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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Office ofthe Clerk

5 /07 Leesburg Pike, Suite 2000


Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - HOU


126 Northpoint Drive, Suite 2020
Houston, TX 77060

Name:NGALLO,MAUREEN

A 089-431-155
Date of this notice: 11/4/2016

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

DOn.,tL c,1/\A)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Mann, Ana
O'Connor, Blair
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Userteam: Docket

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Cite as: Maureen Ngallo, A089 431 155 (BIA Nov. 4, 2016)

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OGUERI, GABRIEL C.
OGUERI & ASSOCIATES,PC
5646 MILTON ST#745
DALLAS, TX 75206

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review


Falls Church, Virginia 22041

File: 089 431 155 - Houston, TX

Date:

NOV - 4 2016

In re: MAUREEN NGALLO

APPEAL
ON BEHALF OF RESPONDENT: Gabriel C. Ogueri, Esquire
ON BEHALF OF DRS: Rory H. Potter
Assistant Chief Counsel
APPLICATION: Reopening

The respondent, a native and citizen of Tanzania, was ordered removed from the United
States in absentia on April 6, 2009, after not appearing at a hearing. She appeals from the
Immigration Judge's decision dated March 3, 2015, denying her November 18, 2014, motion to
reopen. The appeal will be sustained.
The Board defers to the factual findings of an Immigration Judge, unless they are clearly
erroneous, but it retains independent judgment and discretion, subject to applicable governing
standards, regarding questions of law and the application of a particular standard of law to those
facts. 8 C.F.R. 1003.l(d)(3)(i), (ii).
The record fails to establish that the respondent received the Notice to Appear which contains
the required warnings and advisals. See section 239(a)(l) of the Immigration and Nationality,
8 U.S.C. 1229(a)(l); Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001) (requiring that an alien
be informed of the statutory address obligations associated with removal proceedings and of the
consequences of not providing a current address). In her affidavit, the respondent states that she
moved to Orlando, Florida, in 2007, and she did not receive the Notice to Appear which was
mailed on January 15, 2009, to her former address. 1 Documentation contained in the record
corroborates the respondent's change of address (Motion at 21). In light of the foregoing, the
record fails to indicate that the respondent received or can be charged with receiving the required
warnings and advisals set forth in section 239(a)(l)(F) of the Act, such that entry of an in
absentia order was not authorized. Matter of G-Y-R-, supra. Any lack of diligence in filing her
motion to reopen does not excuse this fact (I.J. at 3). These proceedings will therefore be
reopened based on lack of notice.

The Immigration Judge did not find that the respondent received the Notice to Appear (I.J. at
3).
Cite as: Maureen Ngallo, A089 431 155 (BIA Nov. 4, 2016)

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IN REMOVAL PROCEEDINGS

A089 431 155

Accordingly, the following order will be entered.

FOR THE BOARD

2
Cite as: Maureen Ngallo, A089 431 155 (BIA Nov. 4, 2016)

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

ORDER: The appeal is sustained, the in absentia order of removal is vacated, and these
proceedings are reopened and remanded for further proceedings consistent with the foregoing
opm1on.

'"-(,.,,
.,,.,,;.

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
600 JEFFERSON, SUITE 900
HOUSTON, TX 77002

FILE A 089-431155

IN THE MATTER OF
NGALLO, MAUREEN

DATE: Mar 3, 2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED


XATTACHED 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 20530
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS)I'HE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION .OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS,.iFILED IN ACCORANCE
WITH SECTION 242B ( c) (3) OF THE IMMIGRATION AND NA'PlGNALfTY ACT, s:\U\ s. c.
SECTION 1252B (c) (3) IN DEPORTATO.,,PROCEfilDG,.dR'' '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 FILEQ}.WITH .. THIS COURT:
.

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;,;IMMIGT1'0N COURT
? 600 JEFFERSON, SUITE 900
HOUSTON, TX 77002
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OTHER:

COURT41:fV..L,{,,L"7M ''

cc: !RAM HAFEEZ, A.C. C


126 NORTHPOINT DR. #2020
HOUSTON, TX, 77060

IMMIGRATION COURT

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OGUERI & ASSOCIATES,PC


OGUERI, GABRIEL C.
5646 MILTON ST #745
DALLAS, TX 75206

...,

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
HOUSTON, TEXAS

File Number: A 089-431-155

Maureen NGALLO
Respondent.

APPLICATION:

Respondent's Motion to Reopen In Absentia Order

ON BEHALF OF RESPONDENTS:
Gabriel Ogueri, Esq.
745 Meadows Building
5646 Milton Street
Dallas, Texas 75206

ON BEHALF OF DHS:
Iram Hafeez, A.C.C.
Department of Homeland Security
126 Northpoint Drive, # 2020
Houston, Texas 77060

ORDERS ON MOTION
Pending before the Court is Respondent's Motion to Reopen, filed on November
18, 2014. Respondent, through counsel, asks the Court to reopen her removal proceedings
and rescind its' in absentia removal order for lack of notice. The Department of
Homeland Security (DHS or the Government) did not file an opposition. For the reasons
stated below, the Court denies Respondent's requests.
I.

