U.S.

Department of Justice
J.

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5 /07 Leesburg Pike. Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - OMA

1717 Avenue H
Omaha, NE 68110

Name: GRAVE-ORTIZ, MARIA

Riders:206-884-153

A 206-884-152

Date of this notice: 3/29/2016

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

DorutL Ca.;vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
O'Leary, Brian M.
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Maria Grave-Ortiz, A206 884 152 (BIA March 29, 2016)

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Moore, Marisa-Andrea
Law Offices of Marisa-Andrea Moore, Inc.
13066 Van Nuys Blvd
Pacoima, CA 91331

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

Files: A206 884 152 - Omaha, NE

A206 884 153

Date:

MAR 2 9 2015

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENTS: Marisa-Andrea Moore, Esquire
ON BEHALF OF DHS: Anna L. Speas
Assistant Chief Counsel
APPLICATION: Reopening
The respondents, 1 natives and citizens of Guatemala, were ordered removed from the United
States in absentia on July 13, 2015. They appeal the decision of the Immigration Judge, dated
December 7, 2015, denying their motion to reopen, which was filed on October 26, 2015.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. 1003.l(d)(3).
We have considered the totality of the circumstances presented in this case, and find that
exceptional circumstances for the respondents' failure to appear have been shown. See Habchy
v. Gonzales, 471 F.3d 858, 863 (8th Cir. 2006) (describing as "reasonable" the argument that
Lozada should not be applied "mechanistically"); Matter of Lozada, 19 I&N Dec. 637
(BIA 1988). Accordingly, the respondents' appeal will be sustained, the in absentia orders will
be rescinded, the proceedings will be reopened, and the record will be remanded to allow the
respondents another opportunity to appear for their hearing.
ORDER: The appeal is sustained.

The respondents consist of the lead respondent (A206 884 152), and her minor son (A206 884
153).
Cite as: Maria Grave-Ortiz, A206 884 152 (BIA March 29, 2016)

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In re: MARIA ORAVE-ORTIZ

SANTIAGO GRAVE-ORTIZ

........ .....;
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1717 AVENUE H, SUITE 100
OMAHA, NE 68110

IN THE MATTER OF
GRAVE-ORTIZ, SANTIAGO

FILE A 206-884-153

DATE: Dec 9, 2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED

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
5107 Leesburg Pike, Suite 2000
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
1717 AVENUE H, SUITE 100
OMAHA, NE 68110
OTHER:
COURT CLERK
IMMIGRATION COURT
CC: SPEAS, ANNA L., ESQ. - ASST CHIEF COUNSEL, DHS
1717 AVENUE H, SUITE 174
OMAHA, NE, 68110
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Law Offices of Marisa-Andrea Moore, Inc.

Moore, Marisa-Andrea
13066 Van Nuys Blvd
Pacoima, CA 91331

'

J
I

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
OMAHA, NEBRASKA

In the Matters of:

)
)
)
)
)
)

Maria GRAVE ORTIZ and

Santiago GRAVE ORTIZ,
Respondents.

IN REMOVAL
PROCEEDINGS

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA" or

"the Act")-Alien present in the United States without admission or
parole for inspection.

MOTION:

Motion to Reopen and Rescind In Absentia Removal Order

ON BEHALF OF RESPONDENT:
Marisa-Andrea Moore, Esq.
Law Office of Marisa-Andrea Moore
13066 Van Nuys Blvd.
Pacoima, CA 91331

ON BEHALF OF THE GOVERNMENT:

Anna L. Speas, Assistant Chief Counsel
U.S. Department of Homeland Security
U.S. Immigration and Customs Enforcement
1717 Avenue H, Suite 174
Omaha, NE 68110

DECISION OF THE IMMIGRATION JUDGE

I.

Background and Procedural History

Respondents are natives and citizens of Guatemala who arrived at the United States on 12
December 2014 at Hidalgo, TX, and entered without inspection or parole. See ROP 152, Exh. 1.
On 15 December 2014, the Department of Homeland Security ("DHS") personally served
Respondents with a Notice to Appear ("NTA") charging them with inadmissibility pursuant to
the above-captioned section of the Act. Id. On 13 July 2015, when Respondents-both
represented by counsel-failed to appear for their initial Master Calendar hearing, the Court
ordered them removed to Guatemala in absentia. See ROP 152, Decision of the Immigration
Judge ("D'') (Jul. 13, 2015).
On 26 October 2015, Respondents-represented by the same counsel as at the hearing
filed the instant motion to reopen removal proceedings based on lack of notice. See Motion to
Reopen In Absentia [sic] (Oct. 26, 2015) ("Motion to Reopen"). On 4 November 2015, DHS
filed a response opposing reopening. See DHS Response in Opposition to Respondent' s Motion
to Rescind and Reopen In Absentia Removal Order (Nov. 4, 2015) ("DHS Response"). For the
following reasons, the Court will deny Respondents' motion.

