U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Of
f ice of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Valle-Fabricio, Karin Marie OHS/ICE Office of Chief Counsel - NOL
KVF Immigration Attorneys, LLC 1250 Poydras Street, Suite 2100
P 0 Box 536967
. . New Orleans, LA 70113
Orlando, FL 32853-6967

Name: D -G ,R A 98

Date of this notice: 11/3/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.
Kelly, Edward F.
Kendall Clark, Molly

:
-

Userteam: Docket

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Cite as: R-D-G-, AXXX XXX 498 (BIA Nov. 3, 2017)

U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Palls Chukh, Virginia 22041

File: 498-New Orleans, LA Date:

NOV - 3 2017
In re: R D -G

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Karin M. Valle-Fabricio, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of Honduras, has appealed from the Immigration Judge's
written decision mailed on April 10, 2017, denying his motion to reopen and rescind an in absentia
order ofremoval. The appeal will be sustained and the proceedings will be reopened and remanded,
as discussed below.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003. l (d)(3)(i). We review
all other issues, including issues oflaw, discretion, or judgment, under a de novo standard. 8 C.F.R.
1003.l(d)(3)(ii).

The respondent, a minor, was 8 years old when he did not appear at his March 25, 2015, hearing
in the New Orleans Immigration Court. He was ordered removed in absentia on March 30, 2015.
Subsequently, on March 2, 2017, the respondent submitted a motion to reopen and rescind the in
absentia order of removal, submitting evidence that he was seriously ill around the time of the
hearing and was diagnosed with cancer and hospitalized in April 2015. The respondent also argued
that his father was under a mistaken view about the venue of his case, and that his father's case is
currently pending in another Immigration Court. The Immigration Judge denied the motion to
reopen as untimely, and declined to reopen the proceedings sua sponte (U at 5). 8 C.F.R.
1003.23(b)(l).

Based on the totality of circumstances presented, we find that exceptional circumstances exist
and will reopen the proceedings sua sponte. On remand, the respondent may request that the venue
in his case be transferred to another Immigration Court and that his case be consolidated with his
father's case. Based on the above, the following order shall be entered.

ORDER: The appeal is sustained, the proceedings are reopened, and the record is remanded
to the Immigration Court for further proceedings consistent with this decision.

Cite as: R-D-G-, AXXX XXX 498 (BIA Nov. 3, 2017)

 ( I

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1 CANAL PL-365 CANAL ST, 2450A
NEW ORLEANS, LA 70130

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KVF Immigration Attorneys, LLC
Valle-Fabricio, Karin Marie
P.O. Box 536967
Orlando, FL 32853

Date: Apr 10, 2017

File 498

In the Matter of:

D -G , R

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. The enclosed copies of FORM EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or
Representative, properly executed, 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 to submit a

brief in opposition to the appeal.

X Enclosed is a copy of the order/decision of the Immigration Judge.

All papers filed with the Court shall be accompanied by proof

of service upon opposing counsel.

Sincerely,

DJS
Immigration Court Clerk UL
cc: CHIEF COUNSEL
1250 POYDRAS ST, SUITE 2100
NEW ORLEANS, LA 70113
 ( (

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
NEW ORLEANS, LOUISIANA

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)
IN THE MATTER OF ) IN REMOVAL PROCEEDINGS
)
D -G ,R ) File: 498
)
Respondent )

CHARGE: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act

APPLICATION: Motion to Reopen

ON BEHALF OF RESPONDENT: ON BEHALF OF DBS:

Karin M. Valle Fabricio, Esq. Frederick Veters, Jr., Esq.
P.O. Box 536967 Department of Homeland Security
Orlando, FL 32853 U.S. Immigration & Customs Enforcement
1250 Poydras St., Suite 2100
New Orleans, LA 70113

DECISION OF THE IMMIGRATION JUDGE

Respondent is a minor, native and citizen of Honduras. Respondent was placed in

remov proceedings after the Department of Homeland Security (DHS) issued a Notice to
Appear (NTA) charging him pursuant to 212(a)(6)(A)(i) of the Immigration and Nationality
Act (INA) on May 24, 2014. Exh. 1.

Respondent, through his father, was personally served with the NTA, which included
notice of both his obligation to update the hnmigration Court with any change in address and the
consequences of failing to appear. Exh. 1. Respondent provided DHS and the hnmigration Court
with the address of 8651 Pond Avenue, Apartment A, Pensacola, FL 32534.

