U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, S11ile 2000
Falls Church, Virginia 220./J

OHS/ICE Office of Chief Counsel - LOS

606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name: BAINTON, DEBORAH ELOISE

A 070-966-647

Date of this notice: 1/7/2016

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

DCnrtL C

t1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Cole, Patricia A.
O'Herron, Margaret M

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Deborah Eloise Bainton, A070 966 647 (BIA Jan. 7, 2016)

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Alfaro, Esmeralda Arias

Alfaro & Associates
611 S. Olive Street
Los Angeles, CA 90014

U.S. Department of Justice

Decision of the Board oflmmigration Appeals

Executive Office for ImmigratiorReview

Falls Church, Virginia 22041

File: A070 966 647 - Los Angeles, CA

Date:

In re: DEBORAH ELOISE BAINTON

JA.N - 7 2016

APPEAL
ON BEHALF OF RESPONDENT: Esmeralda Arias Alfaro, Esquire
CHARGE:
Order:

Sec.

24l(a)(l)(B), l&N Act [8 U.S.C. 1251(a)(l)(B)] In the United States in violation of law

APPLICATION: Reopening
The respondent, a native and citizen of Belize, appeals from the Immigration Judge's May 5,
2014, decision denying her motion to reopen deportation proceedings in which she was ordered
deported in absentia on August 17, 1995. The appeal will be sustained and the record will be
remanded for further proceedings consistent with this decision.
We review an Immigration Judge's findings of fact, including findings regarding witness
credibility and what is likely to happen to the respondent, under a "clearly erroneous" standard.
8 C.F.R. 1003.l(d)(3)(i); Matter of Z-Z-0-, 26 l&N Dec. 586 (BIA 2015). We review all other
issues, including questions of law, discretion, and judgment, under a de novo standard. 8 C.F.R.
1003.l(d)(3)(ii).
An order issued following proceedings conducted in absentia pursuant to former section
242B(c) of the Immigration and Nationality Act, 8 U.S.C. 1252b(c), may be rescinded only
upon a motion to reopen whi9h demonstrates that the alien failed to appear because of
exceptional circumstances, because he did not receive proper notice of the hearing, or because he
was in Federal or State custody and failed to appear through no fault of his own.
In this case the respondent was ordered deported in absentia in 1995. In 2014, she filed a
motion to reopen these proceedings pursuant to section 2428(c) of the Act based on her assertion
that she failed to appear for the hearing because she did not receive proper notice of the hearing.
The respondent claimed that she did not receive either the Order to Show Cause (OSC) or the
notice of hearing. The Immigration Judge denied the respondent's motion to reopen.
We agree with the Immigration Judge insofar as she determined that the respondent was not
properly served with the OSC (I.J. at 2). See Matter of Grijalva, 21 I&N Dec. 27, 32 (BIA 1995)
(holding that proper service of an OSC (Form 1-221) occurs when it is sent by certified mail and
is signed by the alien, alien's counsel, or a responsible person at the alien's address). See also
Chaidez v. Gonzales, 486 F.3d 1079, 1085 (9th Cir.2007) ("For OSCs, service was proper only if
the INS established that the return receipt was signed by the alien or a responsible person at the
Cite as: Deborah Eloise Bainton, A070 966 647 (BIA Jan. 7, 2016)

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IN DEPORTATION PROCEEDINGS

A070 966 647

alien's address."). In this case, according to the certificate of service, an OSC dated January 24,
1995, was mailed to the respondent by certified mail (Exh. 1). However, the record does not
contain certified mail receipts, receipt numbers, or signed return receipt cards. See Order to
Show Cause, Certificate of Service (Exh. 1).

Pursuant to former section 242(b) of the Act, an Immigration Judge may conduct an in
absentia hearing:
[i]f any alien has been given a reasonable opportunity to be present at a proceeding
under this section, and without reasonable cause fails or refuses to attend or remain in
attendance at such proceeding.
The respondent was not "given a reasonable opportunity to be present at a proceeding" because
she never received the OSC which contains the charges of inadmissibility, and her rights and
responsibilities, including clear warnings of the consequences of failing to appear at a
deportation proceeding. See Matter ofHuete, supra.
Under the Ninth Circuit's case law, in which this case arises, we also reverse the Immigration
Judge's decision insofar as she determined that the respondent failed to exercise due diligence in
filing the motion. The plain language of section 242B(c)(3)(B) of the Act provides that a motion
based on either lack of notice or on the respondent's custody status at the time of the hearing may
be filed "at any time." See Andia v. Ashcroft, 359 F.3d 1181 (9th Cir. 2004) (holding that motion
to reopen an in absentia hearing based on lack of notice can be made at any time and may not be
denied for lack of due diligence). Based on the foregoing, we will sustain the appeal and remand
the record for further proceedings consistent with this decision.
ORDER: The appeal is sustained.
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.
=<

