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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - HLG


1717 Zoy Street
Harlingen, TX 78552

Name: HERNANDEZ-DIAZ, HENRY NOE

A 088-347-822
Date of this notice: 4/11/2016

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

DorutL ca.AA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.
Guendelsberger, John
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Henry Noe Hernandez Diaz, A088 347 822 (BIA April 11, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Velasquez, Amy Lynn


Velasquez Law Group, LLC
500 Old Bremen Rd., Suite 105
Carrollton, GA 30117

U;S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A088 347 822 - Harlingen, TX

Date:

In re: HENRY NOE HERNANDEZ DIAZ

APPEAL
ON BEHALF OF RESPONDENT: Amy L. Velasquez, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of Honduras, was ordered removed in absentia on
January 12, 2009. The respondent filed a motion to reopen on January 13, 2015, leging a lack
of proper notice and also alleging exceptional circumstances prevented him from appearing at his
hearing. The Immigration Judge denied the motion on January 29, 2015, and the respondent
timely appeals. The Department of Homeland Security (OHS) has filed no response to the
appeal. The appeal will be sustained and the record will be remanded.
We have considered the totality of the circumstances presented in this case, including that
when the respondent was age 17, his sponsor abandoned him, and find that an exceptional
situation has been demonstrated warranting reopening to allow the respondent another
opportunity to apply for relief from removal. See 8 C.F.R. 1003.23(b)(l) Matter of J-J-,
21 I&N Dec. 976 (BIA 1997). Accordingly, the appeal will be sustained, the proceedings will be
reopened, and the record will be remanded.
ORDER: The appeal is sustained, the proceedings are reopened, and the record is
remanded to the Immigration Court for further proceedings.

Cite as: Henry Noe Hernandez Diaz, A088 347 822 (BIA April 11, 2016)
__ f&.w

JD.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

UNITED STATES DBPARTMENT OF rusncE


EXECUTIVE OFFICE FOR IMMIGRATION REVIBW
HARLINGEN ll\llMIORATION COURT
HARUNOEN, 11DCAS

HBNR)"NOEHBANDEZ..DIAZ
RESPONDENT
APPLICATIONS:

Jan

Case Number: A 088 347 822

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lnRemoval Proceedings

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Motion to Reopen
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ON BEHALF QF THB RBSPQNDENI.


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Delia I. Gonzalez. ACC -

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Amy L. Velasquez, Bsq.


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SOO Old.Bremen Rd.,Suite 1 OS
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On January 12, 2009, the Court ordered the respondent removed to: Homluras l,fabaeiiiirn
pursuant to section 240(bXS)(A).oftbe Immigration and Nationality Act (IN or Act). di January
13, 2015, the respondent. through counsel. filed a motion to argulna. The Department of
Homeland Security (DHS) bas since filed aresponse in opposition to therespondent1s motion. The

respondent'nnotioa to reopen will be denied.
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In his statement submitted in 9UppOl't of the motion to reopen. the respondent states that be
was sixteen years old when he was apprehended by immigration officials. the tliie he
released into the care ofa family mend. Jose Samoa Juarez, he had turned yeaic,kl.
respondent states that he went to live with Mr. Juarez in Carrollton, Oeoqia ltr. saimt1 ::o
moved k to H a month later. The respondent went to live with re
responclentaven that be did not understaadtbe process and that Mr. stokl
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The record retlts that the respondent was personally served with theoticqo
(NTA) on April 8, 2008. Exh. #1. Because the respondent was an - minor. he was
transferred into the care of the Office of Refugee R where he received four hearins
notices. Upon reunification with Mr. Juara, the respondent ieported that his address would be "'c/o
Jose Santos Juarez 204 A7.alea Pl Carrollton. OA 30117... Bxh#2.(Notice to BOlR: Alien Address)
(Fonn 1-830). A Notice of Hearing (NOH)dated Oetober 27, 2008 was mailed to the iespondent at
the exact addJas provided. in Fonn 1830, ittfonning the respondent ofhis January 12. 2009removal

