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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virgm1a 22041

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Padron, Kristie-Anne OHS/ICE Office of Chief Counsel - DAL
Catholic Charities Legal Services 125 E. John Carpenter Fwy, Ste. 500
28 West Flagler Street Irving, TX 75062-2324
SUITE 1000
MIAMI, FL 33130

Name: R -S P A 503
Riders:

Date of this notice: 9/13/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.
Greer, Anne J.
Wendtland, Linda S.

Userteam: Docket

For more unpublished BIA decisions, visit


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Cite as: P-R-S-, AXXX XXX 503 (BIA Sept. 13, 2017)
U.S,. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

Files: 503 - Dallas, TX Date:


SEP 1 3 2017

In re: P R -S

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IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENTS: Padron Kristie-Anne, Esquire

APPLICATION: Reopening

The respondents, natives and citizens of E{ Salvador, have appealed from the Immigration
Judge's November 7, 2016, decision. In that decision, the Immigration Judge denied the
respondents' motion to reopen their removal proceedings in which they were ordered removed in
absentia on July 13, 2015. The respondents have submitted additional evidence on appeal, which
we will construe as a motion to remand. The Department of Homeland Security ("OHS") has not
filed an opposition to the appeal and it has not responded to the respondents' motion. The appeal
will be sustained, the motion to reopen will be granted, the in absentia order will be rescinded, and
the record will be remanded for further proceedings. The motion to remand will be denied as
moot.

We review for clear error the findings of fact, including the determination of credibility, made
by the Immigration Judge. 8 C.F.R. 1003.1(d)(3)(i) (2017). We review de novo all other issues,
including issues of law,judgment, and discretion. 8 C.F.R. 1003.l(d)(3)(ii).

The respondents, a mother and her daughter, entered the United States on March 30, 2015
(U at 1). The OHS took them into custody and served them with notices to appear on March 31,
2015 (U at 1; Exh. 1). The respondents were released from OHS custody on April 2, 2015 (U at 1).
At the time of their release, the respondents provided the DHS with an address in Texas to which
the notice of hearing could be sent (U at 1). On June 22, 2015, the Immigration Court sent a notice
of hearing by regular mail to the address the respondents provided (U at 1-2). The notice indicated
that a master calendar hearing was scheduled for July 13, 2015 (U at 1-2). The respondents did
not appear at the July 2015 hearing, and the Immigration Judge ordered them removed in absentia
(U at 2). The respondents moved to reopen and rescind the in absentia removal order on October 3,
2016, claiming that the lead respondent (hereinafter, ''the respondent") was prevented from
receiving the notice of hearing as a consequence of domestic abuse (Respondents' Motion at 3-4,
Tabs B). The Immigration Judge denied the motion, and the respondents have appealed from that
decision.

The respondents' motion to reopen is untimely. See 8 C.F.R. 1003.23(b)(4)(ii).


Nevertheless, they may move to rescind the in absentia' order at any time if they establish that they
did not receive notice of the removal hearing in accordance with sections 239(a)(l)-(2) of the

Cite as: P-R-S-, AXXX XXX 503 (BIA Sept. 13, 2017)
. . '

503 et al.

Immigration and Nationality Act, 8 U.S.C. 1229(a)( l )-(2) (2012). See section 240(b)(5)(C)(ii)
of the Act, 8 U.S.C. 1229a(b)(5)(C)(ii); see also 8 C.F.R. 1003.23(b)(4)(ii).

We agree with the respondents that the Immigration Judge applied the incorrect legal standard
in assessing whether they received notice of their removal hearing (Respondents' Motion at 4-5).
The Immigration Judge found that the factors we outlined in Matter of M-R-A-, 24 l&N Dec. 665

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(BIA 2008), for assessing whether an alien has overcome the presumption of delivery of a notice
of hearing sent by regular mail did not apply (U at 2). More precisely, the Immigration Judge
determined that delivery of the notice of hearing to the address the respondents provided was
"a conclusively demonstrated fact" since the respondents conceded in their motion that the notice
was, in fact, delivered to the address provided (U at 2). As a result, the Immigration Judge
concluded that our holding in Matter of G-Y-R-, 23 l&N Dec. 181 (BIA 2001), applied and cited
that case for the proposition that if a notice of hearing "reaches the correct address but does not
reach the alien through some failure in the internal workings of the household, the alien can be
charged with receiving proper notice, and proper service will have been effected" (U at 3 (quoting
Matter ofG-Y-R-, 23 l&N Dec. at 189)). However, Matter ofG-Y-R- is distinguishable because it
dealt with the presumption of delivery of a notice to appear sent by certified mail, whereas Matter
of M-R-A- dealt with a notice sent by regular mail, which is how the notice of hearing was sent in
this case. Further, Matter of G-Y-R- did not involve a respondent who claimed to have been
manipulated and abused by members of the household to which the notice was sent. Thus, we
conclude that the factors outlined in Matter of M-R-A- apply here.

