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

DHS/ICE Office of Chief Counsel - SEA

1000 Second Avenue, Suite 2900
Seattle, WA 98104

Name: CARRILLO-PABLO, JOSEFA

Riders:

A 202-097-908

Date of this notice: 6/2/2016

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

DOrt.ltL

ca.AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Wendtland l Linda S.
Pauley, Roger
O'Herron, Margaret M

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Josefa Carrillo-Pablo, A202 097 908 (BIA June 2, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Jagannath, Gautam J.
Social Justice Collaborative
420 3rd Street, Suite 130
Oakland, CA 94607

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Eocutive Office for Immigration Review
Falls Church, Virginia 22041

Date:

Files: A202 097 908 - Seattle, WA

_JUNO 2 2016

In re: JOSEFA CARRILLO-PABLO

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENTS: Gautam J. Jagannath, Esquire
APPLICATION: Reopening
We have considered the totality of the circumstances presented in this case, and find that the
evidence is sufficient to establish that the respondent did not receive proper notice of the hearing
below, and that reopening and rescission of the in absentia removal order is therefore
warranted.

See section 239(a)(2) of the Immigration and Nationality Act, 8 U.S.C.

1229(a)(2); see also Matter of M-R-A-, 24 l&N Dec. 665 (BIA 2008). Accordingly, the
respondent's appeal will be sustained, the in absentia order will be rescinded, the proceedings
will be reopened, and the record will be remanded to allow the respondent another opportunity to
appear for her hearing.
ORDER: The appeal is sustained.
FURTHER ORDER: These proceedings are reopened, the in absentia order of removal is

mJ/\tf;J

vacated, and the record is remanded to the Immigration Court for further proceedings.
\I

"

FOR THEBO

Board Member Roger A. Pauley dissents without separate opinion.

The respondents are an adult mother (A202 097 908) and her minor child
All references in this decision to "the respondent" relate to the adult respondent.

Cite as: Josefa Carrillo-Pablo, A202 097 908 (BIA June 2, 2016)

).

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\.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1000 SECOND AVE., SUITE 2500
SEATTLE, WA 98104

LEAD FILE: 202-097-90

RE: 202-097-908 CARRILLO-PABLO, JOSEFA
202-097-909 CALMO-CARRILLO, MELINDA MARIBEL

DATE: Oct 16, 2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED

TTACHED 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
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
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 SCHEDUtED 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
1000 SECOND AVE., SUITE 2500
SEATTLE, WA 98104 -----OTHER:

CC: ERIC BAKKEN, ICE ASST. CHIEF COUNSEL

1000 SECOND AVE, STE 2900
SEATTLE, WA, 98104

FF

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CARRILLO-PABLO, JOSEFA
2133 34TH AVENUE
OAKLAND, CA 94601

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1000 SECOND AVE., SUITE 2500
SEATTLE, WA 98104

LEAD FILE: 202-097-908

RE: 202-097-908 CARRILLO-PABLO, JOSEFA
202-097-909 CALMO-CARRILLO, MELINDA MARIBEL

DATE: Oct 16, 2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED

TTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
S 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
1000 SECOND AVE., SUITE 2500
"SEATTLE, WA 9........_
OTHER:

t,h;.

CC: ERIC BAKKEN, ICE ASST. CHIEF COUNSEL

1000 SECOND AVE, STE 2900
SEATTLE, WA, 98104

COURT

FF

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Social Justice Collaborative

Jagannath, Gautam J.
420 3rd Street, Suite 130
Oakland, CA 94607

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SEATTLE, WASHINGTON

Josefa CARRILLO PABLO,

Melinda Maribel CALMO CARRILLO,
Respondents.

File Numbers:

A202-097-908
A202-097-909

IN REMOVAL PROCEEDINGS

CHARGE:

INA 2I2(a)(7)(A)(i)(l)-Alien Not in Possession of Valid Entry

Document (for both of the respondents)

APPLICATION:

Motion to Reopen

ON BEHALF OF RESPONDENTS
Guatam Jagannath, Esquire
Social Justice Collaborative
420 Third Street, Suite 13 0
Oakland, CA 94607

ON BEHALF OF DHS
Erik Bakken, Senior Attorney
Department of Homeland Security-ICE
I000 Second Avenue, Suite 2900
Seattle, WA 98104

DECISION OF THE IMMIGRATION JUDGE

The Court hereby incorporates its decision dated April 8, 2015. The respondents, through
counsel, appealed that decision, and the Board affirmed the Court's finding that the respondents
did not establish that reopening was warranted on the basis of exceptional circumstances. Board
Decision at 2 (Sept. 21, 2015). The Board remanded for additional consideration of whether the
respondents established that they received proper notice. Id Specifically, two members of the
Board acknowledged that the Court "correctly applied the presumption [set forth in Matter ofM
R-A-] that the properly addressed notice sent via regular mail was received by the respondent."
Id (citing Matter of M-R-A-, 24 I&N Dec. 665, 671-72 (BIA 2008)). Nevertheless, the case was
remanded for the Court to explicitly discuss the Matter ofM-R-A- factors in greater detail. Id at
3.
As discussed in the previous decision, when examining "all relevant evidence submitted
to overcome the weaker presumption of delivery" by regular mail, the Court "may consider a
variety of factors including, but not limited to, the following:" (1) the alien's affidavit; (2)
affidavits from others who are knowledgeable about "facts relevant to whether notice was

Immigrant & Refugee Appellate Center, LLC | www.irac.net

In the Matters of:

Here, with regards to the first factor, the lead respondent's affidavit states that she never
received a notice in the mail and that the notario with whom she dealt did not tell her that she had
to go to court. MTR, Section A, at 1. However, there is no record of a notice being returned to
the Court as undeliverable. Beyond saying she never received a notice, the lead respondent's
affidavit focuses on the fact that the notario told her she did not need to go to Court rather than
not receiving notice. Id With regards to the second factor, the respondent's attorney submitted
an affidavit, but this focused on his conversation with the notario rather than the alleged lack of
notice. MTR, Section B, at 1. Like the lead respondent, the attorney stated that the notario did
not let the respondents know that they needed to go to Court. Id. Third, the respondents filed
their motion nearly three months after the removal order. It is unclear when they learned of the
order, as the declaration simply states that they had received a notice that they should report for
removal on February 18, 2015. MTR, Section A, at 2. Lastly, there were no prior affirmative
applications for relief indicating an incentive to appear. See M-R-A-, 24 I&N Dec. at 674. In light
of this case's particular circumstances, the Court denies the respondents' motion to reopen. See
id
ORDER
IT IS HEREBY ORDERED that the respondents' motion to reopen is DENIED.

Immigration Judge

A202-097-908
A202-097-909

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received"; (3) whether the alien exercised due diligence upon learning of the in absentia order;
and (4) "any prior affirmative application for relief, indicating that the [alien] had an incentive to
appear." M-R-A-, 24 l&N Dec. at 674. In both Matter of M-R-A- and Matter of C-R-C-, for
example, in addition to immediately seeking assistance from counsel after receiving the in
absentia orders of removal and filing motions to reopen, the aliens indicated that they had an
incentive to appear at proceedings by previously affirmatively filing for relief. See id. at 675;
Matter of C-R-C-, 24 l&N Dec. 677, 679-80 (BIA 2008). However, even if every type of
evidence is provided, the Co is not obligated to grant the motion, but rather should evaluate
the case based on its own particular circumstances. M-R-A-, 24 I&N Dec. at 674.