GASPAR-SANCHEZ, PAULINO

803 EAST ROSE AVE., APT 2

DES PLAINES, IL 60016-3242
U.S. Department of Justice
Executive Offce fr I igration Review
Boarao/ Im|grat|on4ppeals
0ceo/theClerk
5107 Leeburg Pike, Suite 2000
Falls Church. Vrginia 20530
OHS/ICE Ofice of Chief Counsel - CHI
525 West Van Buren Street
Chicago, IL 60607
Name: GASPAR-SANCHEZ, PAULINO A 200-836-708
Date of this notice: 7/15/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
Adkins-Blanch, Charles K.
Sincerely,
DC Ct
Donna Carr
Chief Clerk
williame
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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. U.S. Dpaent of Justce
Ex Oc fr Imgon Rvew
Fals Cu Vi 20530
File: A200 836 708 - Chicao, I
In re: PAULIO GAPAR-SACH
I REMOVAL PROCEIGS
CERTIICATON
ON BELF OF RSPONE: Pro se
ON BELF OF DHS:
APPLICATION: Reopening
Kristin Linsley
Assistat Chief Counsel
Dison of te B of Im gon A
Date:
JUL l
Z014
The resonden has appealed the Immigation Judge's Jauary 10, 2013, decision that dene
the respondent's motion to repen proceeings in which he was ordered removed in absentia. I
orde t resolve ay issues concerng the timeliness of the appel, the Boad taes te appe on
cercaon. See 8 C.F .R 1003 .1 ( c ). The appea will be sustane ad the rer will be
remade.
We review Imgation Judges' fndings of fct fr cle eror, but quesons of law,
discron, ad judgent, ad all other issues in apeals, de novo. 8 C.F.R 1003.l(d)(3)(i),
(ii).
On revie, in light of te totaity of the circmstacs presened, we fnd that the respondent
esalished ecetional circumstace for his failure to appea a the scheule removal heaing.
See seon 240(b)(S)(C) of te I igation and Natonality Act, 8 U.S.C. 1229a()(SXC). I
this ca, the fnal notice of heaing sent to the respondent does not daw atenton to the fac that
the hean loction had ben change. Morever, the day aer te reponde fled t appe
fr his heng, he sbmtted a lette to the Immigation Cour sain tat he appeed at te
preious heng location. The reord also refecs that te respondent h a histor of pror
appaaces ad tat he wa diligent in fling his motion to repen. Accordingly, te appeal will
be sustane and the in absentia removal orde will be rscinde. These procedins will be
repeed to allow the responden aother opporunity to appe fr a heang.
ORE: The appeal is sustaned, and the in asenta removal orde is rescinde.
FT ORE: The procedins ae reopned, and the reord is remaded to the
Immigation Cou fr fhe proceeings consistent wth the foregoing opinion and te entry of
a new deision.
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....
UNITED STATES DEPARTMENT OF JSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
CHICAGO, ILLINOIS
File#: 200-836-708 Date: Januay 10, 2013
In the Matter of:
Paulino GASPAR-SANCHEZ
Respondent.
)
)
)
)
)
f RMOVAL PROCEEDINGS
CHARGE: INA 212(a)(6)(A)(i) - Present in the United States without being
admitted or paoled, or arrived at any time or place other than as
designated by the Attorey General.
APPLICATION: Motion to Reopen
ON BEHALF OF THE RESPONDENT:
Pro Se
ON BEHALF OF THE GOVERMENT:
Kistin Musto Linsley
Assistant Chief Counsel
Department of Homeland Secuity
525 West Van Buren Street, Suite 701
Chicago, Illinois 60607
DECISION OF IE IMGRTION JUDGE
For the reasons that fllow, the respondent's motion to reopen will be denied.
I. BACKGROUND
The respondent, a native and citizen of Mexico, entered te United States at an unown
place on an unknown date. On July 6, 2010, he was arrested in Chicago, Illinois, fr driving
under the infuence.
1
On July 26, 2010, the Department of Homeland Security (DHS) initiated
removal proceedings against him by fling a Notice to Appear (T A) with the Chicago
Immigration Court, charging him with removability under IA 212(a)(6)(A)(i). The
respondent was personally served with the NT A, which provided that he was ordered to appear
befre an Immigration Judge at 55 East Monoe Street in Chicago on a date to be set. See Exh. I
(T A); Exh. 3 (Form I-213).
On August 25, 2010, a hearing notice was mailed to the respondent, infring him that
he had been scheduled fr a hearing on March 27, 2012, at 55 East Monroe Street. On Jaua
1 The respondent has also been arrested fr domestic batery and driving on a suspended license, on July 3, 2003,
and Febrar 7, 2009, respectively. See Ex. 3 (For 1-213).
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27, 2011, another hearing notice was mailed to him, infrming him that his heaing had been
rescheduled fr May 25, 2011. Both notices were sent to the respondent's address of record, 803
East Rose Avenue in Des Plaines, Il1inois.
