U.S.

Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Virginia 20530
CACERES-CHACON, ELISA MARSELL Y
1115-A CARLIN STREET
OHS/ICE Office of Chief Counsel - SNA
8940 Fourwinds Drive, 5th Floor
SIMI VALLEY, CA 93065 San Antonio, TX 78239
Name: CACERES-CHACON, ELISA MA ... A 098-487-209
Date of this notice: 11/8/2013
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Manuel, Elise
Grant. Edward R.
Sincerely,
Do c l
Donna Carr
Chief Clerk
Useream: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Elisa Marbelly Caceres-Chacon, A098 487 209 (BIA Nov. 8, 2013)
U.S. Deparmentof Justice
Executive Ofce fr Imigation Review
Falls Church, Virginia 22041
File: A098 487 209 - San Antonio, TX
In re: ELISA MARBELL Y CACERES-CHACON
IN RMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RSPONDENT: Pro se
APPLICATION: Reopening
Decision of te Boad of Imigation Appeals
Date:
NOV -8 2013
The respondent has appealed fom the Immigation Judge's decision dated April 25, 2013.
The Immigation Judge denied the respondent's motion to reopen proceedings in which she was
ordered removed in absentia. We review a Immigration Judge's fndings of fct fr clear eror,
but questions of law, discretion, and judgment, and all other issues in appeals, are reviewed de
novo. 8 C.F.R. I 003.1 (d)(3)(i),(ii). On de novo review, in light of the totality of the
circumstances presented in this matter, we will sustain the appeal ad reopen the proceedings
and allow te respondent another opportunity to appear fr a hearing. Accordingly, the
fllowing order will be entered.
ORDER: Te respondent's appeal is sustained, the respondent's November 23, 2004,
removal order is vacated, the proceedings are reopened, and the record is remanded to the
Immigration Cou fr fher proceedings con stent with the fregoing opinion and the entry of
a new decision.
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Cite as: Elisa Marbelly Caceres-Chacon, A098 487 209 (BIA Nov. 8, 2013)
UITED STATES DEPATMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET-SUITE 300
SA ATONIO, TX 78207
CACERES-CHACON, ELISA MARBELLY
1115-A- CALIN ST.
SIMI VALLEY, CA 93065
IN THE MATTER OF FILE A 098-487-209
CACERES-CHACON, ELISA MARBELLY
LE TO FORWAD - NO ADRESS PROVIDED
DATE: May 1, 2013
TACHED IS A COPY OF THE DECISION OF THE IMIGRTION JUDGE. THIS DECISON
IS FINAL UNLESS A APPEAL IS FILED WITH THE BOA OF IMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION .
. SEE THE ENCLOSED FORMS AD INSTRUCTIONS FOR .PROPERLY PREPAING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AD FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOAD OF IMMIGRTION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUGE AS TE RESULT
OF YOUR FAILURE TO APPEA AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AD NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR 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 FILED WITH THIS COURT:
IMMIGRATION COURT
800 DOLOROSA
CC: DISTRICT COUSEL
8940 FOUWINDS DR., STH FLOOR
SA ATONIO, TX, 782971939
IMMIGRTION COUT FF
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I
:
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, T 78207
I THE MATTER OF
CACERS-CHACON,
ELISA MARELL Y
RESPONENT
PROSE
I RMOVAL PROCEE
D
'
INGS
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Case No. A098-487-209
CHARGE: Section 212(a)(6)(A)(i) of the Immigation ad Nationality Act, as
amended: Alien present in the United States witout being admited or
paroled.
APPLICATION: 8 C.F.R. 1003.23(b): Motion to reopen
ON BEHALF OF THE RSPONDENT
Elisa Mabelly Caceres Chacon
PROSE
1115-A Calin St.
Simi Valley, CA 93065
ON BEHALF OF THE GOVERNMNT
U.S. Immigration & Customs Enfrcement
Ofce of Chief Cousel
8940 Fouwinds Drive, 5th Floor
Sa Antono, TX 78239
WRTTEN DECISION & ORDER OF THE IMMIGRATION JDGE
I. Procedural History
The respondent is a twenty-thee-year-
o
ld fmale, native and citizen of Honduas, who
a ived in te United States at or near Eagle Pass, Texas, on or about September 2, 2004. See
Exhibits I, 2. On September 3, 2004, the Deparment of Homelad Security (DHS) personally
served the respondent with a Notice to Appea (NTA), chaging her as removable pusuat to
section 212(a)(6)(A)(i) of the Immigration and Nationality Act (th .9t), . an4ed, a an alien
present in the United States wthout admission or parole. Exhit 1.
The NTA contains a section titled "Failure t o appear" tat specifes, inter alia, the
consequences of filing to appea fr any scheduled hearings. Id. The NT A refects that the
respondent wa advised of the consequences of non-appearance in the Spanish lagage. Id.

