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 2204 l

DHS/ICE Office of Chief Counsel - MIA

333 South Miami Ave., Suite 200
Miami, FL 33130

Name: PASCUAL MANUEL, ANDRES

A 099-983-058
Date of this notice: 7/6/2016

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

bon.nL

{!l1/Vt)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Mann, Ana
Adkins-Blanch, Charles K.
O'Leary, Brian M.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Andres Pascual Manuel, A099 983 058 (BIA July 6, 2016)

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

Diaz, Hector
Hector Diaz, P.A.
1749 SW 8th Street
Miami, FL 33135

'

U.S. Department of Justice

Executive Office for Immigration Review

Decision ofthe Board of Immigration Appeals

Falls Church, Virginia 22041

File: A099 983 058 -Miami, FL

Date:

In re: ANDRES PASCUAL MANUEL

JUL - 6 2016

APPEAL
ON BEHALF OF RESPONDENT: Hector M. Diaz, Esquire
ON BEHALF OF DHS:

Jannell Leal Garcia

Assistant Chief Counsel

APPLICATION: Reopening

The respondent has appealed the Immigration Judge's decision dated May 12, 2015, denying
his motion to reopen. The respondent had previously been ordered removed in absentia for his
failure to appear for the hearing on August 29, 2007. The appeal will be sustained.
We review an Immigration Judge's 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)(i),
(ii).
On appeal, the respondent contends that reopening is warranted because he never received
the Notice to Appear (Form 1-862) containing the date and time of his removal hearing, as it was
sent to an address at which he no longer resided. See section 240(b)(5) of the Immigration and
Nationality Act; 8 U.S.C. 1229a(b)(5); 8 C.F.R. 1003.23(b)(4)(ii). The record reflects that
the Notice to Appear was mailed to the respondent at "451 SE 8th St Lot 120 Homestead, FL
33030-0000" on January 18, 2007 (Exh. 1). This address is reflected in the respondent's
previously submitted asylum application (Exh. 2). However, the respondent asserts in a sworn
affidavit that he moved from this address prior to service of the Notice to Appear. The record
also reflects that a notice the Department of Homeland Security mailed to the respondent at the
above address on January 26, 2007, was returned to sender marked "attempted- not known"
(Exh. 5).
Written notice is considered sufficient if provided at the most recent address provided by the
respondent under section 239(a)(l)(F) of the Act. Section 240(b)(5)(A) of the Act, 8 U.S.C.
1229a(b)(5)(A). In this matter, inasmuch as there is insufficient evidence that the Notice to
Appear was sent to the most recent address provided by the respondent or that he actually
received it, we find it appropriate to rescind the in absentia order of removal and reopen his
removal proceedings. See Matter ofG-Y-R-, 23 I&N Dec. 181 (BIA 2001).

Cite as: Andres Pascual Manuel, A099 983 058 (BIA July 6, 2016)

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

IN REMOVAL PROCEEDINGS

A099 983 058

Accordingly, the following order will be entered.
ORDER: The respondent's appeal is sustained, the proceedings are reopened, the in absentia
removal order is rescinded, and the record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion and the entry of a new decision.

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

2
Cite as: Andres Pascual Manuel, A099 983 058 (BIA July 6, 2016)

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTNE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
MIAMI, FLORIDA

A Number: A099-983-058

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of ANDRES PASCUAL MANUEL

[
HS does not oppose the motion.
[ ] The Respondent does not oppose the motion.
[ ] A Response to the motion has not been filed with the court.
[ ] Good cause has been established for the motion.
[ ] The court agrees with the reasons stated in the opposition to the motion.
[I] Jhe
ion is untimely er
[ v(Other:
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Date

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'

Certificate of Service
This document was served by: [ 1 [ ] Personal Service
To: [en [ ] Alien c/o Custodial Officer [s Atty/Rep [
By Court Staff:
Date:
S \ 2 \S-

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

In the Matter of: ANDRES PASCUAL MANUEL