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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Office of the Clerk
5/07 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: AGUILERA-GALEAS, NINFA RO ...

A 098-986-533

Date of this notice: 10/17/2016

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

Dc,n,u_ Cl1/VLJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Mann, Ana
O'Connor, Blair
I

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Cite as: Ninfa Rosa Aguilera-Galeas, A098 986 533 (BIA Oct. 17, 2016)

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Acosta Jr., Mario


Law Office of Mario Acosta Jr.
611 Wilshire Boulevard, Suite 1408
Los Angeles, CA 90017

U.S. Department of Justice

, Executive <Mfice for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A098 986 5 33 -Los Angeles, CA

Date:

In re: NINFA ROSA AGUILERA-GALEAS

OCT 1 7 2016

APPEAL
ON BEHALF OF RESPONDENT: Mario Acosta, Jr., Esquire
APPLICATION: Reopening
The respondent, a native and citizen of Honduras, was ordered removed in absentia on
April 16, 2007 . On November 20, 2014, the respondent filed a motion to reopen proceedings,
which an Immigration Judge denied on March 2, 2015. The respondent filed a timely appeal of
that decision. The appeal will be sustained, the Immigration Judge's order will be vacated,
proceedings will be reopened and the record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the clearly erroneous standard. 8 C.F.R. 1003.l(d)(3)(i), (ii) .
The Board reviews questions of law, discretion, and judgment and all other issues in appeals
from decisions oflmmigration Judges de novo.
Upon de novo review of the record and in light of the totality of circumstances presented in
this case, we conclude that the respondent demonstrated that reopening is warranted. 1 See
section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5)(C)(i),
(e)(l). We will therefore sustain the respondent's appeal and remand the record for further
proceedings.
ORDER: The respondent's appeal is sustained, the in absentia order is vacated, proceedings
are reopened and the record is remanded to the Immigration Judge for further proceedings and
for the entry of a new decision.

Among other factors, we have considered the delay in filing of the Notice to Appear with the
Court, the respondent's claim to have appeared at the Court on the original hearing date, her
potential eligibility for relief as well as the lack of opposition from the Department of Homeland
Security.
Cite as: Ninfa Rosa Aguilera-Galeas, A098 986 533 (BIA Oct. 17, 2016)

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
A 098 986 533

In the Matter of:


AGUILERA-GALEAS,
Ninfa Rosa,
Respondent

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IN REMOVAL PROCEEDINGS

CHARGE:

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


(2007) - alien present in the United States without being admitted or
paroled

APPLICATION:

Respondent's Motion to Reopen and Rescind In Absentia Order


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

ON BEHALF OF RESPONDENT:
Mario Acosta, Jr., Esquire
Law Office of Mario Acosta, Jr.
61 1 Wilshire Boulevard, Suite 1 4 1 6
Los Angeles, California 9001 7

DECISION AND ORDERS OF THE IMMIGRATION JUDGE


I.

Procedural History

Ninfa Rosa Aguilera-Galeas (Respondent) is a native and citizen of Honduras. Exh. 2.


On June 21, 2005 , Respondent was detained by U.S. Border Patrol. See id. That same day, the
Government personally served Respondent with a Notice to Appear (NTA) and released her on
her own recognizance. See id. In the NTA, the Government charged Respondent with
inadmissibility pursuant to INA 2 1 2(a)(6)(A)(i), as an alien present in the United States
without being admitted or paroled. Exh. 1 . Jurisdiction vested and removal proceedings
commenced against Respondent on March 27, 2007, when the Government filed the NTA with
the Court. See 8 C.F.R. 1 003. 1 4(a).(2007).
On March 29, 2007, the Government served Respondent by regular mail with a Notice of
Hearing (NOH), notifying her of her scheduled hearing before the Court on April 16, 2007. See
Exh. 3. On April 1 6, 2007, Respondent failed to appear for her scheduled hearing, and the Court
proceeded in absentia. Based on the Form 1-2 1 3, Record of Deportable/Inadmissible Alien, the
Court found that the Government had established Respondent's inadmissibility by clear,
convincing, and unequivocal evidence. Id. Accordingly, the Court ordered Respondent removed
to Honduras.
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File No.:

On November 20, 2014, Respondent filed the pending motion to reopen. Therein,
Respondent alleges that she did not receive proper notice of her April 16, 2007 hearing. In the
alternative, she asks the Court to exercise its sua sponte authority_ to reopen proceedings.