The respondent appeared in person at his May 25, 2011, hearing, at which time his cae
was continued to November 6, 2012. He was personally sered with a heaing notice advising
him to appear at 55 East Monroe Street on November 6th. At the heaing, the respondent
confrmed on the record that he was still living at 803 East Rose A venue in Des Plaines. The
fllowng day, May 26, 2011, the respondent was mailed a hearing notice changing the time of
his November 6th hearing. Then, on October 21, 2011, he was mailed a hearing notice changing
the location of his November 6th hearing to 525 West Van Buren in Chicago. See Exh. 2. Both
hearing notices were mailed to the respondent's Des Plaines address.
The respondent filed to appear fr his November 6, 2012, heang,'however, ad the
Cou ordered him removed in absentia on the basis of the Form I-213, Record of
Deporable/lnadmissible Alien, submited by the DHS. See Exh. 3. The Cour mailed the
respondent a copy of his removal order to his Des Plaines address. On November 7, 2012, the
respondent fled the instant motion to reopen. The DHS did not fle a response.
II. ANALYSIS
IA 240(b )(S)(A) provides that an alien who, afer receiving written notice, fils to
appear fr a heaing in removal proceedings must be ordered removed in absentia if the DHS
establishes "by clea, unequivocal, and convincing evidence" that witten notice was provided
ad that the alien is removable. A removal order entered in absentia may only be rescinded (1)
upon a motion to reopen fled within 180 days afer the date of the order of removal
demonstrating that the filure to appear was because of exceptional circumstaces, or (2) upon a
motion to reopen fled at any time demonstrating that the alien did not receive notice in
accordance with INA 239(a) or that the alien was in Federal or Stte custody at the time ad
that the filure to appear was through no fult of the alien. IA 240(b)(5)(C).
In the instant case, the respondent was ordered removed in absentia because the DHS had
established his removability by clear, uequivocal, and convincing evidence. In his motion to
reopen, he states, "I missed my immigration hearing scheduled fr yesterday, November 6
t
2012, because the address given on the notice I was sent was incorrect. I went to the old address
at 55 E. Monroe Street and fund the ofce closed. I did not have transporation or money to
make it to the new address fr my appointment."
The record refects that, on October 21, 2011, the respondent wa maled a heaing
notice, in accordance with INA 239(a)(2), changing the location of his November 61
h
heaing to
525 West Van Buren. See Exh. 2. Like the other heaing notices in the record, the October 21st
notice was mailed to the respondent at his Des Plaines address. The respondent has not alleged
that he moved or that the notice was defctive in ay way. Where a hearing notice is properly
addressed and sent by regula mail according to normal offce procedures, there is a presumption
of delivery. Mater c{M-R-A-, 24 I&N Dec. 665, 673-74 (BIA 2008). In determining whether
the presumption has been rebutted, the Cour must consider all relevant evidence. Id. Here,
2
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neither the October 21st notice, the oter heaing notices, or the in absentia remova order-all of
which were mailed to the respondent's Des Plaines address-were reted as undeliverable.2 Cf
Sabir v. Gonales, 421 F.3d 456 (7th Cir. 2005) (fnding tat reopening was waranted, even
though the alien was personally served with a NT A, where te hearing notice was retued
maked "Attempted-Not Known," and the alien made no attempt to thwa delivery). The only
evidence the respondent has submitted is his own self-serving summary denial that he kew the
hearing location had changed, which is weak evidence. See Joshi v. Ashcrof, 389 F.3d 732, 735
(7th Cir. 2004) ("endorsing the commonsensical proposition that a bare, uncorroborated, self
serving denial of receipt, even if swor, is weak evidence"). As the Seventh Circuit recognizes,
"[n]othing is simpler than submitting an afdavit in which one atests that one didn't receive a
particular piece of mail." Id at 736. Unlike the respondent in M-R-A-, the respondent here did
not submit affdavits fom others who are knowledgeable about whether he received the October
21s
t
notice, whether he in fct appeared at 55 East Monoe on November 6, and the
circustances under which he leaed that his hearing location had changed. Additionally, unlike
the respondent in M-R-A-, the respondent has not identifed any eligibility fr relief fom
removal, much less submitted an application or evidence demonstrating his prima fcie
eligibility fr the relief. Moreover, the respondent himself acknowledges that he simply ."did not
have transporation or money" in order to arrive at the correct hearing location. On these fcts,
the respondent has not established that he did not receive notice of the date and location of his
November 61h heaing in accordance with INA 239(a).
Additionally, though the respondent fled his motion to reopen within 180 days afer the
date of the order of removal, he has not established that his filure to appear fr his November 6
t
hearng was due to exceptional circumstances. The term "exceptional circumstaces" refrs to
circumstances beyond the alien's control, such as serious illness of the alien or serious illness or
death of the spouse, child, or parent of the alien, but not including less compelling
circumstances. INA 240(e)( l ). A mistaken belief as to a hearing location ad not having the
fnancial resources to secure transporation to the corect hearing location are not compelling
circumstances that meet the statutory standard of "exceptional circumstances." As such, te
respondent has not established exceptional circumstances excusing his filure to attend the
November 6
th
hearing.
Accordingly, the fllowing order will be entered:
ORDER OF THE IMMIGRTION JDGE
IT IS HEREBY ORDERED that the respondent's motion to reopen is DENIED.
2 Te Cour makes a practice of refling retured and undelivered notices and decisions into the ROP fle.
3
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