We note, moreover, that the Immigration Judge's determination that receipt of the notice of
hearing was "conclusively demonstrated" appears to apply an "inflexible and rigid" test that we
stated in Matter ofM-R-A-, 24 I&N Dec. at 674, was not appropriate in assessing whether an alien
has overcome the weaker presumption of delivery by regular mail. Here, the Immigration Judge
found that the respondent went to live with her spouse in the United States (U at 4). While they
lived together in this country, the respondent's spouse: engaged in controlling and manipulative
behavior; did not let her leave their shared residence; did not allow her to pursue her immigration
case; threatened to have her deported; and had her live at an address that was different from the
address she had provided to the Immigration Court (U at 4-5; Respondents' Motion at Tab B). In
light of these circumstances, we conclude that the respondents have presented sufficient evidence
to overcome the weaker presumption of delivery of the notice of the hearing, which was sent by
regular mail, based on "all [of the] relevant evidence submitted." Id at 671, 673-74.

In addition to the above incidents of domestic abuse that the respondent experienced from the
time she entered the United States in March 2015 until she left her spouse in February 2016, the
respondent has documented her due diligence in pursuing reopening once she escaped her abusive
relationship, including her consultations with counselors and attorneys and her efforts to review
agency records pertaining to her case (Respondents' Motion at Tab B). We conclude that these
facts cumulatively qualify as exceptional circumstances that warrant tolling of the 180-day filing
deadline under section 240(b)(5)(C)(i) of the Act and granting the respondents' motion. Cf section
240(e)(l) of the Act (providing that "exceptional circumstances" for purposes of section 240 of
the Act refers to "exceptional circumstances Osuch as battery or extreme cruelty to the alien or
any child . . . beyond the control of the alien"); Lugo-Resendez v. Lynch, 831 F.3d 337, 344
(5th Cir. 2016) (holding that the 90-day filing deadline under section 240(c)(7)(C)(i) of the Act

Cite as: P-R-S-, AXXX XXX 503 (BIA Sept. 13, 2017)
503 et al.

may be equitably tolled where the alien presents evidence that he has been pursuing his rights
diligently and that some extraordinary circumstance stood in his way and prevented timely filing).

We will therefore sustain the respondents' appeal, reopen proceedings, rescind the Immigration
Judge's in absentia removal order, and remand the record for further proceedings. Because we are
remanding the record for further proceedings based on the foregoing analysis, the respondents'

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motion to remand will be denied as moot, although the materials accompanying the motion may
be presented to the Immigration Court to the extent that they bear on any claims or issues that are
raised on remand. Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: These proceedings are reopened, the Immigration Judge's in absentia
order is rescinded, and the record is remanded to the Immigration Court for further proceedings.

FURTHER ORDER: The respondents' otion to remand is denied as moot.

BOARD

Cite as: P-R-S-, AXXX XXX 503 (BIA Sept. 13, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

Files: 503 - Dallas, TX Date:


SEP 1 3 2017

In re: P R -S

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


DISSENTING OPINION: Patricia A. Cole, Board Member

I respectfully dissent. I would affirm the Immigration Judge's decision that denied the
respondents' motion to reopen their in absentia removal order. The Immigration Judge properly
applied Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001), to find that the respondent could be
charged with receiving proper notice of the hearing. The majority's reliance on Matter ofM-R-A-,
24 I&N Dec. 665 (BIA 2008) is misplaced and ignores the Immigration Judge's finding of fact
that the respondent changed her address and failed to file a change of address form and therefore
was not entitled to a notice of hearing nor rescission of an in absentia removal order. See INA
section 239(a)(2)(B); Gomez-Palacios v.Holder, 560 F.3d 354, 360 (5th Cir. 2009). Similarly,
the majority's finding that incidents of domestic abuse that the respondent experienced along with
her due diligence qualified as exceptional circumstances, also ignores the Immigration Judge's
findings that the respondent did not submit sufficient evidence of her abuse or sufficient evidence
that she had been diligent (IJ at 4-6)

I Patricia A. Cole
Board Member
-
..

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS

IN THE MATIER OF: )

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)
P R S , ) A 503
) A
)
RESPONDENT )

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE DEPARTMENT


OF HOMELAND SECURITY:

Kristie-Anne Padron, Esq. John Allums, Esq.

Order Denving Motion to Reopen

Respondent has filed the present Motion to Reopen based on lack of hearing notice, and

also requesting sua sponte consideration. Respondent also seek to apply for asylum, but have not

argued that there has been a change of circumstance with respect to their asylum claim. The

Dep$'Unent of Homeland Security (DHS or Government) has not filed a brief in response. The

motion will be denied.

