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U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals


Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - DET


333 Mt. Elliott St., Rm. 204
Detroit, Ml 48207

Name: NUNEZ-RODRIGUEZ, MARCELO

A 076-516-026

Date of this notice: 2/25/2015

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

Don.rtL c:tVvV
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Guendelsberger1 John

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index
Cite as: Marcelo Nunez-Rodriguez, A076 516 026 (BIA Feb. 25, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Jordan S. Vahdat, Esquire


Delgado Law PLLC
3200 Greenfield Rd
#355
Dearborn, Ml 48120

U.S. Department of Justice


Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - DET

A076-516-026
MONROE COUNTY JAIL
OHS CUSTODY

333 Mt. Elliott St., Rm. 204


Detroit, Ml 48207

7000 E. DUNBAR
MONROE, Ml 48161

Name: NUNEZ-RODRIGUEZ, MARCELO

A 076-516-026

Date of this notice: 2/25/2015

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy.
decision pursuant to

Your attorney or representative has been served with this

8 C.F.R. 1292.S(a). If the attached decision orders that you be

removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Guendelsbergerl John

Userteam:

Cite as: Marcelo Nunez-Rodriguez, A076 516 026 (BIA Feb. 25, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

NUNEZ-RODRIGUEZ, MARCELO

(J.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

Date :

A076 516 026-: Detroit, MI

FEB 2 5 2013

In re: MARCELO NUNEZ-RODRIGUEZ

IN REMOVAL PROCEEDINGS

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APPEAL

ON BEHALF OF RESPONDENT:

Jordan S. Vahdat, Esquire

Mark Jebson

ON BEHALF OF DRS:

Senior Attorney
APPLICATION : Reopeni ng

The respondent, a native and citizen of Mexico, appeals the decision of the hnmigration
Judge, dated December 31, 2014, denying his motion to reopen. The Department of Homeland
Security is opposed to the respondent's appeal.
Upon consideration of the totali ty of the record, we are satisfied that the respondent has
established that the order of removal, entered in absentia on April 19, 2000, should be rescinded
on account oflack ofnotice. See section 240(b)(5)(C)(ii) of the Immigration and Nationality Act,
8 U.S.C. 1229a(b){5)(C)(ii); 8 C.F.R. 1003.23(b)(4)(ii). Here, the Notice of Hearing in
Removal Proceedings ("NOH"), dated January 12, 2000, contains an incomplete address. In
particular, the NOH does not state that it was mailed to respondent on Swan Street, the street

name reported in the Not ice to Appear. As such, the NOH was returned by the postal service as
"Attempted Not Known." Accordingly, we will reopen these proceedings in order to provide the
respondent with an additional opportunity to appear for a removal hearing. The following order
is entered.
ORDER: The respondent's appeal is sustained, the in absentia order of removal, entered on
April 19, 2000, is rescinded, these removal proceedings are reopened, and the record is remanded
to the hnmigration Court for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

Cite as: Marcelo Nunez-Rodriguez, A076 516 026 (BIA Feb. 25, 2015)
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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

-,
l't'

IMMIGRATION COURT
477 MICHIGAN AVENUE,
DETROIT,

Delgado,

SUITE

440

48226

PLLC

Cristina R.

3200 Greenfield Road


Suite 355
Dearborn,

MI

48120
Date:

Dec 31,

2014

File A076-516-026
In the Matter of:

NUNEZ-RODRIGUEZ,

MARCELO

Attached is a copy of the written decision of the Immigration Judge.

\,

This decision is final unless an appeal is taken to the Board of


Immigration Appeals.
Notice of Appeal,
Representative,

The enclosed copies of

and FORM EOIR 27,

properly executed,

FORM EOIR 26,

Notice of Entry as Attorney or


must be filed with the Board of

Immigration Appeals on or before


The appeal must be accompanied by proof of paid fee

($110.00).

Enclosed is a copy of the oral decision.


Enclosed is a

transcript of the

testimony of record.

You are granted until

to submit a brief

to this office in support of your appeal.


Opposing counsel is granted until
brief in oppos

n to

the

--;J.

