delivered, but some aren't, and so if there is a sworn denial of receipt, the trier of fact has to weigh the credibility of the denial in light of the fact that the vast majority of letters are delivered and that the intended recipient has a strong incentive to lie." Joshi v. Ashcroft, 389 F. 3d 732, 735 (7'h Cir. 2004). The record reflects that on June 11, 2007, a copy of the Notice to Appear was mailed to the respondent's address of record. [Exhibit l] Further, on February 12, 2008, the Court mailed the notice of the hearing scheduled for April 18, 2008 and which the respondent failed to attend. [Exhibit 2]. On April 18, 2008, the Court mailed a copy of the in absentia removal order to the respondent. None of these three mailings directed to the respondent's address of record were returned by the U.S. Postal Service as undelivered. In his affidavit, the respondent contends that he was receiving mail and paying rent at the address of record until early 2009, and does not indicate ever experiencing any problems in receiving mail at that address. The Court believes that absent specific evidence to the contrary, it would be highly unlikely that not one, but three separate mailings mailed to the same address over a period of ten months would all not be delivered. In the view of the Court, the respondent's bare assertion that he did not receive notice of the hearing he failed to attend is insufficient to overcome the presumption that he received that notice by mail. Accordingly, the Court must find that the respondent was properly notified of the hearing he failed to attend. Lastly, even if the Court were to find that the respondent was not properly notified of the hearing he failed to attend, the Court would still deny the motion to reopen in the exercise of discretion. As stated above, it is apparent that the respondent became aware of these proceedings on June 29, 2010. In the view of the Court, a ten-month, unexplained delay in filing the motion to reopen is unreasonable, does not establish that the respondent exercised due diligence and that he warrants the granting ofthis motion in the exercise of discretion.
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Immigrant & Refugee Appellate Center | www.irac.net

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• Accordingly, after a careful review of the record, the following orders will be entered: ORDER: IT IS ORDERED that the respondent's motion to reopen removal proceedings be and the same is hereby denied

UvmELA.
U.S. Immigration Judge

Immigrant & Refugee Appellate Center | www.irac.net

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