Factual & Procedural History

Respondent is a native and citizen of Tanzania. Exh. I; Respondent's Motion to


Reopen, Tab C at 18 (Nov. 18, 2014). She entered the United States on or about January
31, 1999 after being admitted as a noninimigrant. See Motion to Reopen, Tab C at 18,
Tab F at 25. She was approximately 10 years old at the time. See id., Tab C, at 18; see
also Exh. 3. On March 22, 2007, she filed Form 1-485, Application to Adjust Status, with
the U.S. Citizenship and Immigration Services (USCIS or the Service). See Exh. 3. This
application was denied on July 14, 2008 and her Notice to Appear (NTA) was issued six
months later. See Exh. 1. Respondent was served with the NTA by regular mail to the
address contained in her Form I-485. Compare Exh. I with Exh. 3. On March 5, 2009, the

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In the Matter of:

A 089-431-155
Court mailed Respondent's Notice of Hearing to the same address, indicating that her
immigration hearing would take place on April 6, 2009. See Exh. 2. On that date,
Respondent failed to appear and was ordered removed in absentia by the Court. See
Orders (Apr. 6, 2009).
II.

Law & Analysis

An in absentia order may only be entered where the alien has received, or can be
charged with receiving, the charging document. See Matter of G-Y-R-, 23 l&N Dec. 181
(BIA 2001). The alien must be properly served with the charging document in person,
though service by mail will suffice if personal service is not practicable. INA 239(a)(l).
The charging document must inform the alien of the statutory address obligations
associated with removal proceedings and of the consequences of failing to provide a
current address. See G-Y-R-, 23 l&N Dec. 181. The charging document "need not include
the specific time and date of a removal hearing in order for the statutory notice
requirements to be satisfied" as that information may be provided in a subsequent Notice
of Hearing. Gomez-Palacios v. Holder, 560 F.3d 354, 360 (5th Cir. 2009).
An in absentia removal order should not be revoked when the alien did not
receive the hearing notice because he neglected his statutory address obligations by
failing to provide the immigration court with his current mailing address. INA
240(b)(5)(B); see also Gomez-Palacios, 560 F.3d at 360 (finding that failure to receive a
hearing notice because respondent did not notify the Court of his change of address did
not mean he "did not receive notice" for purposes of section 240(b)(5)(C)(ii)). However,
an in absentia removal order must be rescinded if (1) the alien. has not received, and
cannot be properly charged with receiving, at his last provided address, the section
239(a)(l)(F) warnings and advisals contained in the NTA, see G-Y-R-, 23 I&N Dec. at
186-187 (reaffirmed by Matter of Anyelo, 25 l&N Dec. 337, 339 (BIA 2010), or (2) the
alien has received the NTA and complied with his address obligations but provides
sufficient evidence to overcome the presumption of effective service of a subsequent
hearing notice. See Matter of Grijalva, 21 l&N Dec. 27 (BIA 1995) (superseded by
statute on other grounds, INA 239(a)(l)); Matter of M-R-A-, 24 l&N Dec. 665 (BIA
2008); see also Maknojiya v. Gonzales, 432 F.3d 588 (5th Cir. 2005).

-2-

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An in absentia order of removal may be rescinded only in the following


circumstances: (i) upon a motion to reopen filed within 180 days after the date of the
order of removal if the alien demonstrates that the failure to appear was due to
exceptional circumstances; or (ii) upon a motion to reopen filed at any time if the alien
demonstrates that they did not receive notice in accordance with paragraph (1) or (2) of
section 239(a) of the INA, or the alien demonstrates that he was in Federal or State
custody and the failure to appear was through no fault of his own. INA 240(b)(S)(C); 8
C.F.R. 1003.23{b)(4)(ii) (2011). Furthermore, the filing of this motion shall stay the
removal of the alien until the Immigration Judge issues her decision. See 8 C.F.R.
I003.23(b)(4)(ii). An alien may file only one motion to reopen. Id.

A 089-431-155

In this case, Respondent argues that she did not receive the NTA or Notice of
Hearing. See Motion to Reopen, Tab C, at 19. As these documents were mailed by
regular mail, she must overcome a weak presumption of receipt. See Maknojiya, 432 F .3d
at 590. The record shows that the Service more than likely obtained the address used for
service of the charging document from Respondent's Form 1-485, which was filed almost
two years prior to placing Respondent in removal proceedings. Compare Exh. 1. with
Exh. 3. Respondent submitted a sworn affidavit explaining that she was not residing at
this address when the NTA was served. See Motion to Reopen, Tab C, at 18-19. She also
submitted documntary evidence supporting her contention. See id, Tab D, at 21.
Even so, Respondent became aware of her removal order on March 12, 2012,
Motion to Reopen, Tab C, at 19, but did not attempt to reopen her case until over a year
later. See Motion to Reopen, Tab E, at 22. She then waited another year to file the present
motion and provided no explanation for this delay. See Motion to Reopen (Nov. 18,
2014). Assuming her facts are true, Respondent became aware of her in absentia order of
removal three years ago. She then failed to act with due diligence in pursuing reopening
of her case. As a result, the Court finds that reopening is not warranted in this instance.
See M-R-A-, 24 I&N Dec. at 674.
III.

Conclusion

Based upon the foregoing, the following shall be entered:


ORDER
IT IS HEREBY ORDERED that Respondent's Motion to Reopen,,Ll ....... ,...,I&.:.I
/

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Date

//

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If the hearing notice was sent by certified mail, there is a presumption of effective
service that may be overcome only by "substantial and probative evidence." Makn.ojiya,
432 F.3d at 589 (quoting Grijalva, 21 I&N Dec. at 37-38). Presumption of receipt of the
hearing notice is weaker when the document is sent by regular mail instead of certified
mail. M-R-A-, 24 l&N Dec. 665; see Maknojiya, 432 F.3d at 590. Factors weighing in
favor of overcoming the weak presumption of delivery include the movant's affidavit,
affidavits from other individuals knowledgeable about the relevant facts, the movant's
actions upon learning of the removal order, any prior application for relief indicating an
incentive for the movant to appear, and any prior attendance at hearings. See M-R-A-, 24
I&N Dec. at 674.