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 22041

Yang, Donglai OHS/ICE Office of Chief Counsel - NOL

law offices of Donglai Yang, LLC 1250 Poydras Street, Suite 2100
365 Canal Street, New Orleans, LA 70113
Suite 1670
new orleans, LA 70130

Name: MEJIA-FLORES, MICHAELL SAL •.. A 206-548-763

Date of this notice: 2/15/2018

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Guendelsberger, John
Kendall Clark, Molly
Grant, Edward R.

Userteam: Docket

Cite as: Michaell Salomon Mejia-Flores, A206 548 763 (BIA Feb. 15, 2018)
 '
..
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A206 548 763 - New Orleans, LA Date:

FEB 15 281
In re: Michaeli Salomon MEilA-FLORES

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Donglai Yang, Esquire

ON BEHALF OF OHS: Krystal D. Norton

Assistant Chief Counsel

APPLICATION: Reopening

On December 19, 2016, the Immigration Judge ordered the respondent removed in absentia
after the respondent did not appear for his hearing. On July 12, 2017, the respondent filed a motion
to reopen and rescind the in absentia order, and the Immigration Judge denied the motion. The
respondent has now appealed from the Immigration Judge's decision. The Department of
Homeland Security opposes the appeal. The appeal will be sustained and the record will be
remanded.

The respondent claimed in his motion to reopen and in a notarized affidavit that he did not
receive notice of his December 19, 2016, hearing and that he did not know he had been ordered
removed in absentia until he consulted with an attorney.

The record before us establishes that the notice for the respondent's December 19, 2016,
hearing was not sent to the specific address provided by the respondent when he completed his last
change of address form in 2013 (Exh. 4).1 The respondent's address included an "in care of' for
Augusto Jonax Mejia-Sabillon." The hearing notice failed to include that portion of the address.
The Immigration Judge's decision denying reopening concluded that the hearing notice was mailed
to the respondent's last known address. The decision does not mention that the address was
incomplete. Accordingly, the Immigration Judge's reliance on Matter of M-R-A-, 24 l&N Dec.
665 (BIA 2008) in denying reopening was misplaced. See Matter ofM-R-A-, 24 l&N Dec. at 673
(providing that when a hearing notice is properly addressed and sent by regular mail, there is a
presumption of delivery, but the presumption is weaker than the presumption that applies to
documents sent by certified mail).

The incomplete address on the hearing notice significantly reduces any presumption of
delivery. Given the incomplete address and the respondent's notarized affidavit stating that he did
not receive the notice, we conclude that a remand is warranted.

1 The respondent's hearing notice was mailed by regular mail approximately 3 and 1/2 weeks
before the hearing date. The hearing notice rescheduled the respondent's hearing from October 4,
2019, to December 19, 2016.

Cite as: Michaell Salomon Mejia-Flores, A206 548 763 (BIA Feb. 15, 2018)
A206 548 763

ORDER: The respondent's appeal is sustained.

FURTHER ORDER: Proceedings are reopened and the respondent's in absentia order of
removal is rescinded.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

Cite as: Michaell Salomon Mejia-Flores,

2 A206 548 763 (BIA Feb. 15, 2018)
 )

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
NEW ORLEANS, LOUISIANA

)
IN THE MATTER OF ) IN REMOVAL PROCEEDINGS
)
MEnA-FLORES, Michaell ) File: A206-548-763
)
Respondent )

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

APPLICATION: Motion to Reopen In Absentia Order of Removal

ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

Donglai Yang Krystal Norton
Law Offices of Donglai Yang, LLC Department of Homeland Security
365 Canal St, Suite 1670 U.S. Immigration & Customs Enforcement
New Orleans, LA 70130 1250 Poydras St., Suite 2100
New Orleans, LA 70113

DECISION OF THE IMMIGRATION JUDGE

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

proceedings after the Department ofHomeland Security ("OHS") issued a Notice to Appear (NTA)
charging him pursuant to section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA) on
May 22, 2013.

Respondent's has a Master Calendar Hearing was set before the New Orleans Immigration
Court on December 19, 2016. The Respondent failed to appear and removability was established
by clear and convincing evidence. See 8 C.F.R:. § 1240.S(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 July 12, 2017, Respondent filed a Motion to Reopen the in absentia order of removal.
The issue now before the Court is the merits of Respondent's Motions to Reopen.

I. Statement of Law

An Immigration Judge may upon his or her own motion at any time, or up9n motion of OHS
or the Respondent, reopen or reconsider any case in which he or she has made a decision, unless
jurisdiction is vested with the Board oflmmigration Appeals. 8 C.F.R. .§ 1003.23(b)(l).
A206-548-763 '

MEJIA-FLORES, Michaeli
Page 2 of4

INA §240(b)(5)(A) provides that a Respondent who fails to attend a proceeding shall be
ordered removed in absentia if OHS 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 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).