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Date: December 7, 2015

File #: A206-884-152
And:A.206-884-153

''-'

II.

Statement of Law

The moving party "bears a heavy burden" to demonstrate why the case should be
reopened. See Hernandez-Moran v. Gonzales, 408 F.3d 496, 499 (8th Cir. 2005). Even if the
moving party has established a prima facie case for relief, an U has discretion to deny a motion
to reopen. 8 C.F.R. 1003.23(b)(3). However, an IJ also has discretion to reopen a respondent's
case sua sponte at any time, unless jurisdiction has vested with the Board of Immigration
Appeals. 8 C.F.R. 1003.23(b)(l). The power to reopen a case sua sponte is invoked
"sparingly" and treated as an "extraordinary remedy reserved for truly exceptional situations."
Matter ofG-D-, 22 I&N Dec. 1132, 1133-34 (BIA 1999).
III.

Analysis and Findings

Respondents rest their motion on two different arguments for lack of notice: (1) that the
presumption of effective service is rebutted by their not-quite-contemporaneous change in
address; and (2) that Respondents' counsel was derelict and failed to advise them of their hearing
date. See Motion to Reopen.
Service of an NTA or hearing notice may be accomplished either personally, or by mail
when personal service is not practicable. See INA 239(a)(l), (2). Service by mail is sufficient
if the government can prove it attempted delivery to the most recent address properly provided
by the respondent. See INA 239(c); 8 C.F.R. 1003.26(d). Notice sent by regular mail that
was properly addressed and mailed according to normal office procedures raises a rebuttable
presumption of effective service. See Matter ofM-R-A-, 24 I&N Dec. 665, 673 (BIA 2008).
Although this presumption of service is weaker than the one raised where notice is sent via
certified mail, a respondent must provide some evidence to show that she did not receive proper
notice. See id. When determining whether notice was properly served via regular mail, an IJ
must consider "all relevant evidence submitted to overcome the weaker presumption of
delivery," including "circumstantial and corroborating evidence." See id. at 673-674.
2

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A respondent who fails to appear for a removal hearing "shall be ordered removed in
absentia if the [government] establishes by clear, unequivocal, and convincing evidence that the
written notice was [properly] provided and that the [respondent] is removable." INA
240(b)(S)(A); see also 8 C.F.R. 1003.26(c). A court may rescind an in absentia removal
order upon a motion to reopen filed within 180 days, if the respondent demonstrates that his
failure to appear was due to "exceptional circumstances." INA 240(b)(5)(C)(i); 8 C.F.R.
1003.23(b)(4)(ii). Exceptional circumstances are those beyond the respondent's control, such
as "battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the
alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less
,,
compelling circumstances. INA 240(e)(l). An in absentia removal order may also be
rescinded upon a motion to reopen if the respondent demonstrates that he did not receive proper
written notice of the time and place of his hearing. See INA 240(b)(5)(C)(ii); 8 C.F.R.
1003.23(b)(4)(ii). In either case, filing a motion to reopen a case with an in absentia removal
order "stay[s] the removal of the [respondent] pending disposition of the motion by the [IJ]." 8
C.F.R. 1003.23(b)(4)(ii).

