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

lgbokwe, Chinedu Banwo Law Office 3622 Leavenworth Street Omaha, NE 681051221

OHS/ICE Office of Chief Counsel 180 Spring Street, Suite 332 Atlanta, GA 30303

ATL

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Name: LARIOSQUIXAN, PEDRO

A077-007158

Date of this notice: 6/28/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Adkins-Blanch, Charles K. Guendelsberger, John Holmes, David B.

Cite as: Pedro Larios-Quixan, A077 007 158 (BIA June 28, 2011)

U.S Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File: A077 007 158 - Atlanta, GA

In re: IN

Date:

JUN JB2on

PEDRO LARIOS-QUIXAN

REMOVAL PROCEEDINGS

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APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Chinedu lgbokwe, Esquire

Nichole S. Lillibridge Assistant Chief Counsel

CHARGE:

212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Reopening

The respondent, a native and citizen of Guatemala, appeals the Immigration Judge's May 5, 2010, order denying his motion to reopen proceedings and to rescind the in absentia order of removal entered on January 4, 2001. The appeal will be sustained, and the record will be remanded to the Immigration Judge for further proceedings. In his decision, the Immigration Judge correctly stated that a motion to reopen for purposes of rescinding an in absentia order may be filed at any time where the alien demonstrates, inter alia, that he did not receive notice ofthe hearing. See section 240(b)(5)(C)(5)(ii) ofthe Act. The Immigration Judge also correctly noted that the respondent provided the Court, in a motion to change venue, his new address: P.O. Box 3118, 312 Bowman Dr., Sumter, South Carolina 29150. The Immigration Judge lastly noted correctly that the United States Court of Appeals has held that notice to the alien at the most recent address provided by the alien to the Court is sufficient notice. See United States v. Dominguez, 284 F.3d 1258 (11th Cir. 2002). While we agree with the above observations, we disagree that notice was sent to the alien at his most recent address. The record indicates that the hearing notice was sent to P .0. Box 3118, 312 Bowman Dr., Sunier, South Carolina 29150. While the Notice of Hearing was not returned as "undeliverable," we do not find that the respondent was properly notified of the hearing, inasmuch as the Notice of Hearing was simply sent to the wrong address. Accordingly, we find that the respondent need not overcome any presumption that the United States Postal Service properly discharged its duties. See generally Kozak v. Gonzales, 502 F.3d 34 (1st Cir. 2007); Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995). The Notice of Hearing was not sent to the respondent's address ofrecord, and the respondent now indicates that he did not receive the Notice of Hearing. Under these circumstances, we find that the respondent's record should be reopened for proper service of the Notice of Hearing.
Cite as: Pedro Larios-Quixan, A077 007 158 (BIA June 28, 2011)

A077 007 158 As such, we will sustain the appeal, rescind the in absentia order, reopen the proceedings, and remand the record to the Immigration Judge for further proceedings. ORDER: The appeal is sustained. FURTHER ORDER: The January 4, 2001, in absentia order is rescinded, and the proceedings are reopened. FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings.

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FOR THE BOARD

Cite as: Pedro Larios-Quixan, A077 007 158 (BIA June 28, 2011)

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT 180 SPRING ST., ATLANTA, SW, SUITE 241 GA 30303

IGBOKWE, OMAHA, NE

CHINEDU 68105

3622 LEAVENWORTH STREET

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IN THE MATTER OF LARIOS-QUIXA.N, PEDRO

FILE A 077-007-158

DATE:

May 5,

2010

UNABLE TO FORWARD

NO ADDRESS PROVIDED THIS DECISION

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE.

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, MUST BE MAILED TO: ATTACHED DOCUMENTS, OFFICE OF THE CLERK P.'O. BOX 8530 VA 22041 FALLS CHURCH, AND FEE OR FEE WAIVER REQUEST BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR A'f. YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. <1 THIS DECISION IS FINAL UNLES A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c)(3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SECTION 1252B(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6), 8 U.S.C. SECTION 1229a(c)(6) IN REMOVAL PROCEEDINGS. TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT: IMMIGRATION COURT IF YOU FILE A MOTION

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SUITE 241

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW United States Immigration Court
180 Spring Street SW, Suite 241

Atlanta, Georgia 30303 IN THE MATTER OF:

Pedro Larios- Quixan Respondent

) ) ) ) )

In Removal Proceedings File No.

A077 007 158

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CHARGE:

Section 2J2(a)(6)(A)(i)ofthe 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. Motion to Reopen/Motion to Stay/Motion for Change of Venue

APPLICATION:

APPEARANCES

FOR THE RESPONDENT:

FOR THE DHS:

Chinedu lgbokwe, Esq. 3622 Leavenworth Street Omaha, NE 68105

Assistant Chief Counsel 180 Spring Street SW 332 Room Atlanta, Georgia 30303
WRITTE DECISION AND ORDER

Respondent is a native and citizen of Guatemala, who entered the United States at or near Eagle Pass, Texas on or about February 26, 2000. At e time ofentry, Respondent was not admitted or paroled after inspection. On March 3, 2000, the Immigration and Naturalization Service [DHS]1 issued a Notice to Appear (NTA) charging the Respondents with removeability, as an alien presntt in the United States without 10n March 1, 2003, the Immigration and Naturalization Service became part of the Department of Homeland Security. Homeland Security Act of 2002, Pub. L. No. 107 -296, Title IV, 116 Stat. 2135 (Nov. 25, 2002), as amended.