Respondents are mother and child, native and citizen of El Salvador, who entered the

United States without inspection on March 30, 2015. Lead Respondent was served with the

NT As on March 31, 2015. Respondent was released from detention on her own recognizance on

or about April 2, 2015, and reported her address as being in Balch Springs, Texas. See Notice to

EOIR: Alien Address, April 2, 2015. Hearing notice was duly sent to that address, and received

1 Except where otherwise noted, reference to the lead Respondent should be deemed a reference also to the minor

child. I note that counsel for the child has submitted an E-33 listing a Florida address for the child, but the motion
states the child is actually living in Texas. Counsel should submit a corrected E-33 for the child stating the actual
address where she is residing.

1
,

by an adult there, MTR Tab B, para 5, but Respondent failed to appear for her hearing and was

ordered removed in her absence on July 13, 2015.

Respondent states, para 5, that the address belonged to an aunt of the father of her child,

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and that she was actually living at a different location. She states the Balch Springs address was

her "mailing address," but that the aunt only gave her the hearing notice after the hearing had

passed. Respondent does not claim that she filed form E-33 with the correct location she was

actually living.

In Feb. 2016, lead Respondent relocated to Florida to live with her mother, but the child

(Respondent Liz Guzman) remained in Texas. Some seven to eight months later, in Oct. 2016,

Respondent filed form E-33 showing a relocation from a previously unreported address in

Dallas, Texas to an address in Ft. Lauderdale, Florida, and listing a current cell phone number

with a 214 area code originating from the Dallas area.

Both of Respondent's theories-lack of notice and request for sua sponte reopening---

rest on an argument that Respondent was subject to abuse in the United States from the father of

her child (the father is present unlawfully in the United States) and his family, including his aunt

at the Balch Springs address.

2
Lack o(Notice

Respondent argues that I should apply the six factors listed by the Board in Matter of

M-R-A-, 24 I&N Dec. 665 (BIA 2008) in order to determine whether the "presumption of

delivery" has been overcome. I find it unnecessary to do so, however, as delivery of the hearing

notice to the address to which it is addressed is more than presumptive in this case, it is a

conclusively demonstrated fact. The Respondent has admitted that the notice of hearing was

2 While the Respondent attached a reliefapplication, form 1-589, to her MTR, she does not make an argument that
there has been a chance ofcircumstance concerning the asylum claim since the last hearing. Indeed, the application
is based on events occurring five years ago.

2
)

delivered properly by the Postal Service to the Balch Springs address, that it was received there

by the aunt of the father of her child, and that the aunt later delivered the hearing notice to her,

albeit after the hearing date had passed.

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The proper framework is not M-R-A- but rather Matter ofG-Y-R-, 23 I&N Dec. 181, 186

(BIA 2001). In that case, the Board squarely held that if the hearing notice "reaches the correct

address but does not reach the alien through some failure in the internal workings of the

household, the alien can be charged with receiving proper notice." Matter ofG-Y-R-, 23 I&N


Dec. at 1 9.


In eed, under the holding of G-Y-R-, and the statutory provisions cited therein,

Respondent is only entitled to receive a notice of hearing if she provides an address in writing of


where sh can be served with notice of process. Because the Respondent changed her ad ress d
from Bal i Springs, Texas to Dallas, Texas without notifying the Immigration Court, she was

not entitled to a notice of hearing, see INA section 239(a)(2)(B), and it was reasonable for the


Immigrati n Court to send a notice of hearing to the best available address. See Matter ofG-Y

R-, 23 I& Dec. 181, 186 (BIA 2001). Respondents' lack of actual notice was based on their

failure to timely file a change of address form. See Gomez-Palacios v. Holder, 560 F.3d 354, 360

b
(5th Cir. 2 o9). A failure to receive actual notice due to neglect of the alien's obligation to keep

l
the Court pprised of the alien's current mailing address does not entitle the alien to rescission of

the remov order. Id. at 360-61.

Ex e tional Circumstances!'. uitable Tollin

A1'1ough the Respondent missed the statutory deadline, she could still make an argument

r
based on e ceptional circumstances if equitable tolling were applicable. See Lugo-Resendez v.

\ \

3
) .J

Lynch, 831 F.3d 337 (5th Cir. 2016). To qualify for equitable tolling, Respondent must show

that 1) she has been pursuing her rights diligently, and 2) some extraordinary circumstance stood

in her way and prevented timely filing. Id. In the motion to reopen, Respondent's attorney

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implies that abuse from the father of lead Respondent's child interfered with Respondent's

ability to address her removal case.

The evidence on the abuse issue consists of Respondent's written statement, the 1-589,

3
and the E-33 attached to the MTR. No documentary evidence of abuse has been submitted.