\6

of the ._ JJ_nrn.fgfation Judge.

Enclosed is a
All papers

to submit a

ourt shall be accompanied by proof

ervice upon opposing counsel.


Sincerely,
KARI
cc:

OHS/BICE/ATTORNEY JEBSON

Immigration Court Clerk

UL

Immigrant & Refugee Appellate Center | www.irac.net

Delgado Law,

MI

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DETROIT, MICHIGAN

December 31, 2014

File No.: A076-516-026

NUNEZ-RODRIGUEZ, Marcelo
Respondent

)
)
)
)
)
)

In Removal Proceedings

DETAINED
. .

Charge:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA" or


"Act"), as amended, in that you are an alien present in the United States
without being admitted or paroled, or who arrived in the United States at
any time or place other than as designated by the Attorney General.

Application:

Motion to Reopen.

ONBEHALF OF RESPONDENT

ONBEHALF OF THE GOVERNMENT

Cristina R. Delgado, Esq.


3200 Greenfield Rd., Suite 355
Dearborn, MI 48120

Mark Jebson, Senior Attorney


Department of Homeland Security
Immigration and Customs Enforcement
333 Mount Elliott, Second Floor
Detroit, MI 48207

ORDER OF THE IMMIGRATION JUDGE


I. PROCEDURAL HISTORY

Respondent, Marcelo Nunez-Rodriguez, is a thirty-one-year-old male, native and citizen


of Mexico. He seeks to reopen removal proceedings to rescind an in absentia removal order1
and to apply for adjustment of status under the Act.

Respondent argues that his motion is not

untimely because he was not served with his Notice to Appear ("NTA"), he did not receive
notice of his hearing before the Immigration Judge ("Ir), and he was unaware that he needed to

Respondent was ordered removed to Mexico in absentia on April 19, 2000. Order ofthe 1J (Apr. 19, 2000).
The Court notes that although respondent states in his motion that he seeks to apply for adjustment of status,

he failed to submit the requisite supporting documents. See 8 C.F.R. 1003.23(b)(3).

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In the Matter of:

3
report a change of address to the Court. Respondent's Motion to Reopen (Dec. 5, 2014)
[hereinafter "Respondent's Motion"]. Respondent alternatively argues that even if notice was
properly served, his case should be reopened on the basis of changed circumstances arising after

he is eligible for relief under the Deferred Action for Parental Accountability ("DAPA")
pursuant to a recent presidential executive order. Id.
The Department of Homeland Security ("DHS" or "Government") opposes reopening
proceedings. The Government argues that respondent's motion is untimely and is not excused
by an alleged lack of notice because he was personally served with his NTA and relevant
advisals. DHS's Answer (Dec. 12, 2014). Moreover, the Government claims that respondent is
ineligible for adjustment of status under the Act because he entered without inspection. Id.
Finally, the Government states that whether respondent is eligible for DAPA is irrelevant to
these proceedings because the executive order does not become effective until 2015, and
jurisdiction to grant such relief is within the sole purview of the United States Citizenship and
Immigration Services ("USCIS"). Id.
II. LEGAL STANDARDS

A motion to reopen may be filed before the Immigration Court within ninety days of the
final administrative order of removal, deportation, or exclusion.
1003.23(b)(l).

INA 240(c)(7); 8 C.F.R.

A motion to reopen will not be granted unless the IJ is satisfied that the

evidence sought to be offered is material, was not previously available, and could not have been
discovered or presented at the former hearing. 8 C.F .R. 1003 .23(b )(3). The decision to grant

This case was initiaJly heard by IJ Elizabeth A. Hacker. IJ Hacker retired on January 2, 20 13. This Court

assumed responsibility for the matter from that date. Pursuant to 8 C.F.R. 1240. l(b), the IJ has reviewed and
become familiar with the entire record.