being admitted or parol;ed or who arrived in the United States at any time or place other than as designated by the Attorney General a vfciliation under Section 2 l 2(a)(6)(A)(i) ofthe Immigration and Nationality Act (Act). The Respondent was served with the Notice to Appear( NTA) in person. On March 20, 2000, DHS filed the NTA with the Immigration Court in El Paso, Texas. On March 28, 2000, Respondent, through Marlene Perrotte, an accredited representative from Las Americas Refugee Asylum Project, admitted the factual allegations contained in the NTA and conceded removeability. On April 24, 2000, Respondent's counsel filed a changed of venue motion requesting the matter be transferred to the Atlanta Court claiming the Respondent's new address was at P. 0 .Box 3118/312 Bowman Drive, Sunter, SC 29150.
.

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On May 10, 2000, IJ Smith granted the change venue request. On May 26, 2000, the Atlanta Court sent the Respondent a notice ofhearing by regular mail, to the address provided, setting the matter for a Master Hearing on January 4, 2001 at 9:00 A.M.. It was not returned and thus deemed delivered.
I'

On January 4, 2001, the Respondent States in absentia to Guatemala.

railed to appear and was ordered removed from the United

On April 13, 2010, the Respondent, through counsel, filed a Motion to Reopen in which counsel claims Respondent had not received notice ofthe hearing. DHS opposed this motion.

DISCUSSION

A motion to reopen for purposes ofrescinding an in absentia removal order may be filed at any time where the alien demonstrates either that he did not receive notice ofthe hearing, or he can show that he was in Federal or State custody and the failure to appear was through no fault ofhis own. See INA 240(b)(5)(C)(ii); 8 C.F.R. 1003.23(b)(4)(ii) (2003). Alternatively, motions to reopen may be granted where the motion is filed within 180 days after the date ofthe order of removal, and the alien can show that his failure to appear was due to "exceptional circumstances." See 8 C.F.R. 1003.23(B)(4)(ii)(2003); INA 240(b)(5)(C)(i). This Court must follow the decisions of the Eleventh Circuit, which held that notice;to the alien at the most recent address provided by the alien to the Court is sufficient notice. UnitH States v. Dominguez, 284 F.3d 1258 (11th Cir. 2002). Moreover, when an alien is chargeable with having received notice ofthe proceedings, the address used by the DHS on the charging document qualifies as a proper address, and notice given to that address is deemed sufficient for purposes of in absentia hearings if the alien has not notified the 2

Court of a change of address. INA 240(b)(5){A); Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2000). After reviewing the evidence, the Court finds that Respondent is clearly chargeable with having received notice of their proceedings and hearings in accordance with Dominguez. The Respondent was mailed to the address provided in the motion to change venue filed by his counsel. Moreover, the NTA was provided to the Responde.ni in person. The notice of hearing was not returned and thus deemed delivered.
t':

Where a Notice to Appear is personally served and a notice of hearing are properly addressed and sent by regular mail according to normal office procedures, there is a presumption of delivery. Matter ofM-R-A-, 24, I&N Dec. 665 (BIA 2008). The Respondent, however, has not submitted any evidence to overcome this legally recognized presumption. A mere claim of non receipt is clearly insufficient to overcome this presumption. The l l 1h Circuit has held in Dominguez, that DHS need only show that service was attempted at a place or address reasonably expected to provide service. The address provided by the Respondent clearly meets that requirement. The motion does not contain an affidavit from the Respondent. See 8 C.F.R.

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1003.2(C)(1);1003.23{B)(3).

Statements from counsel are not evidence. The final order in these

The motion to reopen has been filed out of time and will be denied. filed 180 days of the entry of an in absentia order of removal. until April 13, 20 I 0 over 9 years too late.

proceedings was entered on January 4, 2001. With certain exceptions, a motion to reopen must be The motion to reopen wasn't filed

Respondent did not therefore, use or eK.ercise due diligence with regard to this matter and did not keep the Court or DHS aware of chan es of address as required.

Respondent does not or should

not have the option to notifying DHS of his whereabouts at will or only when a perceived benefit may become available. Despite being aware that he was in removal proceedings, Respondent took no action or followup whatsoever until this recent motion. The Respondent appears to have moved and, despite the requirements of notification, has failed to keep DHS informed of his whereabouts. The Court will also deny this motion as a matter of discretion under 8 C.F.R. 1003.23(b)(iv) due to the Respondent's clear attempt to evade the enforcement of the United States immigration laws and his failure to comply with the law and regulations to notify the DHS and Court of any change of address until he believed he became eligible for a viable relief. See generally Fernandez-Vargas v. Gonzalez United States, Supreme Court, No. 04-1376 Decided June 22, 2006.

Accordingly, the Court enters the following orders:

ORDER

It is Ordered that:

Respondent's motion to Reopen/Stay/Change ofvenue be denied. oved from the United States to Court's Order ofJan ary 2001.

It is further Ordered that:

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William A. Cassidy United States Immigration Judge