According to her statements, she was physically abused in El Salvador five years ago, but

she does not claim physical abuse occurred in the United States. She was physically and

sexually abused in El Salvador when she was 14 by the father of the child. He then left El

Salvador fleeing the gangs and immigrated unlawfully to the United States. She does not

indicate how many years they were separated.

Subsequently, she herself had trouble with the gangs and she and the child came to the

United States unlawfully in Mch 2015. There were placed in family detention by the

immigration authorities in the U.S. Respondent was released on or about April 2, 2015. When

they were released, Respondent provided an address which belonged to an aunt of the father of

the child. She actually went to live with the father of her child at a different address, and did not

notify the Court of her actual address.

Respondent states the father of her child engaged in controlling and manipulative

behavior, didn't let her go out, didn't help her pursue her immigration case, used her immigration

status against her, "had" her live with him at a different address than her address of record,

3 Family court proceedings, initiated by the father of the child, are pending in Texas courts. Respondent did not
include a copy of those proceedings in her MTR.

4
J

manipulated and abused her ''through her daughter," and that his "family" tried to get her to let

his aunt adopt her daughter. MTR Tab Bat 16; Tab Cat 23.

The absentia order was issued on July 13, 2015. In Feb. 2016, Respondent left the

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apartment she shared with the father of her child and went to live with her mother in Florida.

The child remained in Texas, and is the subject of a family court proceeding currently pending

before the Texa.S Family Courts, initiated by the father of the child. The motion to reopen was

filed Oct. 3, 2016.

The E-33 attached to the MTR shows Respondent currently listing a cell phone number

with a (214) area code from the Dallas area.

There is not sufficient evidence that an extraordinary circumstance stood in her way and

prevented filing, and there is not sufficient evidence that Respondent has been diligent.

Respondent's statement is written primarily in conclusory rather than descriptive terms,

she does not claim physical or sexual abuse in the U.S. and does not provide details as to how

she was prevented from attending to her removal proceeding. Respondent admits the aunt gave

her the letter with the hearing notice, and does not state that the letter was opened when it was

given to her. If the father's "family" were trying to prevent Respondent from attending her

hearing, this letter would not have been given to her at all. The delay in her getting the letter was

caused by Respondent's giving a wrong address at the time of her release, and then failing to

update the address when she began living elsewhere.

At the time of Respondent's release from DHS custody, she could have gone to her

mother or brother's address, but chose to go to the father of the child and his extended family.

At that time she had been separated from the father of the child for an extended period of time

and had been living on her own with the child in El Salvador.

5
(

The fact that the Respondent obtained a separate cell phone in Dallas before she moved

to Florida-and then took that phone with her from Texas to Florida-- indicates that she could

have communicated with the Immigration Court, the DHS, the U.S. Postal Service, the

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representatives on the legal aid list which was given to her at the time she was served a copy of

the NTA, the Texas Family Courts, her mother or brother in the U.S., the police, an attorney, or

any number of organizations in Dallas that provide assistance to persons claiming domestic

abuse.

In light of the Respondent's failure to submit the records from the Texas Family Court

proceeding, and the lack of details to her claim that she was being manipulated "through her

daughter" I will not infer that those proceedings are evidence of abuse.

Finally, even if the entirety of the time Respondent lived with the father of the child is

tolled, Respondent still has not met the 180 day deadline, as eight months passed from the date

she moved from Texas to Florida and the date she filed the MTR. Again, there was a failure of

diligence.

From the time of release .from custody, Respondent did not provide the Court with her

address for 18 months, including 8 months spent living with her mother. The E-33 change of

address form-which was given to Respondent at the time of her release-- is supposed to be sent

within five days of having a change of address. Respondent's conduct is unreasonable.

For all of these reasons, Respondent does not meet either prong of the test for equitable

tolling.

6
)

Sua Sponte Reopening

Respondent requests sua sponte reopening in order to get around the 180 day time bar.

The Court may exercise its sua sponte authority to reopen when the Respondent demonstrates

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"truly exceptional situations" and where the interests of justice would be served. 8 C.F.R.

1003.23(b)(l); Matter ofG-D-, 22 I. & N. Dec. 1132 (BIA 1999); Matter ofBeckford, 221. & N.

Dec. 1216, 1218 (BIA 2000). This authority is not meant to cure filing defects or circumvent the

regulations. Matter ofG-D-, 22 I. & N. Dec. 1132, 1133-34 (BIA 1999). Sua sponte authority is

not intended to circumvent ineligibility rules.

As the motion admits th.at sua sponte reopening is requested to circumvent the time bar, it

is denied. Furthermore, for the reasons explained in the previous section, Respondent has failed

to exercise reasonable diligence, and thus is not eligible for sua sponte reopening. This case

does not present a "truly exceptional situation," and I decline to exercise sua sponte authority.

Date:
{o'{Ur' 7, 0/4 C)
R.
Kimball
Dallas, Texas Immigration Judge

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