LicwJL

2
Cite as: Deborah Eloise Bainton, A070 966 647 (BIA Jan. 7, 2016)

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Nevertheless, the Immigration Judge concluded that the respondent was properly served with
the notice of the August 17, 1995 hearing because the record contained a returned receipt card
which the Immigration Judge determined was signed by the respondent (I.J. at 2-3). We reverse
the Immigration Judge's determination. Without proper service of the OSC, an alien cannot be
charged with receiving the notice of hearing. See Matter of Huete, 20 I&N Dec. 250, 253 (BIA
1991) (holding that the respondent did not have a reasonable opportunity to be present where he
was not properly served with the OSC).

....__.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
606 SOUTH OLIVE ST., 15TH FL.
LOS ANGELES, CA 90014

IN THE MATTER OF:

FILE A 070-966-647

DATE: 5/6/14

BAINTON, DEBORAH ELOISE

Unable to forward - No address provided
X

Attached is a copy of the decision of the Immigration Judge. This decision is final
unless an appeal is filed with the Board of Immigration Appeals within 30 calendar days of
the date of the mailing of this written decision. See the enclosed forms and instructions for
properly preparing your appeal. Your notice of appeal, attached documents, and fee or
fee waiver request must be mailed to:
Board of Immigration Appeals
Office of the clerk
P. 0. Box 8530
Falls Church, VA 22041
Attached is a copy of the decision of the Immigration Judge as the result of your
failure to appear at your scheduled deportation or removal hearing. This decision is final
unless 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. If you file a motion to
reopen, your motion must be filed with this court;
Immigration Court
606 S. Olive Street, 15th Floor
Los Angeles, CA 90014

Other: PLEASE SEE ATTACHED IJ DECISION. THANK YOU.

cc:
Assistant District Counsel

ERICA MARTINEZ
Immigration Court Clerk

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ESMERALDA ALFARO, ESQ.

611 S. OLIVE ST.,
LOS ANGELES, CA 90014

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
A 070 966 647

In the Matter of:

IN DEPORTATION PROCEEDINGS

BAINTON,
Deborah Eloise,
Respondent
CHARGE:

Section 24l(a)(l){B) of the Immigration and Nationality Act (INA) (1995)

- entered the United States without inspection

APPLICATIONS:

Motion to Reopen; Motion for a Stay of Deportation

ON BEHALF OF THE GOVERNMENT:
Assistant Chief Counsel
U.S. Department of Homeland Security
606 South Olive Street, Eighth Floor
Los Angeles, California 90014

ON BEHALF OF RESPONDENT:
Esmeralda Alfaro, Esquire
611 South Olive Street
Los Angeles, California 90014

DECISION AND ORDERS OF THE IMMIGRATION JUDGE

I.

Procedural History

Deborah Eloise Bainton (Respondent) is a native and citizen of Belize. On January 24,
1995, the Government served Respondent by certified mail with a Form 1-221, Order to Show
Cause (OSC). Ex. 1. In the OSC, the Government alleged that Respondent entered the United
States at or near San Ysidro, California, on or about February 1, 1990, and was not then
inspected by an immigration officer. Id. Based on these allegations, the Government charged
Respondent as deportable pursuant to former section 241(a)(l)(B) of the INA. Id. Jurisdiction
vested and deportation proceedings commenced when the Government filed the OSC with this
Court on March 23, 1995. 8 C.F.R. 3.14(a) (l995).
On August 17, 1995, Respondent failed to appear for her scheduled hearing and the Court
proceeded in absentia. Based on a Form 1-213, Record of Deportable Alien, the Court found that
the Government had established Respondent's removability by clear, convincing, and
unequivocal evidence. See Ex. 3. Accordingly, the Court ordered Respondent removed to
Belize.

