U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5 /()7 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - LOS

606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name: GARCIA-NAVA, JESUS ALBERTO

A 205-721-176
Date of this notice: 10/13/2016

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

DOWtL ct1AA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Jesus Alberto Garcia Nava, A205 721 176 (BIA Oct. 13, 2016)

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Kolfschoten, John
Law Offices of John Kolfschoten
3807 Wilshire Blvd, Suite 770
Los Angeles, CA 90010

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A205 721 176 -Los Angeles, CA

Date:

OCT 1 3 2016

In re: JESUS ALBERTO GARCIA-NA VA ak.a. Jesus Alberto Garcia a.k.a. Jesus Garcia Nava

APPEAL
ON BEHALF OF RESPONDENT: John Kolfschoten, Esquire
APPLICATION: Reopening
The respondent appeals from an Immigration Judge's decision dated May 6, 2016,
denying the respondent's motion to reopen his removal proceedings conducted in absentia. The
Department of Homeland Security (DHS) has not filed an opposition to the appeal. The record
will be remanded.
Based on the record before the Immigration Judge, we find no error in the denial of the
motion to reopen. However, given the respondent's counsel's proffer on appeal, which appears
to establish that the respondent and counsel appeared on July 31, 2015, albeit in the wrong
courtroom, we will remand the record to allow the Immigration Judge to evaluate the submitted
evidence and compare it to any pertinent records of the Immigration Court. On remand, the
parties shall have the opportunity to supplement the record, and, thereafter, the Immigration
Judge shall issue a new decision.
In remanding this record, we intimate no opinion as to the merits of this appeal or the
ultimate resolution of this case.
ORDER: The record is remanded to the Immigration Court for further proceedings
e en
decision.
consistent with the foregoing opinio

FOR

E OARD

Cite as: Jesus Alberto Garcia Nava, A205 721 176 (BIA Oct. 13, 2016)

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IN REMOVAL PROCEEDINGS

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
606 SOUTH OLIVE ST.
LOS ANGELES, CA 90014

IN THE MATTER OF
GARCIA-NAVA, JESUS ALBERTO

FILE A 205-721-176

DATE: May 9, 2016

UNABLE TO FORWARD - NO ADDRESS PROVIDED

t)(ATTACHED 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 MAILL<NG'.:OF THIS WRITTEN DECISION.
SEE THE . ENCLOSED FORMS AND INSTRUCTIONS FOR PROERr.,Y .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 22041
ATTACHED IS A COPY OF THE DECI.SION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A.MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242R(c)(3) OF THE IMMIGRATION AND 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
606 SOUTH OLIVE ST.
LOS ANGELES, CA 90014
'

OTHER:
/

FF

CC: DAVID CHANG, ESQ

606 S. OLIVE ST., STE 800
LOS ANGELES, CA, 90014

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Law Offices of J"'Ohn Kolfschoten

Kolfschoten, John
3807 Wilshire Blvd. $uite 770
Los Angeles, CA 90010

....

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
A 205 721176

In the Matter of:

IN REMOVAL PROCEEDINGS

GARCIA-NAVA, Jesus Alberto

(a.k.a. GARCIA, Jesus Alberto;
a.k.a. GARCIA NAVA, Jesus)
Respondents
CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA)

present in the United States without being admitted or paroled

APPLICATION:

Motion to Reopen
ON BEHALF OF THE GOVERNMENT:
David Chang, Assistant Chief Counsel
U.S. Department of Homeland Security
606 South Olive Street, Eighth Floor
Los Angeles, California 90014

ON BEHALF OF RESPONDENT:
John Kolfschoten, Esquire
Law Offices of John Kolfschoten
3807 Wilshire Boulevard, Suite 770
Culver City, California 90010

DECISION AND ORDER OF THE IMMIGRATION JUDGE

Jesus Alberto Garcia-Nava (Respondent) is a native and citizen of Mexico. Exh. I. On
October 9, 2013, he U.S. Department of Homeland Security (Government) personally served
Respondent with a Form 1-862, Notice to Appear (NTA). Id. Therein, the Government alleged
that Respondent entered the United States at an unknown place on an unknown date, and was not
then inspected by an immigration officer. Exh. 1. Based on these allegations, the Government
charged Respondent as removable pursuant to section 212(a)(6)(A)(i) of the INA. Id.
Jurisdiction vested and removal proceedings commenced when the Government filed the NTA
with the Court on October 24, 2013. See 8 C.F.R. 1003.14(a); Exh. 1.
On October 16, 2014, Respondent appeared before the Court, and through counsel, John
Kolfschoten, admitted the factual allegations and conceded removability as charged in the NTA.
Respondent designated Mexico as the country of removal and as relief from removal, requested
adjustment of status pursuant to a family-based immigrant petition. The Court continued
proceedings to allow Respondent to file a Form 1-130, Alien Relative Petition (1-130 Petition)
with the U.S. Citizenship and Immigration Service (USCIS).
I

