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U.S.

Department of Justice

Executive Office for Immigration Review


Board of Immigration Appeals
Qffice of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - MEM


80 Monroe Ave., Ste 502
Memphis, TN 38102

Name: TULUL TUM, MYNOR SEBASTIAN

A 205-756-304

Date of this notice: 3/8/2016

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

DOYLIU- C

WV\)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
Neal, David L
O'Herron, Margaret M

Use rteam= Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Mynor Sebastian Tulul Tum, A205 756 304 (BIA March 8, 2016)

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Bingham Ill, Ellis Dean


Bingham at Law LLC
218 16th Street North
Bessemer, AL 35020

U.S. DepaAment.of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A205 756 304 - Memphis, TN

Date:

In re: MYNOR SEBASTIAN TULUL TUM

MAR - 8 2015

APPEAL
ON BEHALF OF RESPONDENT: Ellis D. Bingham III, Esquire
APPLICATION: Reopening

ORDER:
The respondent appeals from the Immigration Judge's October 24, 2014, order denying his
motion to reopen. The respondent was ordered removed in absentia on July 31, 2013. We
review an Immigration Judge's findings of fact for clear error, but questions of law, discretion,
and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R. 1003.l(d)(3)(i),
(ii). On review, in light of the totality of the circumstances presented in this matter, we will

reopen proceedings and allow the respondent another opportunity to appear for a hearing.
Accordingly, the appeal is sustained, the proceedings are reopened, and the record is remanded
to the Immigration Court for further proceedings consistent with the foregoing opinion and the
entry of a new decision.

Cite as: Mynor Sebastian Tulul Tum, A205 756 304 (BIA March 8, 2016)

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IN REMOVAL PROCEEDINGS

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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
MEMPHIS, TENNESSEE

TULUL-TUM, MYNOR SEBASTIAN


A205-756-304
RESPONDENT

APPLICATION:

)
)
)
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)
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October

Z4, 2014

Motion to Reopen

ON BEHALF OF RESPONDENT
Ellis D. Bingham, III, Esq.
Bingham at Law, LLC
218 16th Street North
Bessemer, AL 35020

ON BEHALF OF DHS
Jonathan M. Larcomb, Esq.
Assistant Chief Counsel
167 N. Main Street, Room 737A
Memphis, TN 38103

DECISION ON MOTION BY THE IMMIGRATION JUDGE


I.

PROCEDURAL HISTORY

Mynor Sebastian Tulul-Tum (Respondent) a native and citizen of Guatemala,


entered the United States at or near Laredo, Texas, on or about November 11, 2012. On
November 14, 2012, Respondent was personally served with a Notice To Appear (NTA),
which charged him as removable under INA 212(a)(6)(A)(i) (entry in the United States
without being admitted or paroled). Exh. 1. The NTA scheduled Respondent for a
master calendar hearing before the Portland Immigration Court at a date and time to be
set. Id On December 2, 2012 the Portland Immigration Court mailed and faxed a Notice
of Hearing to Respondent, care of a custodial officer, which directed him to appear for a
master calendar hearing on December 13, 2012. Respondent appeared for that hearing
and his case was set for a master calendar hearing on March 21, 2013. On or about
December 23, 2012, Respondent was released from HHS custody and reported that he
would live with Cristobal Tzep Ixtos at 1407 York Street, Sheffield, AL 35660. On
January 3, 2013, Immigration Judge Andrea Sloan transferred the jurisdiction of
Respondent's case to this Court. Exh. 2. This Court, on January 10, 2013, mailed
Respondent a Notice of Hearing for a master calendar hearing on July 31, 2013.
Respondent failed to appear for this hearing and the Court ordered Respondent removed
in absentia to Guatemala.