Respondent's Master Calendar Hearing was originally scheduled before the Orlando
hnmigration Court on October 6, 2014, at l:OOPM. Respondent, with his father, appeared at this
hearing and requested a change of venue to the New Orleans Immigration Court, stating that
New Orleans was six hours closer than Orlando to the family's home in Pensacola. DHS did not
oppose the motion and venue was changed to New Orleans on October 6, 2014. Exh. 2.
Respondent and his father were personally served with the Order changing venue. Id.
 ( (
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D -G R
Page2 of6

Respondent's Master Calendar Hearing before the New Orleans Immigration Court was
initially set for October 24, 2014, before being rescheduled to October 31, 2014. Respondent was
served with two Notices of Hearing (NOH) informing him of the date, time, and location of both
hearings, at the Pensacola address that he provided to DHS and the Court. He appeared with his
father in the New Orleans Immigration Court on October 31, 2014, and obtained a continuance

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to March 25, 2015, at 2:00PM, in order to secure representation. At this hearing, Respondent was
personally served with notice of both the March 25 Master Calendar Hearing and the Limitations
on Discretionary Relief for Failure to Appear. Respondent was sent an NOH notifying him of a
change in time from 2:00PM to 1 :OOPM on March 25 at the Pensacola address he previously
provided.

Respondent subsequently failed to appear for his Master Calendar hearing. Removability
was established by clear and convincing evidence. Exhs. 1-4; see 8 C.F.R. 1240.8(a); Woodby
v. INS, 385 U.S. 276 (1966). Therefore, Respondent was ordered removed in absentia pursuant
to the charge contained in the NTA on.March 30, 2015. INA 240(b)(5)(A).

On March 2, 2017, Respondent filed the instant Motion to Reopen. DHS opposes the
motion. The issue now before the Court is the merit of Respondent's motion.

I. STATEMENT OF THE LAW

An Immigration Judge may upon his or her own motion at any time, or upon motion of
DHS or the Respondent, reopen or reconsider any case in which he or she has made a decision,
unless jurisdiction is vested with the Board of Immigration Appeals. 8 C.F.R. 1003.23(b)(l ).

INA 240(b)(5)(A) provides that a Respondent who fails to attend a proceeding shall be
ordered removed in absentia if DHS establishes by clear, unequivocal, and convincing evidence
that written notice, as required under 239(a)(l ) or (2) of the Act, was provided and that the
Respondent is removable. An order of removal issued following proceedings conducted in
absentia may be rescinded only upon a motion to reopen filed before the Immigration Judge.
INA 240(b)(5)(C).

An order of removal entered in absentia may be rescinded only upon a motion to reopen
filed within 180 days after the order of removal if the Respondent demonstrates that "exceptional
circumstances" prevented his appearance. 8 C.F.R. 1003.23(b)(4)(ii). An ordered entered in
absentia may be rescinded upon a motion to reopen filed at any time if the Respondent
demonstrates that he or she did not receive notice in accordance with INA 239(a)( l ) or (2), or
if the Respondent demonstrates that he or she was in Federal or state custody and the failure to
appear was through no fault of their own. 8 C.F.R. 1003.23(b)(4)(ii).

When a Respondent 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 Respondent has
received, or can be charged with receiving, a NTA informing the Respondent 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). No written notice of a change in time
or place of proceedings shall be required if the Respondent failed to provide the address required
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498
D -G R
Page 3 of6

under INA 239(a)( l )(F). Matter of G-Y-R, 23 l&N Dec. 181 (BIA 2001). An order of removal
will not be set aside, even if the alien did not receive notice, if the alien's failure to receive actual
notice was due to his neglect of his obligation to keep the immigration court apprised of his
current mailing address. Lopez-Dubon v. Holder, 609 F.3d 642, 647 (5th Cir. 2010).

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In the case of either the initial NTA for a hearing or any notice of a change in the
scheduled hearing, a Respondent must be properly served in person, or if personal service is not
practicable, through service by mail to the Respondent or counsel of record. According to INA
239(c), "service by mail is sufficient if there is proof of attempted delivery to the last address
provided by the alien'' in accordance with section 239(a)( l )(F), which provides that the NTA
must specifically inform a respondent of the affirmative duty to update his address with the DHS
in writing and to notify the Immigration Court immediately whenever his address or telephone
number changes during the course of the proceedings. See also 8 C.F.R. 1003.15(d) (providing
that an alien must notify the Immigration Court regarding his address and telephone number by
filing a Form EOIR-33). Furthermore, defining the term "service," the regulation at 8 C.F.R.
1003.13 states, in part, as follows: Service means physically presenting or mailing a document to
the appropriate party or parties; .. . a Notice to Appear or Notice of Removal Hearing shall be
served to the alien in person, or if personal service is not practicable, shall be served by regular
mail to the alien or the alien's attorney of record. According to both the statute and the
regulations, therefore, an alien may be served with a NTA or NOH by regular mail. Matter ofM
R-A, 24 I&N Dec. 665, 674, 669-670 (BIA 2008).