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File No.:

On July 31, 2015, neither Respondent nor Mr. Kolfschoten appeared for Respondent's
scheduled hearing, and the Court proceeded in absentia. Based on his prior admissions and
concession, the Court found Respondent's removability established as charged. Accordingly, the
Court ordered Respondent removed to Mexico. See IJ Decision (July 31, 2015).

More troubling, the allegations contained in Mr. Kolfschoten's affidavit as well as the
motion are belied by the record. Indeed, the record confirms that the last appearance Respondent
made before the Court was on January 22, 2015. 2 When he was unable to provide proof of filing
of the 1-130 Petition with USCIS, the Court continued proceedings and provided Respondent
with a Notice of Hearing (NOH) for his next scheduled hearing at 1:00 p.m. on July 31, 2015.
. See Exh. 3. Despite Respondent's receipt of the NOH, the digital audio recording of the July 31,
2015 hearing reflects that neither Respondent nor Mr. Kolfschoten was present in Court that day.
The Court waited until 1 :40 p.m., at the conclusion of all other matters before it that afternoon,
before proceeding in absentia. Upon confirmation on the record that no one answered to
Respondent's name in the adjacent hallway, the Court issued an order of removal against him.
See IJ Decision (July 31, 2015). The Court's written decision was mailed to Mr. Kolfschoten on
August 7, 2015. Therefore, the Court finds no merit to Respondent's uncorroborated claim that
he was in fact present3 and denies his motion to reopen.
Accordingly, the following order shall be entered:

1
Respondent initial1y appealed the Court's July 31, 2015 remova] order to the Board of Immigration Appeals (BIA)
on August 24, 2015. He subsequently requested reopening by the Court after the BIA found it lacked jurisdiction
over his appeal on November 20, 2015 pursuant to the procedures for rescinding in absentia orders as set forth in
section 240(b)(5)(C) of the INA. Jesus Alberto Garcia-Nava, A 205 721 176 (BIA Nov. 20, 201 5).
2
The Court notes that Respondent did not appear with Mr. Kolfschoten, his attorney of record, at the January 22,
2015 hearing. Instead, Daviq Weissman made a single appearance with Respondent on Mr. Kolfschoten's behalf.
3
The clear inaccuracies of the allegations contained in the motion and Mr. Kolfschoten's affidavit suggest that
counsel acted with reckless, if not knowing, disregard in making false assertions to the Court in violation of8 C.F.R.
1003.I02(c) and may have engaged in frivolous behavior in vio]ation of8 C.F.R. 1003.1020).

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On April 12, 2016, Mr. Kolfschoten filed the instant motion to reopen on Respondent's
behalf, 1 alleging therein that the record of in absentia removal order was inaccurate and entered
in error. Resp't's Mot. to Reopen, 1 (Apr. 12, 2016). The motion asserts that Respondent was
present with Mr. Kolfschoten at the July 31, 2015 hearing, and rather than being removed, was
granted a continuance of proceedings pending the USCIS's adjudication of his 1-130 Petition. Id.
The only support provided for Respondent's motion was Mr. Kolfschoten's sworn affidavit,
alleging the same facts. Id. However, statements of counsel are not evidence. See Matter of
Ramirez-Sanchez, 17 I&N Dec. 503, 505-06 (BIA 1980).

ORDER
IT IS HEREBY ORDERED that Respondent's motion to reopen be DENIED.

v;IL
Gita Vahid-Tehrani
Immigration Judge

APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any appeal
is due at the Board of Immigration Appeals within thirty (30) calendar days from the date of
service of this Order.

CERTIFICATE OF SERVICE

"".
1HJS DOCUMENT WAS SERVED Bl
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TO: ( J ALIEN
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DATE5J BY:COURTSTA
Attachments: ( J EOIR-33
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DATE:6-I