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IN THE MATTER OF:

II. ANALYSIS
According to the Immigration and Nationality Act (INA), as well as federal
regulations, an order of removal entered in absentia pursuant to INA 240(b)(5)(A) may
be rescinded upon a motion to reopen filed in only one of the following ways: (i) within
180 days after the date of the order of removal if the alien shows that the failure to appear
was due to exceptional circumstances, or (ii) at any time if the alien demonstrates that he
or she did not receive notice in accordance with INA 239(a)(l) or (a)(2). INA
240(b)(5)(C); 8 C.F.R.1003.23(b)(4)(ii) (2013). Furthermore, the filing of said motion
shall stay the removal of the alien pending disposition of the motion by the Immigration
Judge. INA 240(b)(5)(C); 8 C.F.R.1003.23(b)(4)(ii). An alien may file only one
such motion to reopen. 8 C.F.R.1003.23(b)(4)(ii).
As Respondent claims a lack of notice, he must demonstrate that he did not
receive notice in accordance with INA 239(a). INA 240(b)(5)(C)(ii); 8 C.F.R.
1003.23(b)(4)(ii). INA 239(a) provides that in removal proceedings the NTA and all
notices of hearing "shall be given in person to the alien (or, if personal service is not
practicable, through service by mail to the alien or to the alien's counsel of record, if any)
.. . ." INA 239(a). An Immigration Judge is authorized to proceed in absentia if DHS
"establishes by clear, unequivocal, and convincing evidence that the written notice was so
provided and that the alien is removable." INA 240(b)(5)(A).
Service by mail is sufficient if there is proof of attempted delivery to the last
address provided by the alien in accordance with INA 239(a)(l )(F). INA 239(C); see
INA 240(b)(5)(A); see also 8 C.F.R. 1003.26(d) (2013). Service means physically
presenting a document or mailing it by "regular mail" to the appropriate party or parties.
8 C.F.R. 1003.13 (2013). Under INA 239(a)(l )(F), the alien has the obligation to
immediately provide (or have provided) a written record of his or her most recent address
and continually update the Court as to any change of address. INA 239(a)(l)(F)
(emphasis added). For aliens not in detention, written notices of hearing are not required
if the alien has failed to provide the address required under INA 239(a)(l)(F). INA
239(a)(2)(B); see INA 240(b)(5)(B); see also 8 C.F.R. 1003.26(d). When an alien
fails to appear at removal proceedings for which notice of the hearing was served by
mail, an in absentia order may only be entered where the alien has received, or can be
charged with receiving, a Notice to Appear informing the alien of the statutory address
obligations associated with removal proceedings and of the consequences of failing to
provide a current address, pursuant to INA 239(a)(l)(F). Matter ofG-Y-R-, 23 I&N
Dec. 181, 189-90 (BIA 2001).

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On September 6, 2014, Respondent, through counsel, filed a Motion to Reopen


with the Memphis Immigration Court. The Motion to Reopen alleges that Respondent's
case should be reopened because Respondent did not receive notice of his July 31, 2013
hearing. Respondent's Motion to Reopen at 1. The Department of Homeland Security
(DHS) filed a response to Respondent's Motion to Reopen on September 8, 2014.
Respondent's Motion to Reopen is now ripe for decision.