A. Notice

II.

Law and Analysis

The Court may rescind an in absentia removal order upon a motion filed at any time if
the respondent demonstrates that she did not receive proper notice of her scheduled hearing.
INA 240(b)(5)(C)(ii); 8 C.F.R. 1003. 23(b)(4)(iii)(A)(2). The INA provides that the NTA
shall be given in person to the respondent or, if personal service is not practicable, through
service by mail to the respondent or the respondent's counsel of record, if any. See INA
239(a)(l); 8 C.F.R. 1003.13. Once the NTA has been properly served, the respondent is
required to provide an address at which she can be contacted, and she has an affirmative
obligation to update the Court if that address changes. See INA 239(a)(l)(F). Additionally,
the NOH is deemed sufficient if mailed to the most recent address provided by the
respondent. See INA 240(b)(5)(A); Matter ofG-Y-R-, 23 I&N Dec. 181, 185 (BIA 2001). The
respondent can be properly charged with receiving constructive notice, even if she did not
personally see the mailed document. G-Y-R-, 23 l&N Dec. at 189.
In this case, Respondent does not contest that she was properly served with the NTA on
June 21, 2005. Instead, Respondent asserts that she did not personally provide the Government
with an address at which she could be contacted, and was not notified of the need to do so. See
Respondent's Motion, Tab A. Specifically, she claims that during her brief detention on June 21,
2005, an official asked for her address, but because she did not know the address at which she
would be staying, she gave the official her daughter's telephone umber. See id. Respondent
claims the official then called her daughter, and her daughter provided a Los Angeles address.
See id. This was the address the Government included on Respondent's NTA and to which the
Court mailed the NOH notifying Respondent of her April 16, 2007 hearing. Exhs. 1, 3.
Respondent now claims, however, that neither she nor her daughter resided at that address and
that she did not understand the conversation between the official and her daughter because it was
in English. See Respondent's Motion, Tab A. She argues that because she was never notified of
the requirement that she provide a corrected address to the Court pursuant to 8 C.F.R.
1003.lS(d)(l), she did not receive proper notice of her April 16, 2007 hearing. See
Respondent's Motion.
Respondent relies on Velasquez-Escovar v. Holder, 768 F.3d 1000 (9th Cir. 2014), to
support her argument. There, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit)
held that if the Government incorrectly records the address provided by the respondent on the
NTA, the respondent does not have an affirmative duty to correct the address. See id. at l 006.
In that case, the respondent was entitled to a rescission of the in absentia order of removal
against her because the Government sent the NOH to the incorrect address, thus depriving her of
the notice she was due under the INA. See id. at 1002, I 006.
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For the following reasons, Respondent's motion to reopen will be denied.

(
'

Respondent's case, however, is distinguishable from that of the respondent in Ve/asquez