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN THE MA1TBR: OF

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TheComt concludes the respondent mu be charged with having received propernoticeofhis


removal hearing in accordance with section 239(a)(l) ofthe Act The Notice ofHearing containing
information concei;ning the respondent's January 12t 2009 removal hearing was mailed to the
respondent at his most recent address under section 239{a)(1 )(F) ofthe Act. The most recent addles.,
provided by the respondent was the address he reported in Form I-830. Bxh. #2. The hearing notice
mailed to this address was returned to the Court marked "Not deliverable as,, Bxh. #3.
The Cowt concludes that this constituted proper notiee to the respondent of bis hearing because
''there is proof of-attempted delivery to the last address provided by the alien in accordance with
.subsection (a)(l)(F)." INA 239(a)(2){A). (c); I C.F.R. 1003.1 S(b), 1003.26(c) and (d). This
finding is further supported by the respondent's affidavit submitted in support of his motion to
reopen. which asserts that he only lived with Mr. Juarez for about a month before he had to move in
with other relatives. There is no evidence that the respondent provided the Court with written notice
of his change of address. INA 239(a)(l)(F). A removal order entered in absentia should not be
rescinded where the failure to receive actual notice was due to the alien's neglect ofhis obligation to
keep the Court apprised of bis address. Lopez-Dubo,i v. Holder. 609 F.3d 642. 647 (5th Cir. 2010).
Based on all ofthe above, the Court ludes that the respondent has not demo.astratecl that he did
not receive proper notic.e of his removal bearing. and his proceedings will not be reopened under
section 240(bXS)(C)(ii) of tho Act.
To the extent the respondent seoks reopening to apply for new relief ftom removal, such as
adjustment of status, the Court finds that the motion is untimely. INA f 240(cX7)(C)(i) (requiring
that motions to mopen be filed within 90 days after the date of the order of rmioval).
Finally. the Court concludes theeiftJums1ances ofthis case do not warrant theexeldsoofdle
Court's limited discretion 10 reopen""' aponte. See Matte, ofJ.J, 21 LIN 1*. 976 (BIA 1997).
The fact that an alien has become potentially eligible forsomo form ofrelief&om removal due to the
passage of time, without more, ls not ordinarily sufficient to warrani zeopening""' ,ponte.
Accordingly,. the. followina orden shall be entered:
ORDER: The respondent's motion to reopen is DBNJBD.

David Ayala
United States Immigration Judgo

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Immigrant & Refugee Appellate Center, LLC | www.irac.net

hearing in Harlingen. Texas. Exh. #3. This hearing notice wu returned to the Court by the United
States Postal Service with a sticker n :the envelope indicating.that the letter was being. returned
because it was "NOT DEUVERABLE AS ADDRESSED.' The Court's decision containing the
removal order entered in absentia wq similarly.mailed to the respondent at the address provided by
the respondent Fonn 1-830 and returned is undeliverable.

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CERTIFICATE OF SBRVICE
THIS DOCUMENT WAS SERVED BY: MAIL GY!})PBRSONAL SERVICJti}}
TO: ( ) ALIEN ( )ALIEN C/0 CUSTODIAN IBN'S A1frY/REP
DATE: .J--o-1$
BY:COURTSTAFF_,,,_....--1
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ATIAciiMBNTS:() BOIR-33 < > BOIR-21 > Liif'AI;, sBR.Vlcss LIST ?TimR

UNITED STATES DEPARTMENT OF nJSTICE


BXBCUTIVE OFFICE FOR IMMIGRATION REVIEW
HARLINGEN lMMIORATION COURT
HARIJNOFN, mxAS-

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HBNR)' NANDEi-DIAZ

RESPONDENT

APJ;LICATIONS:

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Case Number: A 088 347 822


In Removal Proeeedings

Motion to Reopen
.

ON .BEHALF OP .Tiffi GOYBRNMBNT


Delia I. Gonzalez, ACC -
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U,S. DepartmentofHomeind ty !
1717 Zoy Street
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TX -78S52 "Tl=!
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ON BEHALF OF D:m BB&PQNDENT,


Amy L. Velasquez, Bsq.
Velasquez Law Group
SOO Old Bremen Rd., Suite 1 OS
Carrollton, GA 30117
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On JIDUII)' 12, 2009, the Court oRleiecl the respondent removed toffomluras ,ia,,
pursuant to section 240(bXS)(A).ofthe lmmipdion and Nationality Aot or Act). di January
13, 201s. the respondent. tbrollp counsel, filed a motion to reopen argqm&. Tho Department of
Homeland Sceurity (DHS) bas since flied a.response in opposi1ion to thenspoildeat1s motion. The
respondent's motion to reopen will be denied.
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In his statement submitted in support of the motion to reopen. the respmulent states that ho
was sixteen years old when he wis apprehended by immipltion officials. die tiiie he
released into the care ofa family fiiendt Jose 8aatos Juarez, be hatl turned sev
respondent states that he went to live with Mr. Jwnz in Canollton, lfr. -;