The Court does not find that Respondent has demonstrated that he did not receive
notice in accordance with INA 239(a). Respondent was personally served with the NTA
on November 14, 2012, as evidenced by his signature on the document. Exh. 1. Upon
release from HHS custody on or about December 23, 2012, Respondent reported that he
would be living with Cristobal Tzep Ixtos at "1407 York Street, Sheffield, AL 35660."
On January 10, 2013, this Court mailed to Respondent, at that address, a Notice of
Hearing, directing him to appear before this Court on July 31, 2013. Exh. 3. Respondent
argues that this Notice of Hearing is "ambiguous as to how the notice was delivered to
respondent. The bottom of the notice indicates that the document was served by mail and
personal service to the alien . . .. If the alien was served by personal service, then an order
of removal in absentia could not have been issued. This in turn raises a presumption that
he was never served by mail, because staff believed he was served personally." Motion to
Reopen at 2. The Court does not find Respondent's argument persuasive. At the bottom
of every Notice of Hearing, the Court is given two options for indicating how the
document was served: "Mail (M)" and "Personal Service (P)." On Respondent's Notice
of Hearing, the Court's staff member who completed the Certificate of Service circled
both "M" and "P" on the line how the document was served and marked a "M" next to
"Alien" and a "P" next to "DHS." Exh 3. These notations indicate that Respondent was
served by mail and DHS was personally served. This system of indicating the type of
service is standard procedure by this Court. Had Respondent been personally served, the
Certificate of Service would have included a "P" next to "Alien." The Court does not find
that Respondent's argument that the Court's staff member believed Respondent had been
personally served and as a result did not serve him by mail to have merit. Therefore, the
Court finds that Respondent has not met his burden to demonstrate that he did not receive
notice of the hearing.
Further, Respondent knew that he was in removal proceedings, as is evidenced by
his attendance at the December 13, 2012 hearing before the Portland Immigration Court.
At that time, Respondent's case was set for a hearing on March 21, 2013 and Respondent
was informed both in written form and orally in his native language of his next hearing.
Even if Respondent had not received the notice from this Court of his July 31, 2013
hearing, the Court would have expected the Respondent to have inquired about the status
of his case at some point before he learned of the Order of Removal in absentia on
October 1, 2013. Motion to Reopen at Tab F. Additionally, Respondent states that after
he learned about the Order of Removal, he "immediately hired an attorney to help me
with me [sic] case." Id. The Court notes, however, that Respondent's Motion to Reopen
was not filed for more than 11 months after Respondent "immediately hired" an attorney.
This demonstrates a lack of due diligence on the part of Respondent in rectifying his
immigration proceedings.

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In the present case, Respondent's affidavit simply states that "I did not receive
any notice that I was required to be in Immigration Court in Memphis, Tennessee on July
31, 2013." Respondent's Motion to Reopen at Tab F. DHS opposes Respondent's Motion
as Respondent has not provided evidence to support his unsubstantiated claim that he was
unaware of his hearing. DHS Response at 2.

A party seeking reopening bears a "heavy burden" as motions to reopen are


disfavored. Alizoti v. Gonzales, 4 77 F .3d 448, 451 (6th Cir. 2007) (quoting Doherty v.
INS, 502 U.S. 314, 323 (1992)). Respondent has not met this burden. In sum,
Respondent's Motion to Reopen is denied as he did not demonstrate that he did not
receive notice of hearing and he has not demonstrated prima facie eligibility for relief.
For the foregoing reasons, Respondent's Motion to Reopen is denied.
III. ORDER
For the foregoing reasons, the following ORDER is HEREBY ENTERED:
It is HEREBY ORDERED that Respondent's Motion to Reopen be
DENIED.
DATED this ii day of October, 2014.
Honorable Charles
-
Immigration Judge

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Additionally, any motion to reopen in order to proceed with an application for


relief must be accompanied by the appropriate application for relief and all supporting
documents. 8 C.F.R. 1003.23(b)(3) (2012). Respondent's Motion states that
Respondent "is eligible for relief under the Special Immigrant Juvenile Status."
Respondent's Motion to Reopen at 1. Respondent has attached a Form I-360 Petition for
Amerasian, Widow(er), or Special Immigrant. Id. at Tab C. On this form, Respondent has
indicated that he has been declared dependent by a juvenile court in the United States,
that a juvenile court has declared that reunification with one or both of his parents is not
viable, and that he has been subject of proceedings in which it was determined that it
would not be in his best interest to be returned to his or his parent's country of
nationality. Id. However, Respondent provides no supporting documentation of these
facts. Therefore, the Court cannot find that Respondent has demonstrated prima facie
eligibility for Special Immigrant Juvenile Status.