A NOH sent by certified mail to the alien's last known address is sufficient to establish by
clear, unequivocal, and convincing evidence that the alien received ''written notice." There is
some presumption of receipt for a NTA or NOH sent by regular mail when the notice was
properly addressed and mailed according to normal office procedures. This presumption,
however, is weaker than that accorded to notice sent by certified mail. Therefore, when a
respondent seeks to reopen proceedings based on a claim of lack of receipt of notice, the
question to be determined is whether the respondent has presented sufficient evidence to
overcome the weaker presumption of delivery attached to notices delivered by regular mail. Id. at
673; see also Maknojiya v. Gonzales, 432 F.3d 588, 589-90 (5th Cir. 2005).

When an Immigration Judge adjudicates a respondent's motion to reopen to rescind an in

absentia order of removal based on a claim that a NTA or NOH sent by regular mail to the most
recent address provided was not received, all relevant evidence submitted to overcome the
weaker presumption of delivery must be considered. In determining whether a respondent has
rebutted the weaker presumption of delivery applicable in these circumstances, an Immigration
Judge may consider a variety of factors including, but not limited to, the following: (1) the
respondent's affidavit; (2) affidavits from family members or other individuals who are
knowledgeable about the facts relevant to whether notice was received; (3) the respondent's
actions upon learning of the in absentia order, and whether due diligence was exercised in
seeking to redress the situation; (4) any prior affirmative application for relief, indicating that the
respondent had an incentive to appear; (5) any prior application for relief filed with the
Immigration Court or any prima facie evidence in the record or the respondent's motion of
statutory eligibility for relief, indicating that the respondent had an incentive to appear; (6) the
respondent's previous attendance at Immigration Court hearings, if applicable; and (7) any other
 ( (
498
D -G ,R
Page4 of6

circumstances or evidence indicating possible non-receipt of notice. Matter of M-R-A, 24 I&N

Dec. at 673-74 (BIA 2008).

When an NTA or NOH is served by regular mail, a Respondent's affidavit that is without
evidentiary flaw may be sufficient to rebut the presumption of effective service. Hernandez v.

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Lynch, - F.3d -, 2016 WL 3202492 (Sth Cir. 2016). When detennining whether a Respondent
has sufficiently rebutted the presumption of notice, courts should weigh the credibility of a
Respondent's affidavit. Id.
Any motion to reopen for the purpose of acting on 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). Motions to reopen will not be granted unless the Respondent establishes prima
facie eligibility for the underlying relief sought. Matter of S-V-, 22 I&N Dec. 1306, 1307 (BIA
2000). Prima facie eligibility is established where "the evidence reveals a reasonable likelihood
that the statutory requirements for relief have been satisfied." Id. at 1308.

An Immigration Court's discretionary power to reopen proceedings sua sponte is limited

to exceptional circumstances. 8 C.F.R. 1003.23(b)( l ); Matter of J-J-, 21 l&N Dec. 976, 984
(BIA 1997). This authority is not treated as a general remedy for hardship created by motions
regulations, but as an extraordinary remedy reserved for truly exceptional situations. Matter of
G-D-, 22 I&N Dec. 1132 (BIA 1999).

II. RESPONDENT'S POSITION

Respondent, through Counsel, contends that the in absentia order of removal should be
rescinded based on exceptional circumstances preventing his appearance at the hearing and his
belief that his case had been transferred to the Orlando Immigration Court. Respondent argues
that he failed to attend the March 25 hearing because he had been at a hospital appointment,
where Respondent had been receiving some form of treatment since March 2015. Respondent
relates that in April of 201S, he was diagnosed with a rare form of cancer and has been receiving
treatment since that time. Respondent contends that he learned of the in absentia order on
January 31, 2017, and that he retained Counsel to reopen proceedings as soon as possible.
Respondent argues that he is prima facie eligible for relief, including asylum and withholding of
removal, and accordingly requests that the in absentia order be rescinded and proceedings be
reopened.