< .. ..F '

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\---
On November 23, 2004, the respondent was not present fr her heaing befre the Court
and was unavalable fr examination under oath. Pusuant to the authority provided in section
240(b )(5)(A) of the Act, the Court proceeded in absentia ad ordered the respondent removed
fom the United States to Honduras on the chage contained in the NTA.
On March 20, 2013, the respondent fled a motion to reopen her removal proceedings.
The goverent did not fle a response to te respondent's motion.
II. Motion to Reopen
A in absentia order of removal may be rescinded only (i) upon a motion to reopen fled
within 180 days afer the date of the order of removal if the alien demonstates tat the filure to
appear was because of exceptional circumstances, or (ii) upon a motion to reopen fled at any
time if the alien demonstrates that she did not receive notice in accordance with paagraph (1) or
(2) of section 239(a) of the Act, or the alien demonstrates tat she was in Federal or State
custody and the filure to appear was through no fult of her own. Section 240(b)(5)(C) of the
Act; 8 C.F.R. 1003.23(b)(4)(ii).
A. Exceptional Circumstances
Over eight years passed between the date the Cour ordered the respondent removed in
absentia and the date the respondent fled her motion to reopen. Accordingly, her motion to
reopen based on exceptional circumstances is time-bared. Id.
B. Notice
Concering notice, the respondent claims she never received a notice of hearing. See
Respondent's Motion. Respondent claims to have no knowledge of a cour date or whether or
not her sister knew of aything related to a cour date. See id. The record reveals that
immigration ofcials personally served the respondent with a NT A. Exhibit 1. As required by
section 239(a)(l) of the Act, te NTA advised the respondent of her obligation to provide an
address and advised her of the consequences of filing to appear befre te Cou. Id. The
respondent was also orally advised of the consequences of non-appearace in the Spaish
laguage. Id. Neither the respondent nor her sister provided a mailing address to immigration
ofcials as shown on the fce of the NTA and I-213. See Exhibits 1, 2.
Personal service of the NTA on the respondent was proper. The regulations require that
if a alien is "under the age of 14," the NTA must be served upon the person with whom te
minor resides. 8 C.F.R. 1236.2(a). The respondent's 1-213 and her motion indicate that she
was over the age of furteen years old when immigration ofcials served her wit the NT A. See
Respondent's Motion; Exhibit 2. Because the respondent was at least fueen years old when
2
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( ,__
imm_gration offcials served her with the NT A, personal service on the respondent was proper.
M
atter of Cubor, 25 I&N Dec. 470, 473 (BIA 2011).
Because the respondent filed to provide an address to the Court as required, the Court
wa not required to mail her a notice of hearing. Section 239(a)(2)(B) of the Act. Furhermore,
because the respondent neglected an obligation of which she was notifed in the NT A, filure to
receive notice of her hearing is not a ground fr reopening her removal proceedings. See Gomez
Palacios v. Holder, 560 F.3d 354, 360-61 (5th 2009). Thus, the respondent cannot show that she
filed to appear trough no fult of her own, and the Court will not rescind her in absentia
removal order or reopen her removal proceedings. Section 240(b)(5)(C) of the Act; 8 C.F.R.
1003 .23(b )( 4)(ii).
Accordingly, the fllowing order is hereby entered:
ORDER
IT IS HEREBY ORDERED that the respondent's motion to reopen is DENIED.
IT IS FURTHER ORDERED that the respondent's motion to change venue is DENIED as
moot.
Date: //l J5, 2013
Glenn P. McPhaul
United States Immigration Judge
3
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