The Court finds this argument insufficient to overcome the presumption of effective
service because the timing is simply too implausible. As explained by the Board in M-R-A-,
when determining whether a respondent has rebutted the presumption of delivery, an IJ may
consider a variety of factors including, but not limited to:
(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 prim.a 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.
See M-R-A-, 24 l&N Dec. at 674. In this case, Respondents were unrepresented at the time the
notice of hearing was mailed from the Court, so no notice was ever sent to counsel.
Nevertheless, within a few days of mailing the notice, Respondents were represented, their
counsel entered an appearance with the Court and requested a telephonic hearing on the correct
court date. See Motion to Reopen, Tab B, 13; Motion for Telephonic Hearing (Jun. 29, 2015).
The Court is left with the highly improbable scenario in which Respondents retained counsel
within days of the notice of hearing being sent to their prior address during the exact period in
which they were changing addresses, despite not knowing when the hearing would be, and
despite having waited to retain counsel for six months after being served with an NTA. See Exh.
1. Counsel could not have learned of the hearing date from Respondents (if the lack of notice is
true), and was not notified by this Court, but learned of the hearing date nevertheless.
Interestingly, counsel does not explain how she learned of the hearing date so quickly, only that
she "determined" that it was so. See Motion to Reopen, Tab B, ,r 3. There are ways of learning a
respondent's hearing date other than by notice (such as by calling a 1-800 number), but the Court
is not willing to presume a method of notice to counsel that excuses Respondents when their
counsel failed to provide one herself. The burden is not the Court's. The Court therefore holds
that Respondents have failed to overcome the presumption of effective notice sent by regular
mail. See M-R-A-, 24 I&N Dec. at 673.
Respondents' second argument is that counsel's failure to give them notice of their
hearing is an exceptional circumstance worthy of reopening. See Motion to Reopen. The Board
3

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Respondents argue that they were in the process of moving when notice of the hearing
came from the Court. See Motion to Reopen. Notice of the hearing date was sent by the Court
to Respondents at an address on Walnut Street in Grand Island, NE, on 18 June 2015. See Exh. 3.
On 29 June 2015, the Court received a Fonn EOIR-33 change of address indicating Respondents
had a new address on W. 7th Street. See EOIR-33 (Jun. 29, 2015). Respondents argue that
unfortunate timing is "presumably" the cause of their failure to receive notice and thus appear.
See Motion to Reopen.

\.._)

\,-.......

Finally, the Court declines to exercise its sua sponte authority to reopen Respondents'
case for the same reasons outlined above. Nothing in the record indicates an "extraordinary" set
of circumstances. See G-D-, 22 I&N Dec. at 1133-34. Respondents' counsel worries over a
miscarriage ofjustice, but the Court notes counsel apparently has yet to advise her clients of their
obligation to comply with Lozada. See Motion to Reopen (containing no reference to Lozada
requirements). Respondents' motion will be denied.
The following order will be entered:
ORDER OF THE IMMIGRATION JUDGE

IT IS HEREBY ORDERED that Responde t's

Absentia Removal Order is DENIED.

d RescindJn

ERSON
gration Judge
\

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has held that ineffective assistance by failure to give notice can be an exceptional circumstance,
so long as the respondents have complied with the requirements in Matter ofLozada, 19 I&N
Dec. 637 (BIA 1988). See Matter ofGrijalva-Barrera, 21 l&N Dec. 472, 473-74 (BIA 1996)
(finding respondent established ineffective assistance as an exceptional circumstance where he
had complied with Lozada); Habchy v. Gonzales, 471 F.3d 858, 862 (8th Cir. 2006) (aliens are
not excused from compliance with Lozada when alleging ineffective assistance of counsel as an
exceptional circumstance); Mauer ofZmijewska, 24 I&N Dec. 87, 94-95, 95 n.4 (BIA 2007);
Matter ofA-A-, 22 I&N Dec. 140, 146-47 (BIA 1998) (Rosenberg, concurring and dissenting);
Matter ofN-K & V-S-, 21 l&N Dec. 879, 880-81 (BIA 1997). Lozada requires that a respondent
alleging ineffective assistance of counsel must: (1) file an affidavit detailing the agreement
between respondent and counsel and how counsel breached the agreement; (2) counsel must be
informed and given an opportunity to respond to the allegations; and (3) respondent must
indicate that a disciplinary complaint has been filed with the relevant authorities, or if not, why
not. 19 l&N Dec. at 639. Here, Respondents have failed to comply with the requirement to
report counsel to the relevant disciplinary authorities. Counsel for Respondents blames the
incident on an unnamed, now-terminated employee, but this makes no difference. See, e.g.,
Matter ofCantu-Garcia, 2014 WL4407757 (BIA Aug. 11, 2014) (exceptional circumstances by
ineffective assistance through fault of attorney or attorney's paralegal requires compliance with
Lozada) (unpublished). Accordingly, the Court holds that Respondents have failed to establish
exceptional circumstances warranting reopening due to the ineffective assistance of counsel.