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his hearing, namely his marriage to a United States citizen. Id. Finally, respondent asserts that

c
or deny a motion to reopen is within the discretion of the IJ, and the motion may be denied even
if the moving party has made out aprimafacie case for relief. 8 C.F.R. 1003.23(b)(l)(iv).
An alien ordered removed in absentia can seek the rescission of the removal order,

Court within 180 days of the date of the in absentia removal order if the alien demonstrates that
his failure to appear was because of exceptional circumstances; (2) at any time if the alien
demonstrates that he did not receive notice of the date, time, and place of the hearing; or (3) the
alien demonstrates that the alien was in Federal or State custody and the alien's failure to appear
was through no fault of his own. INA 240(b)(5)(C); 8 C.F.R. 1003.23(b)(4)(ii)-(iii). Only
one such motion is permitted. 8 C.F.R. 1003.23(b)(l).
To initiate removal proceedings under INA 240, the Government must provide written
notice, in the form of an NTA. The charging document must notify the alien of his immediate
obligation to provide the Government and the Court with a written record of an address and
telephone number, and a written record of any change to the same. INA 239(a)(l)(F)(i)-(ii).
Further, the charging document must notify the alien of the consequences of failing to adhere to
his obligations. INA 239(a)( I )(F)(iii).
The Court must also provide written notice of the date, time, and place of proceedings to
the alien or his counsel. INA 239(a)(l )(G)(i); 8 C.F.R. 1003.18(a). The notice must inform
the alien of the consequences of failing to appear at a scheduled hearing. INA 239(a)(l)(G)(ii).
Service by mail is considered sufficient if there is proof of attempted delivery at the most recent
address provided by the alien. INA 239(c); 8 C.F.R. 1003.26(d). No notice is required if the
alien has failed to provide his address or change of the same. INA 239(a)(2)(B); 8 C.F.R.
1003.26(d). If the Government establishes that an alien is removable, and that the alien

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provided he properly files a motion to reopen. The motion to reopen must: (1) be filed with the

received written notice of the time, place, and initiation of his removal proceedings pursuant to
the Act, the Court shall order removed in absentia any alien who fails to appear at his removal
proceedings. INA 240(b)(5)(A); 8 C.F.R. 1003.26(c).

665 (BIA 2008), held that when a respondent seeks to reopen proceedings based upon a claim
that a written hearing notice sent by regular mail was not received, the pertinent inquiry is
whether the respondent has presented sufficient evidence to overcome the presumption of
delivery. Id. at 673-74. The Board noted that the presumption of delivery for regular mail is
weak.er than the presumption for delivery of certified mail. Id. However, once a respondent is
served with an NTA that informs him of his duty to update his address with the Immigration
Court, the respondent must comply with this requirement. Id. The Board declared that "a
respondent cannot evade delivery of a properly sent Notice of Hearing by relocating without
providing the required change of address and then request reopening of in absentia proceedings
on the basis of a claim that he did not receive notice." Id at 675.
III. DISCUSSION AND ANALYSIS

The Court denies respondent's motion to reopen. Respondent's lack of notice claim fails
because the record shows that respondent was personally served his NTA. He was thereby
apprised of the consequences of failing to notify the Court about a change of address and failing
to appear for a scheduled hearing. Further, the Court declines to reopen proceedings to
adjudicate respondent's underlying claim for adjustment of status when respondent has not
demonstrated his primafacie eligibility for such relief.
The Court first addresses respondent's lack of notice claim. Respondent asserts that he
was not served his NTA and thus did not receive the requisite notice. Respondent's Motion.

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The Board of Immigration Appeals ("BIA" or "Board") in Matter ofM-R-A-, 24 I&N Dec.

c
However, the record clearly shows otherwise. The NTA indicates that respondent was
personally served on October 21, 1999, and received oral notice in Spanish about the
consequences of failing to appear for his scheduled hearing. Exhibit ("Exh.") I. Moreover,