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File No.:

--
On April 9, 2014, Respondent filed the pending motion to reopen. Therein, Respondent
alleged that she never received the charging document or notice of her hearing on August 17,
1995.
For the following reasons, the Court denies Respondent's motion to reopen.
Law and Analysis

The Court may rescind an in absentia deportation order upon a motion filed at any time if
the respondent demonstrates that she did not receive proper notice of her hearing. 8 C.F.R.
1003.23(b)(4)(iii)(A)(2) (2014). Service of the OSC is proper if given in person to the
respondent or, if personal service is not practicable, sent by certified mail to the respondent or
the counsel of record. INA 242B(a)(l) (1995). 1 If the OSC was sent by certified mail, the
certified mail return receipt must have been signed by the respondent or a responsible person at
the respondent's address. Chaidez v. Gonzales, 486 F.3d 1079, 1085 (9th Cir. 2007); Matter of
Grijalv 21 I&N Dec. 27, 32 (BIA 1995). Once the OSC has been served, service of the Notice
of Hearing (NOH) is legally sufficient if sent by certified mail to the respondent's last known
address. INA 242B(c)(l) (1995); Grijalva, 21 I&N Dec. at 33. Proof of actual service or
receipt of the notice by the respondent is not required to effect service. Grijalv 21 l&N Dec. at
33; Arrieta v. INS, 117 F.3d 429, 431 (9th Cir. 1997).
If the written notice is sent by certified mail, and there is proof of attempted delivery and
notification of certified mail, then there exists a rebuttable presumption of proper delivery.
Grijalva, 21 l&N Dec. at 37. To overcome this presumption, the respondent must present
"substantial and probative evidence[,] such as documentary evidence from the Postal Service,
third party affidavits, or other similar evidence[,] demonstrating that there was improper delivery
or that nondelivery was not due to the respondent's failure to provide an address where he could
receive mail." Id. The presumption may be overcome where the mailing address remained
unchanged when the notice was sent, where no one refused service of mail, and where there was
non-delivery or improper delivery of mail. Arrieta, 117 F.3d at 432. For service of a hearing
notice, the Court presumes that public officers, including Postal Service employees, properly
discharge their duties. Grijalva, 21 I&N Dec. at 37. Therefore, the Court may only reopen
proceedings for lack of notice if the respondent presents substantive and probative evidence of
improper delivery. Id.
The Court finds that although the record does not show that Respondent, or a responsible
person at Respondent's address, signed the certified mail return receipt for the OSC, there is
sufficient evidence to demonstrate that Respondent was properly served with the NOH.
Although Respondent asserts that she never received proper notice of her August 17, 1995
hearing, the record clearly reflects that she did have notice that she was in deportation
proceedings and required to appear before the Court on August 17, 1995. The NOH was sent by
1 Fonner section 242B of the Act applies to cases in which service of the hearing notice occurs after June 13, 1992,
but prior to April 1, 1997. See Matter of Cruz-Garcia, 22 I&N Dec. 1155, 1156 n.l (BIA 1999). Here, both the
OSC and a hearing notice were sent to Respondent via certified mail in 1995. See Exs. 1, 2. As such, former
section 242B of the Act applies to Respondent's motion.

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II.

'

certified mail and Respondent's own signature appears on the return receipt sent to the Court.
See Ex. 2. Therefore, the Court finds by clear, unequivocal, and convincing evidence, that
Respondent received proper notice of her scheduled hearing. See Grijalva, 21 I&N Dec. at 36.

In addition, Respondent has not acted with due diligence in filing the pending motion.
Respondent received the NOH by certified mail in 1995, and was therefore on notice that she
was in deportation proceedings. However, Respondent waited over eighteen years to inquire
about the status of her proceedings. As such, Respondent has not diligently pursued her claim
and her motion is untimely.
The Court also notes that the relief sought by Respondent was acquired after the Court's
final order of deportation. Respondent claims that she is eligible for adjustment of status based
upon the visa petition of her U.S. citizen sister. The Supreme Court has held that when a
respondent moves to reopen his or her proceedings based upon relief that has become available
only after a final order of deportation, it may properly be denied. See INS v. Rios-Pineda, 471
U.S. 444, 450-51 (1985) (finding that equities which are obtained after the entry of a final
deportation order do not create substantial equities).
Based on the foregoing, Respondent's motion to reopen is denied. Because the Court
will deny Respondent's motion to reopen, it finds no basis on which to grant her motion for a
stay of deportation. Accordingly, the following orders shall be entered:
ORDERS
IT IS HEREBY ORDERED that Respondent's motion to reopen be DENIED.
IT IS FURTHER ORDERED that Respondent's motion for stay of deportation be

DENIED.

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Additionally, Respondent's other claims are directly contradicted by the evidence in the
record. First, Respondent claims that she learned of her deportation order on September 18,
2013, when her adjustment of status application was denied. See Resp't Deel. at 2. However, a
review of the record shows that Respondent requested copies of her Record of Proceedings from
the Immigration Court on September 21, 2011. Therefore, Respondent knew of her deportation
order in 2011. Second, Respondent claims that she did not receive the NOH. See id. However,
the return receipt sent to the Court contains her signature as evidence of her receipt of the
document. These discrepancies cast doubt on Respondent's assertion that she did not receive
notice of her August 17, 1995 hearing.

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