U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Qffice of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

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

CRIMARCO, GEORGE EDWARD OHS/ICE Office of Chief Counsel - MIA
George E. Crimarco, P .A 333 South Miami Ave., Suite 200
250 Bird Road Miami, FL 33130
Suite 320
Coral Gables, FL 33146

Name: FINDLAY, WAYNE A 041-653-797

Date of this notice: 3/3/2017

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

bonrtL ct1/VL)
Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
O'Connor, Blair
Mann, Ana
Adkins-Blanch, Charles K.

.; 1:

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Wayne Findlay, A041 653 797 (BIA March 3, 2017)
 U.S. Department of Justice Decision of the Board of Immigration Appeals
' Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A041 653797-Miami, FL Date:

In re: WAYNE FINDLAY a.k.a. Wayne S. Findlay

MAR -3 2017

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

IN REMOVAL PROCEEDINGS

ON APPEAL

ON BEHALF OF RESPONDENT: George E. Crimarco, Esquire

ON BEHALF OF DHS: Michelle M. Odio

Assistant Chief Counsel

APPLICATION: Reopening

The respondent has appealed the Immigration Judge's decision dated July 15, 2016, denying
his motion to reopen. The Immigration Judge had previously ordered the respondent removed in
absentia for his failure to appear at the hearing on May 26, 2016. 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. I003.1(d)(3)(i), (ii). 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 Matter of
M-R-A-, 24 l&N Dec. 665 (BIA 2008). Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: These proceedings are reopened, the in absentia order of removal is
vacated, and the record is remanded to the Immigration Court for further proceedings.

FOR THE BOARD

Cite as: Wayne Findlay, A041 653 797 (BIA March 3, 2017)
q
C
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT - MIAMI, FLORIDA

IN MATTER OF: )

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

)
WAYNE S. FINDLAY ) IN REMOVAL PROCEEDINGS
)
A# 041-653-797 )
)
RESPONDENT )
)

APPLICATION: Motion to Reopen

ON BEHALF OF RESPONDENT ON BEHALF OF DEPARTMENT

George E. Crimarco, Esq. Vera Hochberg, ACC
250 Bird Road, Suite 320 Department of Homeland Security
Coral Gables, Fla. 33146 333 South Miami Avenue, Suite 200
Miami, Florida

DECISION AND ORDER OF THE IMMIGRATION JUDGE

PROCEDURAL IDSTORY

On June 27, 2016, Respondent, through counsel, filed a Motion to Reopen. On July 13, 2016,

the Department of Homeland Security ("Department") filed its Opposition to Respondent's Motion

to Reopen.

The Notice to Appear (''NTA'') issued by the Department August 31, 2015 was personally

served upon the Respondent. See Exh.l. The address listed was 365 N.W. 193 Terrace, Miami,

Florida 33169.The NTA provides in part, ''Notices of hearing will be mailed to this address... If

you fail to attend the hearing at the time and place designated on this notice or any date and time later
directed by the Immigration Court, a removal order may be made by the immigration judge in your

absence, and you may be arrested and detained by the DHS."

On September 23, 2015, the Court mailed a Notice of Hearing to this address. See Exh. 2.

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

The matter had been scheduled for May 26, 2016 at 9:00 AM. See Exh. 2. It was mailed to the

Respondent's last known address scheduling his removal hearing.The Notice of Hearing was not

returned by the United States Postal Service ("USPS"). The Notice of Hearing was mailed

approximately seven months before the scheduled hearing. The Respondent has not provided any

evidence that he attempted to confirm his date of hearing via the EOIR 1-800 system.

On May 26, 2016, the Respondent failed to appear and the Court proceeded in absentia at

10:00 AM. The Department submitted a judgment and conviction record and the Record of

Deportable Alien, Form 1-213.See Exhs. 3 & 4. The exhibits established the factual allegations in

the NTA and the Court found the Respondent removable as charged. The Respondent was ordered

removed to Jamaica and all applications were deemed abandoned for lack of prosecution. On May

26, 2016, a copy of the Order was mailed to the Respondent at the last known address and it also was

not returned as undeliverable by the USPS.

ANALYSIS

Respondent's Motion to Reopen provides Respondent's affidavit wherein he states that he

resides at 365 N.W. 193 Terrace, Miami, Florida 33169. The same address noted on the NTA, the

Notice of Hearing and where the Order was mailed. The Respondent further states that "I never

received the notice of hearing in the mail," but "a few days after May 26, 2016, I received the In

Absentia Order .. . " See Motion to Reopen, Affidavit. The Respondent does not explain how he was

able to receive the Order and not the Notice of Hearing, both addressed to the Respondent at this last

known address and neither returned as undeliverable by the USPS.

2
 The decision to grant or deny a motion to reopen . .. is within the discretion of the

Immigration Judge. 8 C.F.R. Section 1003.23(b)(i){iv). An alien may seek rescission of an in

absentia removal order by filing a motion to reopen (1) within 180 days after the order of removal by

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

demonstrating that his failure to appear was because of exceptional circumstances; or (2) at any time

if the alien demonstrates that he did not receive proper notice of the removal proceedings. Section

240{b)(5)(C) of the Immigration and Nationality Act ("Act "). Respondent seeks to reopen his case

on the grounds that he never received the notice. The motion to reopen is respectfully denied.

Due process requires that aliens be given notice and [an] opportunity to be heard in their

removal proceedings. Fernandez-Bernal v. U.S. Att'y Gen., 257 F.3d 1304, 1310 n.8 (11th

Cir.2001). Due process is satisfied so long as the method of notice is conducted in a manner

reasonably calculated to ensure that notice reaches the alien. Dominguez v. U.S. Att'y. Gen., 284

F.3d 1258, 1259 (11th Cir.2002). Service of the NTA instituting proceedings may be provided to

Respondent via regular mail. Section 239(a)(l ) of the Act. Moreover, an alien need not personally

receive, read, and understand the NTA for the notice requirements to be satisfied. Matter of M-D-,

23 l&N Dec. 540 (BIA 2002). In the present case, the Respondent was personally served with the

NTA.

In absentia proceedings are authorized if the alien actually receives or can be charged with

receiving the mailed notice. Matter of G-Y-R- 23 I&N Dec. 181, 189-190 (BIA 2001). In

Dominguez, the Eleventh Circuit indicated that notice sent to the last address submitted by the alien

to the DHS was conducted in a manner reasonably calculated to ensure it reached the alien. 284 F.3d

at 1259; see also Matter of M-D-, 23 l&N Dec. 540 (BIA 2002) (BIA held a respondent could be

charged with receiving the Notice to Appear where the Service used an address that the respondent

provided on a Form 1-589). In the instant case and in support of his Application for Cancellation of

3
 C
Removal for Certain Permanent Residents, Form EOIR 42A, the Respondent lists his address as 365

N.W. 193 Terrace, Miami, Florida 33169 from 1996 to Present in response to question 16 of Part 1.

Therefore, notice comports with the requirements of due process in this case, and Respondent

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

can be charged with receiving the Notice of Hearing. See Matter of G-Y-R- 23 I&N Dec. at 189

(the alien can be charged with receiving proper notice if the Notice to Appear reaches the correct

address but does not reach the alien through some failure in the internal workings ofthe household.).

A letter that is properly addressed, stamped, and mailed is presumed to have been duly

delivered. Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008). The Board of lmmigration Appeals

("BIA") established a weaker presumption of delivery for regular mail when compared to the strong

presumption of delivery for certified mail. Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008).

Each case presents different facts and circumstances and the Court must conduct a practical

evaluation of all the evidence, both circumstantial and corroborating evidence. In Matter ofM-R-A-,

the respondent overcame the presumption of delivery of a Notice of Hearing that was sent by regular

mail where he submitted affidavits indicating that he did not receive the notice, had previously filed

an asylum application and appeared for his first removal hearing, and exercised due diligence in

promptly obtaining counsel and requesting reopening of the proceedings. 24 I&N Dec. 665.

In Matter of C-R-C-, the respondent overcame the presumption of delivery of a Notice to

Appear that was sent by regular mail by submitting an affidavit stating that he did not receive the

notice and that he has continued to reside at the address to which it was sent, as well as other

circumstantial evidence indicating that he had an incentive to appear, and by exercising due diligence

in promptly seeking to redress the situation by obtaining counsel and requesting reopening of the

proceedings. 24 I&N Dec. 677. In the instant case, the Respondent has not explained why he did not

receive the Notice of Hearing yet received the Order addressed to the same address. A blanket and

.. )

unsubstantiated statement of not receiving notice will not suffice.

Further, the Respondent's circumstances do not warrant a sua sponte reopening by this Court.

The BIA has held that such requests must be reserved for exceptional circumstances and situations

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

and not "as a general cure for filing defects or to otherwise circumvent the regulations, where

enforcing them might result in hardship." Matter of J-J, 21 I&N Dec. 976 (BIA 1997).

Here, after careful review of the available evidence, the Court finds that Respondent has not

overcome the weak presumption of delivery. Based on the aforementioned, the Court finds that there

are no grounds on which to grant a motion to reopen and therefore denies Respondent's motion.

ORDER

DONE AND ORDERED IN CHAMBERS this 15 day of July 2016.

APPEAL DUE: AUGUST 15, 2016

cc: Respondent
Attorney of Record
Vera Hochberg, Assistant Chief Counsel