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SHONK, PAUL W., Esq.

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5 EAST 8TH STREET
CINCINNATI, OH 45202
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - DET
333 Mt. Elliott St., Rm. 204
Detroit, Ml 48207
Name: GARCIA-HERNANDEZ, FRANCI ... A 096-420-438
Date of this notice:
8/1
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20
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Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Guendelsberger, John
Hofman, Sharon
Manuel, Elise
Sincerely,
D Ca
Donna Carr
Chief Clerk
Use rte am: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Francisco Garcia-Hernandez, A096 420 438 (BIA Aug. 15, 2014)
U.S. Depaent of Justce
Exeve Oc fr Imgton Rew
Deson of te Bd o Igon Ap
Fals ChllVig 20530
File: A096 420 438 -Deroit, M Date:
AUG 15 2014
I re: FRACISCO GACIA-HRAEZ a.k.a. Fracisco Grcia Herade
I REMOVA PROCEEDINGS
APPEA
ON BEHLF OF RSPONDENT: Paul W. Shonk, Esquire
ON BELF OF OHS: Michael B. Dobson
Senior Attorey
APPLICATION: Reconsideration; reopening; change of venue
The respondent, a natve and citien of Mexico, appeals the decision of the Immigation
Judge, mailed Mach 6, 2013, gating the motion to reconside fled by the Depament of
Homeland Security ("DHS"). The DHS is opposed to the respondent's appeal. We will sustain
the respondent's appe. The respondent's unadjudicate motion to chage venue to the
Immigration Cour in Cleveland, Ohio will be gated.
We review Immigration Judges' fndings of fact fr clea eror, but quesions of law,
discreton ad judgment, and al other issues in appeals, de novo. 8 C.F.R. 1003. l(d){3).
The respondent was personaly served with the Notice to Appea on June 19, 2003 (Ex. 1).
The respondent has presented evidence that, two months later, on August 28, 2003, he atempted
to update hs address with the Immigaton Cour (Moton, Ta 1). However, his initial chnge
of address frm was rejected by the Immigration Cour due to a lack of an alien number on the
frm (Moton, Tab 2). The respondent state tt, aer he received te rejected chage of
address frm he re-fled the frm (Moton, Ta 4 14). Over 9 months aer the NTA was
sered on the respondent, the DHS fle the NT A wit the Immigation Court on March 10, 2004
(xh. 1). Subsequently, hearing notices were sent to the respondent's prior address, ad wee
reed by te Unted Staes Postal Serice a undeliverable. Thus, there is no dispute that the
respondent did not actally receive ay notice of the scheduled hearing.
The respondent was ordere removed fom the United Staes in absentia on April 13, 2004.
See section 240()(5)(A) of the Immigation and Nationality Act, 8 U.S.C. 1229a()(5)(A). On
Jaua 9, 201 3, the Immigation Judge sua sponte reopened these proceedings bease, among
other things, the respondent has a paially amputated leg ad signifcant fmily ties to this
country. See Mat er of J--, 21 I&N Dec. 976, 984 (BIA 1997). Subseuently, te DHS moved
fr reconsideration arguing that the provisions fr rescinding an in absentia order of removal
contained at secion 240(b)(S)(C) of the Act "trmp" an Immigation Judge's ability to sa
sponte repen prceedings whch resulted in an asentia order of remova
i
.
Subsequent to the ent of the Immigation Judge's deision, this Board held that a alien
who is subject to a in absentia removal order need not fst rescind the order befre sekng
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Cite as: Francisco Garcia-Hernandez, A096 420 438 (BIA Aug. 15, 2014)
.
't
A096 420 438
repening of the prcedings to apply fr asylum based on chaged countr conditions. Mater
of J-G-, 26 I&N Dec. 161 (IA 2013). Considering the totality of the circumstaces presented,
we are not persuaded that the Immigation Judge was without authorty to sua sponte repen
these proceedings. See 8 C.F.R 1003.23(b)(l) (prvding that a "Immigation Judge may
upon his or her ow motion at ay tme, or upon moton of the Service or the alien reope or
reconsider ay case in which he or she has made a decision unless jurisdicion has vested with
the Board").
Alternatively, the evidence of record also persuades us that reopening would have been
waated on account of lack of notice. See section 240(b)(5)(C)(ii) of the Ac. The respondent
presented evidence coroborating his claim that he made ever efor to update hs address with
the Immigation Cour wthin 2 or 3 months of the servce of the NT A. Te OHS' s 9-month
delay in flig the NTA with the Immigation Cour may very well have interfered with the
cour's aility to process the respondent's change of address, whch was fled in a tmely fshion.
Considerng the totality of these circumstances, reopening on this basis also would have been
waate. Thus, reonsideraton of the gant of reopeng was unwaanted in this case.
For the reasons set frh above, the fllowing orders ae entered.
ORE: The respondent's appeal is susained, and the Department of Homeland Seurty's
motion to reonsider is denied.
FURT ORER: The Imigation Judge's Jauar 29, 2013, decision reopenng these
removal proceedings is reinstated.
FURTR ORER: The respondent's motion to change venue is ganted ad venue of
these proceedings is changed to the Immigration Cour in Cleveland, Ohio.
FOR T BOA
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Cite as: Francisco Garcia-Hernandez, A096 420 438 (BIA Aug. 15, 2014)
I '
f
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UNITED STATES DEPARTMENT OF JSTICE
EXECUTIVE OFFICE FOR IMMIGRATION RVIEW
IMMIGRATION COURT
P. V. McNamara Federal Building
477 Michigan Avenue, Suite 440
Detroit, MI 48226
In the Matter of: Case No.: A: 096-420-438
GARCIA-HERANDEZ, Fracisco
Docket: __ D e _tro"it __ _
RSPONDENT/ APPLICANT
In RMOVAL Proceedings
ORDER OF THE IMMIGRATION JGE
Introduction
On April 13, 2004 respondent was removed in absentia. On December 26, 2012 respondent fled
an "Emergency Motion to Rescind In Absentia Order and Reopen Proceedings" claiming that respondent
"never received notice of his heaing .... " While the <ourt fund that respondent's claims were not true
and that respondent received proper notice to the address he provided, the Court elected to reopen
respondent's case sua sponte.
The Goverent moved to reconsider the sua sponte reopenng asserting the Cour lacks the
power to do so. Respondent has fled an opposition to the Goverent's motion to reconsider.
Discussion
The immigration Court has only the power given to it by statute or regulation.
As the Goverent corectly notes, a regulation canot contadict a statute.
While there is some regulatory autority giving the Im.igation Cour power to reopen a case sua
sponte, INA 240(b)(5)(C) provides where the alien has received notice of the hearing, the absentia order
"may be rescinded only" "upon a motion to reopen" that demonstates the respondent failure to open was
due to "exceptional circumstances", lack of notice, or respondent's "Federal or State custody."
As respondent received lawfl constructive notice of the heaing, as he was not in "Federal or
State custody", and as his failure to appear wa not due to exceptional circumstances, the Cou should not
have reopened respondent's removal proceedings sua sponte.
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ORER
The Governent's motion to reconsider is granted. The sua sponte order granting reopening is
abrogated. Lastly, respondent's motion to reopen is denied.
Imigration Judge
Mach 5, 2013
DATE
cc: Attorey Shon
DHS/BICE Attorney Dobson
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