Ill. DHS' POSITION

OHS opposes the Motion to Reopen. OHS contends that Respondent must demonstrate
either that he failed to receive notice of his hearing or that he was in federal or state custody as
his motion to reopen was filed untimely. See 8 C.F.R. 1003.23(b)(4)(ii). DHS maintains that the
presumption of service of notice stands where an NOH was properly sent to the Respondent's
last known address and that Respondent has failed to demonstrate lack of proper notice,
especially as he attended proceedings in New Orleans previously and initially requsted the
change of venue to New Orleans. INA 239(c). OHS argues that Respondent has not alleged
that he was in state or federal custody at the time such that prevented his appearance, or that any
exceptional circumstances existed such that warrant the exercise of the hnmigration Judge's
 ( (
498
D -G R
Page 5 of6

authority to reopen proceedings sua sponte. Accordingly, OHS requests that Respondent's
motion be denied.

IV. ANALYSIS AND CONCLUSIONS

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Respondent was ordered removed in absentia on March 30, 2015. See Order of Removal,
498, dated March 30, 2015. Respondent's motion to reopen was filed almost exactly
two years later, on March 2, 2017. Respondent's motion is therefore untimely as far as it
concerns exceptional circumstances that prevented his appearance at the hearing on March 25,
2015. 8 C.F.R. 1003.23(b)(4)(ii). Even had Respondent's motion been timely, the evidence
Respondent provides to support his claim that he was unable to attend the hearing does not
corroborate that he was prevented from attending on March 25, 2015. See Respondent's Motion
to Reopen, Tab A. The physician's letters Respondent presents corroborate that he entered the
hospital for treatment on April 12, 2015, several weeks after this March 25 hearing date. Id. No
evidence therefore supports his assertion that exceptional circumstances prevented his attendance
on that date. See id.

Respondent must therefore demonstrate either that he failed to receive notice of his
hearing, or that he was in state or federal custody at the time and that his failure to appear was
consequently no fault of his own. 8 C.F.R. 1003.23(b)(4)(ii). A weaker presumption for receipt
of notice applies in this case as the NOH was served by regular mail, as opposed to certified mail
or personal service. Matter of M-R-A, 24 I&N Dec. at 673; Maknojiya, 432 F.3d at 589-90; Exh.
3. When an Immigration Judge adjudicates a respondent's motion to reopen to rescind an in
absentia order of removal based on a claim that a NTA or NOH sent by regular mail to the most
recent address provided was not received, all relevant evidence submitted to overcome the
weaker presumption of delivery must be considered. Matter of M-R-A, 24 I&N Dec. at 673-74.
As evidence, Respondent submits only letters from doctors attending him during a hospital stay
in April 2015. See Respondent's Motion to Reopen.

Respondent does not allege that he failed to receive notice of his hearing. Id. Citing 8
C.F.R. 1003.23(b)(4)(ii), Counsel for Respondent alleges that exceptional circumstances
prevented his attendance at the hearing and that his failure to appear was through no fault of his
own. Respondent does not, however, allege that he was in state or federal custody at the time of
his hearing, and therefore fails to trigger this exception to the requisite filing deadlines. 8 C.F.R.
1003.23(b)(4)(ii).

Respondent's motion was also unaccompanied by an application or any supplemental

documentation demonstrating his eligibility for asylum and withholding of removal, as required
by 8 C.F.R. 1003.23(b)(3). The evidence does not demonstrate a reasonable likelihood that
Respondent will succeed on the merits of such an application, were proceedings to be reopened,
and therefore fails to demonstrate her requisite prima facie eligibility. Matter of S-V-, 22 l&N
Dec. at 1307-08.

Finally, Respondent demonstrates no exceptional circumstances that might warrant the

Court's use of its discretionary power to reopen sua sponte. 8 C.F.R. 1003.23(b)( l ); Matter of
J-J-, 21 l&N Dec. 976, 984 (BIA 1997). Though sympathetic to Respondent's illness, this
 I

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D -G R
Page6 of6

authority is not treated as a general remedy for hardship created by motions regulations, but as an
extraordinary remedy reserved for truly exceptional situations. Matter of G-D-, 22 I&N Dec.
1132 (BIA 1999).

Based on the above and foregoing, the Court enters the following orders:

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ORDER: IT IS HEREBY ORDERED that Respondent's Motion to
Reopen Proceedings be DENIED.

U.S. Immigration Judge

Appeal date: