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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk

5107 leesburg Pike, Suite 2000


Falls Church, Vtrgmia 22041

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Johnson, Bryan Stephen OHS/ICE Office of Chief Counsel - BUF
Amoachi and Johnson, PLLC 130 Delaware Avenue, Room 203
1918 Union Boulevard Buffalo, NY 14202
Bay Shore, NY 11706

Name: J -B , D R ... A -157

Date of this notice: 3/16/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Mann, Ana

.. .

Userteam: Docket

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Cite as: D-R-J-B-, AXXX XXX 157 (BIA March 16, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: 157 - Buffalo, NY Date:


MAR 1 b 2017
In re: D R J B

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Bryan S. Johnson, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of El Salvador, appeals from the Immigration Judge's
January 5, 2016, decision denying her motion to reopen her removal proceedings after the
issuance of an in absentia order of removal. The Department of Homeland Security has not
responded to the appeal. The appeal will be sustained, the proceedings will be reopened, and the
record will be remanded to the Immigration Judge for further proceedings consistent with
this opinion.

We review findings of fact, including credibility findings, under the "clearly erroneous"
standard. 8 C.F.R. 1003. l(d)(3)(i). We review questions of law, discretion, or judgment, and
all other issues de novo. 8 C.F.R. 1003.1(d)(3)(ii).

On November 25, 2015, the respondent filed a motion to reopen her removal proceedings
following the issuance of the in absentia order on July 29, 2015. Pursuant to section
240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5)(C), an in absentia
removal order may be rescinded upon (1) a motion to reopen filed within 180 days after the date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 because of
exceptional circumstances; or (2) a motion to reopen filed at any time if the alien demonstrates
that she did not receive notice of the hearing, or that the alien was in Federal or State custody and
did not appear through no fault of her own. See also Matter of Guzman, 22 l&N Dec. 722
(BIA 1999).

The record contains the Notice to Appear (NTA), dated May 23, 2014, and Form 1-213,
Record of Deportable/lnadmissible Alien, dated May 2, 2014 (Exhs. 1-2). The NTA reflects that
(1) it was personally served on the respondent and signed by her, and (2) she was provided oral
notice in the Spanish language of the consequences of failing to appear for her hearing (Exh. 1).
See section 240(b)(5)(A) of the Act (providing that if an alien fails to appear at a proceeding, he
may be ordered removed in absentia). Upon the respondent's release from custody, she informed
immigration officials that she would be residing at her uncle's house at "304 Hancock Street"
(Motion to Reopen at unnumbered p. 1, Exh. A (Respondent's Affidavit), at 1, ,5, Exh. C
(Immigration Bond, ICE Form 1-352), at 14). Accordingly, the Immigration Court mailed the

Cite as: D-R-J-B-, AXXX XXX 157 (BIA March 16, 2017)
Immigrant & Refugee Appellate Center, LLC | www.irac.net

Cite as: D-R-J-B-, AXXX XXX 157 (BIA March 16, 2017)
Immigrant & Refugee Appellate Center, LLC | www.irac.net

Cite as: D-R-J-B-, AXXX XXX 157 (BIA March 16, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BUFFALO, NEW YORK

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In the Matter of:

J -B ,D R
A# -157 IN REMOVAL PROCEEDINGS

Respondent

CHARGES: INA 212(a)(7)(A)(i)(I) Documentation Requirements

MOTIONS: Motion to Reopen and Rescind In Absentia Order

ON BEHALF OF RESPONDENT ON BEHALF OF THE DHS


Bryan S. Johnson, Esq. Lisa M. Schultz, Esq.
Amoachi and Johnson, PLLC Assistant Chief Counsel
1918 Union Blvd. 130 Delaware A venue, Suite 203
Bay Shore, New York 11706 Buffalo, New York 14202

DECISION AND ORDER OF THE IMMIGRATION JUDGE

Respondent's motion to reopen and rescind the in absentia order is DENIED.

I. FACTS AND PROCEDURAL HISTORY

D J -B ("Respondent") is a native and citizen of El Salvador. See


Notice to Appear (May 23, 2014). Respondent is not a citizen or national of the United
States. Id. She allegedly arrived in the United States at or near Laredo, Texas on or about
April 30, 2014. Id. Respondent did not then possess or present a valid immigration visa,
reentry permit, border crossing identification card, or other valid entry document. Id.
Respondent was not then admitted or paroled after inspection by an Immigration Officer.
Id.

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On May 23, 2014, Respondent appeared for a Credible Fear Interview. See
Respondent's Form I-870 Record of Determination/Credible Fear Worksheet (May 23,
2014 ). Respondent was issued a Notice to Appear ("NTA"), charging her as subject to
removal pursuant to INA 212(a)(7)(A)(i)(I).

On July 29, 2015, Respondent failed to appear for her scheduled hearing. See

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Order of the IJ (Jul. 29, 2015). Consequently, the Court ordered Respondent removed to
El Salvador in absentia. Id.

On November 25, 2015, Respondent filed a motion to reopen and rescind the in
absentia order of removal. See Respondent's Motion to Reopen and Rescind in Absentia
Removal Order for Lack of Notice (May 28, 2015) (hereinafter "Respondent's Motion").
Respondent argues that she did not receive proper notice because "[o]n or about May fo
2015, she moved to the address of 301 Hancock Street, Brentwod, NY 11717. She did not
file an EOIR-33, change of address form because she was unaware of her obligation to do
so. Moreover, her family remained at her first address listed and she was confident that
any mail received for her would be forwarded to her attention." Id. at 4.

DHS submitted a memorandum in opposition to Respondent's Motion on


December 18, 2015. OHS argues that Respondent's reason for the motion to reopen does
not meet the standard necessary for the Court to reopen the matter.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Court has considered the entire record carefully. All evidence has been
considered, even if not specifically addressed in the decision below.

A. motion to and rescind the in absentia order of removal

The Court issued its removal decision on July 29, 2015. See Order of the IJ (Jul.
29, 2015). Because the Board of Immigration Appeals ("BIA") lacks jurisdiction to
consider an appeal from an in absentia removal order, see Matter of Guzman, 22 I&N
Dec. 722 (BIA 1999), the Court's order became final upon its issuance. See Order of the
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IJ (Jul. 29, 2015).
A motion to reopen must usually be filed within 90 days of the date of
a final administrative order of removal. INA 240(c)(7)(C)(i); 8 C.F.R. 1003.2(c)(2),
l003.23(b)(l). However, certain exceptions apply. See, e.g., INA 240(c)(7)(C)(ii).
Relevant to these proceedings, the "filing of a motion to reopen an order entered [in
absentia] is subject to [a separate deadline]." INA 240(c)(7)(C)(iii) (rescission of in
absentia orders of removal).

Respondent's motion to reopen was not filed within 90 days of the date of the
Court's final order of removal. Compare Respondent's Motion (Nov. 25, 2015), with
Order of the IJ (Jul. 29, 2015). Therefore, she can only proceed under the rescission

1 Generally, a decision of the U.S. Immigration Court "becomes final upon waiver of appeal or upon
expiration of the time to appeal if no appeal is taken whichever occurs first." 8 C.F.R. 1003.39.

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subsection. INA 240(b)(5)(C). According to that statute, an order of removal entered
in absentia may be rescinded only:

(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 because of exceptional

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circumstances (as defined in subsection (e)( 1)), or

(ii) upon a motion to reopen filed at any time if the alien


demonstrates that the alien did not receive notice in
accordance with paragraph (1) or (2) of section 239(a) or
the alien demonstrates that the alien was in Federal or State
custody and the failure to appear was through no fault of
the alien.

Id. Respondent alleges that there were exceptional circumstances that caused his
failure to appear at the July 29, 2015 hearing. However, because the facts alleged in
Respondent's Motion amount to an issue concerning notice, the Court will proceed on
that theory. Therefore, Respondent must demonstrate that she did not receive notice in
accordance with paragraph (1) or (2) of section 239(a) of the INA. (INA
240(b)(5)(C)(ii)).

The Court disagrees with Respondent's contention that she did not receive proper
notice. Section 239(a)(l) requires the government to provide an alien in removal
proceedings with a Notice to Appear-either in person "or, if personal service is not
practicable, through service by mail to the alien or to the alien's counsel of record, if
any." The NTA must contain certain advisals, including the nature of the proceedings
against the alien, the legal authority under which the proceedings are conducted, the acts
or conduct alleged to be in violation of law, and the charges against the alien. Id.

Respondent received written notice of her removal proceedings. Respondent


indicates in her motion that she personally signed the NTA but stated she "did not know
what [she] was signing." Respondent's Motion at 1. However, Respondent's NTA
provided her with all of the advisals required by INA 239(a)(l). Id. Further, The NTA
indicates that all advisals were provided to her in the Spanish language. See id.

Respondent does not state that the Court mailed the hearing notice to an incorrect
address or that there was otherwise some other defect with the mailing of her Notice of
Hearing. See id. Respondent's only argument is that she moved and assumed her family
would forward her mail to her new address. See Respondent's Motion at 5.

The Court is not responsible for the actions of friends or family members who
may come into contact with, or assume responsibility for, the rightful owner's mail.
There is no way to verify, based on the documentation presented with the instant motion,
that Respondent's allegations are true, apart from her own self-serving affidavit.

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Further, Respondent states in her motion that she is eligible to apply for asylum;
however, no relief application is appended to the instant motion and no other
documentation is presented to the Court on this matter. See Respondent's Motion at 11.

B. The Court's to sua

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The Court declines to reopen Respondent's case sua sponte. See 8 C.F.R.
1003.23(b). To the extent that the Court retains the authority to reopen a matter sua
sponte, that extraordinary remedy is reserved for "truly exceptional situations." Matter of
G-D-, 22 l&N Dec. 1132, 1134 (BIA 1999); see also Matter of J-J-, 21 I&N Dec. 976,
984 (BIA 1997). While an unfortunate occurrence, the extraordinary authority of the
Court to exercise sua sponte authority is not appropriate in this matter.

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ORDER

IT IS HEREBY ORDERED that Respondent's motion to reopen and rescind the


in absentia order is DENIED.

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Philip J. Mon
U.S. lmmigratio

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