therein. Id. Thus, respondent's contentions that he was not personally served and did not
receive notification in Spanish are without merit.
Relatedly, respondent contends that he was unaware of the nature of the documents that
he signed because at the time, he was only sixteen-years-old. Respondent's Motion. This
argument is also without merit. The Board has held that personal service of an NTA on a minor
aged fourteen-years-old or older is effective, and notice need not be given to an adult with
responsibility for the minor. Matter of Cubor-Cruz, 25 l&N Dec. 470, 470 (BIA 201 1).
Because the record definitively shows that respondent was personally served with his NTA, and
service was proper, respondent's argument fails.
Respondent also claims that he did not receive notice of his scheduled hearing and that he
was unaware of his obligation to notify the Court about any change of address. Respondent's
Motion. However, respondent did in fact receive his NT A in person, which informed him of his
duty to report to the Court about any change of address. Exh. 1. Respondent was also orally
informed of these obligations in Spanish. Id. Because respondent was properly apprised of his
duty and did not note any address change as required, he cannot now claim lack of notice on the
grounds that he did not receive his hearing notice. See M-R-A-, 24 I&N Dec. at 674-75.
Further, the record shows that the Court attempted delivery of respondent's hearing notice by
regular mail at the last-known address provided by respondent, thereby demonstrating sufficient

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respondent signed his NT A to acknowledge appropriate service, and his fingerprint also appears

.... ,

service. Notice of Hearing in Removal Proceedings (Jan. 26, 2000). Thus, the Court finds that
respondent's lack of notice claim fails.
The Court next addresses respondent's alternative argument that even if he received

after his hearing. Respondent submits evidence of his marriage to a United States citizen and
his relationship with his United States citizen stepdaughter to support his claim for adjustment
of status.4 Respondent's Motion.
However, respondent's subsequent marriage does not excuse him from the filing
deadlines enumerated in the regulations. 5 Even if it did, respondent has not demonstrated his

prima facie eligibility for adjustment of status under INA 245(i). 6 Respondent has shown only
that he is married to his United States citizen wife, and alleges that he has no criminal record.
Respondent's Motion. Without more, the Court declines to reopen proceedings to adjudicate
this request for discretionary relief, especially since respondent has not submitted the requisite
supporting documents. Moreover, even if respondent did establish prima facie eligibility for
adjustment of status, the Court may still deny his motion to reopen as a matter of discretion.

Respondent erroneously cited 8 C.F.R. 1003.2(c)( l ), which pertains to motions before the Board, as the legal

basis for his bringing his adjustment o f status claim before the Immigration Court. The appropriate standard for
motions before the Immigration Court is, in pertinent part, 8 C.F.R. l003.23(b)(3) ("A motion to reopen for
the purpose of providing the alien an opportunity to apply for any form of discretionary relief will not be
granted if it appears that the alien's right to apply for such relief was fully explained to him or her by the
Immigration Judge and an opportunity to apply therefore was afforded at the hearing, unless the relief is sought
on the basis of circumstances that have arisen subsequent to the hearing.").

5 Respondent married his United States citizen spouse on May 3, 2012.


Respondent's Motion, Tab D. The
Court notes that changed circumstances are an exception to the time and numerical limitations for motions to

reopen only if the basis of the motion is to apply for asylum or withholding o f removal.
I 003 .23 (b)(4)(i).

8 C.F.R.

The Government argues that respondent is ineligible for adjustment of status under INA 245(a) because

respondent was not inspected and admitted or paroled. DHS's Answer; see also Exh. I.

Although this is

accurate, upon close reading of respondent's motion, it appears that respondent would seek adjustment under
INA 245(i). Respondent's Motion ("Here, Respondent is now eligible to apply for an adjustment ofstatus and
a waiver of physical presence as a result of his marriage to a USC wife."). However, respondent has not
indicated a basis for seeking adjustment of status under section 245(i), and a 20 12 marriage does not provide
such a basis.

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proper notice, proceedings should be reopened on the basis of changed circumstances arising

c
Finally, the Court will not address respondent's claim that he is eligible for relief under
DAP A.

As properly noted by the Government, the executive order does not come into force

until 2015, and when it does, this Court will have no jurisdiction to grant or deny such a benefit.

claim has no bearing upon these proceedings.


IV. ORDER

IT IS HEREBY ORDERED that respondent's motion to reopen be DENIED.

Hon. avid H. Paruc


U.S. Immigration Judge

Date

Appeal Due Date:

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Jurisdiction to do so rests solely with the USCIS, not the Court. Thus, respondent's DAPA