No written notice of a change in time or place of proceedings shall be required if a the

Respondent failed to provide the address required under INA §239(a)(l)(F). 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).

In the case of either the initial Notice to Appear 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 Notice to
Appear must specifically inform a respondent of the affirmative duty to update his address with
the OHS in writing and to notify the Immigration Court immediately whenever his address or
telephone nwnber 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
nwnber 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
docwnent 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 Notice to Appear or Notice of Hearing by
regular mail. Matter ofM-R-A, 24 l&N Dec. 665, 674, 669-670 (BIA 2008).

A Notice of Hearing 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."
Some presumption of receipt to a Notice to Appear or Notice of Hearing sent by regular mail when
the notice was properly addressed and mailed according to normal office procedures. This
preswnption, 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.
A206-548-763 '

MEJIA-FLORES, Michaell
Page 3 of4

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 Notice to Appear or Notice of Hearing 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 circumstances or evidence
indicating possible non-receipt of notice. Matter of M-R-A, 24 I&N Dec. 665, 674 (BIA 2008).
Where the correspondence is sent by regular mail, and where there is no other evidence that the
petitioner was attempting to avoid the proceedings, the petitioner's statement that he or she did not
receive the correspondence is sufficient evidence that mail delivery failed. Torres Hernandez v.
Lynch; 825 F.3d 266 (5th Cir. 2016). The Immigration Judge however shall weigh the credibility
of an affidavit in determining whether the alien has rebutted the presumption of notice. Id.

II. Respondent's Position

The Respondent claims he did not receive notice of his last hearing or his order of removal
and that it was not until he spoke to his attorney that he became aware of the order of removal.

III. DHS' Position

OHS opposes the motion to reopen arguing the Respondent has failed to demonstrate a lack
of notice.

IV. Analysis and Conclusions

The Respondent appeared in court in New Orleans on April 14, 2014. At that time, the
case was reset in order to provide time for the Respondent to find an attorney. The Respondent
was personally served a notice of hearing advising the Respondent to return to court on October
14, 2014. On September 22, 2014, the case was rescheduled until February 1, 2016. A notice of
hearing was mailed to the Respondent. On January 21, 2016, the case was again reset to October
4, 2019 and a notice was mailed to the Respondent. Finally, on November 22, 2016, the case was
reset to December 16, 2016 with notice being mailed to the Respondent. There is no evidence in
the record that any of those mailed notices were returned to the Court. However, the order of
removal that was mailed to the Respondent on December 20, 2016 was returned to the Court. There
is a handwritten note on the envelope that says "moved." The Respondent's application for asylum
submitted with the motion to reopen lists a new address from the Respondent as of December
2016. No Form EOIR-33 was filed with the immigration court.
'•

,A206-548-763'
MEJIA-FLORES, Michaeli
Page 4 of4

The Respondent has not provided the exact date on which he moved

The Court concludes the Respondent has failed to demonstrate a lack of notice. If the
Respondent moved prior to the last notice of hearing being mailed to him, he was required to
update the Court of that address. If he was still at his previous address then notice was mailed there
and not returned. Once he moved the order of removal was returned noting he had moved. Thus,
if the Respondent had not moved, the Court does not find credible the Respondent's claim he did
not receive notice of the hearing.

Counsel for the Respondent has noted that the Respondent was a minor when he entered
the United States in 2013. While that is true, the Respondent turned eighteen in 2014 and therefore
was not a minor at his first hearing. He was twenty at the time his hearing in December 2016 was
scheduled. The Court therefore does not find the Respondent's age as a sufficient reason to excuse
his failure to appear or his failure to update his address with the Court. The Court does not find
this is the type of case that warrants sua sponte reopening. Based on the above and foregoing, the
Court enters the following orders:
·

ORDER: IT IS HEREBY ORDERED that Respondent's Motion to

Reopen the in absentia order of removal be DENIED.

July 26, 2017

�----
Date Joseph La Rocca
Immigration Judge

Appeal date: August 25, 2016

NOTICE OF THE RIGHT TO APPEAL: You are hereby notified that both parties have the right to appeal the Immigration
Judge's decision in this case to the BIA. 8 C.F. R. § l00 3.38(a). A Notice of Appeal (Fonn EOIR-26) must be submitted
to the BIA within 30 calendar days from the issuance or mailing of this decision. 8 C.F.R. § l003 .38(b). If the final
date for filing falls on a Saturday, Sunday, or legal holiday, the filing date is extended to the next business day. Id If
no appeal has been taken within the time allotted to appeal, the Immigration Judge's decision becomes final. Id By
failing to timely file an appeal, a party irrevocably relinquishes the opportunity to obtain review of the Immigration
Judge's decision and challenge the ruling.

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