moved bac;k to H a month later. The responclent went to live with


respondent avers that he did not understand the court process and that Mr. Jtold
him
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bad received any letters COIIL'M'n"'
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The record reflects that the respondent was personally served with 1he A
(NTA) on April 8, 2008. Exh. #1. Because the respondent was an -minor. he was
transferred blto the care of tho Office or Refugee Resettlement, wlNn he received four hearins
notices. Upon reunification with Mr. Juarez. theNSpOndent ieported that his address would be "c/o
Jose Santos 1uarez204 Amlea Pl Carrollton. GA 30117." Bxh. #2 (Notic,e to F,Olll: Alien Address)
(Form 1-830). A Notice of Hearing (NOH)dafed October 27, 2008
to 1he respondent at
the exact adchas provided in Fonn 1830, fmbnnins the respondent ofhis January 12, 2009Nftl0Vll

was-

Immigrant & Refugee Appellate Center, LLC | www.irac.net

concludes

TheComt
the respondent can becharaecf with having receivod piopernoticeofhis
removal hearing in accordance with section 239(a)(l) ofthe Aet. The Notice ofHearing containing
information concerning the respondent's January 12, 2009 removal hearing was mailed to the
respondent at his most recent address under section 239(a)(1 )(F) ofthe Act. The most recent address
provided by the respondent was the address he reported in Form 1-830. Bxh. #2. The hearing notice
mailed to this address was returned to the Court marked "Not deliverable as addressed." Bxh. #3.
The Court concludes that this constituted proper notige to the respondent of bis hearing because
"there is proof of attempted delivery to the last address provided by the alien in accordance with
.subsection (aXl)(F)." INA 239(a)(2)(A). (c); I C.P.Jl. 1003.lB(b), l003.26(c) and (d). This
fmding is further supported by the respondent's affidavit submitted in support of his motion to
reopen, which asserts that he only lived with Mr. Juarez for about a month before he had to move in
with other relatives. There is no evidence that the respondent provided the Court with written notice
of his change of address. INA 239(a)(l)(F). A removal order entered in absentia should not be
rescinded where the failure to receive actual notice was due to the alien's neglect ofhis obligation to
keep the Court apprised of bis address. Lopn-Dubo,i v. Holder, 609 F.3d 642. 647 (5th Cir. 2010).
Based on all ofthe above, the Court concludes that tho respondent has not demonstrated that he did
not receive proper notic.e of his removal hearin& aad his proceedinp will not be teopened under
section 240(bXSXCXii) of the Act.
To the extent the respondent seeks reopening to apply for new reliefftom removal. such as
adjustment of status. the Coult finds that the motion is untimely. INA f 240(c)(7)(C)(i) (requiring
that motions to mopen be filed within 90 days after tho date of the Older offl:IDOval).
Finally. theComt ooncludes tllecimJma1ances ofthis case do not warrant theexeidseof1he
Courts limited discMion to reopen 11111 aponte. See Matte, ofJ.J, 21 l&N Dee. 976 (BIA 1991).
The fact that an alien bas become potentially eligible for some form ofmlieftrommnoval clue to the
passage of time, without more, ls not ordinarily sufficient to warrant reopening 11111 ,ponte.
Accordinaty, 1he followins orders sball be entered:
ORDER: The respondent's motion to reopen is DBNIBD.

\j,

David Ayala
United States Immigration Judge

'!J.rn.l

Immigrant & Refugee Appellate Center, LLC | www.irac.net

hearing in Harlingen, Texas. Bxh. #3. This hearing noti was returned to the Court by the United
States Postal Service with a sticker n :the envelope indicating that the letter was being. returned
because it was ''NOT DEUVB AS DRESSED." The Court's decision containing the
removal order entered in WQ similarly mailed to the respondent at the address provided by
the respondent F 1-830 and returned is undliverable.

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CBRTIFICATB OF SBRVICB
BY: MAILCfiD)PERSONAL SBRVICl(il>')
SERVED
THIS DOCUMENT WAB
TO: ( ) AL1BN ( )ALIEN C/0 CUSTODIAN lt1'4JJEN'S A'JhYIREP.f)l)f{S
f:J.
........______
DATE
J--30-.j,,,,& BY: COURT STAFF __...."7._,...
LIST
SERVICES
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