Escovar. Respondent, by her own admission, failed to provide the Government with an address
at which she could be contacted regarding her proceedings. See Respondent's Motion, Tab A ("I
personally never gave [the immigration officials] any address."). This was despite the fact that
she was on notice of this obligation upon receiving the NTA. See Exh. 1 . By contrast, in
Velasquez-Escovar, the respondent provided her correct address to the Government, and it was
the Government that incorrectly recorded it. See Ve/asquez-Escovar:1 768 F.3d at 1002. Unlike
the respondent in Velasquez-Escovar, Respondent failed to comply with her obligations under
INA 239(a)(l)(F), first to supply an accurate address and then to update that address if it
should change. Therefore, although notice of Respondent's April 16, 2007 hearing was not sent
to her actual address, this was through no fault of the Government, and Respondent was provided
with sufficient notice. See INA 240(b)(5)(B) ("No written notice shall be required under
subparagraph (A) [relating to in absentia orders of removal] if the alien has failed to provide the
address required under section 239(a)(l)(F).").
Moreover, Respondent is attempting to benefit from her daughter's deceptive statements
to a government agent. Respondent states that her daughter provided an immigration official
with the address where she worked as opposed to the address where Respondent would reside.
See Respondent's Motion, Tab A. Respondent cannot now exploit this deception to her
advantage. Respondent was clearly served with the NTA and the address requirements therein.
She was required by law to make any address changes and has failed to do so for the past nine
years.
Based on the foregoing, Respondent has failed to demonstrate that she did not receive
proper notice of her April 16, 2007 hearing. Because Respondent received legally sufficient
notice of her hearing, the Court will not reopen her proceedings based upon lack of notice.
B. Sua Sponte Reopening

An immigration judge may, upon her own motion at any time, or upon motion of the
Government or the respondent, reopen any case in which she has made a decision. 8 C.F.R.
1 003.23(b)(l). The decision to grant or deny a motion to reopen is within the discretion of the
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In support of its holding, the Ninth Circuit noted that in accordance with INA
239(a)(l)(F)(i) and (ii), the warnings contained in an NTA state that a respondent must ( 1 )
provide the Government with an address at which she can be contacted regarding her removal
proceedings, and (2) notify the Government of any change of address if she moves. See id. at
1 004. The NT A further notifies a respondent that if she fails to comply with these two
requirements, she is not entitled to written notice of future hearing dates. Id. However, the
written warnings in the NTA do not notify a respondent of her obligation under 8 C.F.R.
I003. 1 5(d)(l) to correct her address if the one contained in the NTA is incorrect through no
fault of her own. Id. at 1 005 ("Nothing in the [NTA] advisal mentions or fairly implies . .. a
continuing duty to correct the government."). The Ninth Circuit found that a respondent could
only be held to this obligation to correct an incorrect address if she were first notified of the
obligation, stating that "even aliens who have been served an NTA cannot be held to the address
obligation in 1003. lS(d)(l) because the NTA does not mention it." Id. at 1 006.

In the present matter, it would be inappropriate to grant Respondent's motion sua sponte.
Respondent states that she attempted to attend a hearing at the Court on July 20, 2005 , the date
listed on her NTA; however, because the Government had not yet filed the NTA with the Court,
she was informed that there were no proceedings against her at that time. See Exh. 1;
Respondent's Motion, Tab A. Nevertheless, this did not excuse Respondent from providing the
Government and the Court with accurate address information, and as discussed above, she was
notified of this requirement upon proper service of the NTA. Moreover, the fact that Respondent
attempted to attend her first hearing is insufficient to establish exceptional circumstances that
would warrant the Court exercising its sua sponte authority. See J-J-, 21 I&N Dec. at 984.
Respondent also states that she is now married to a U.S. citizen and may be eligible for
certain forms of relief. However, even if she were to establish prima facie eligibility for relief,
any equities acquired after an in absentia removal order are accorded limited weight. See INS v.
Rios-Pineda, 47 1 U.S. 444, 450-5 1 (1985).
Based on the foregoing, and in the interest of finality, the Court declines to reopen
Respondent's case under its sua sponte authority.
Accordingly, the following order shall be entered:
ORDER
IT IS HEREBY ORDERED that Respondent's motion to reopen is DENIED.

DATE:

3/:J.//_5"

D.D. Sitgraves
Immigration Judge

CERTIFICATE OF SERVICE

THIS DOCUMENT WAS SERVED BY: MAIL (M) PERSONAL SERVACE (P)
lien's ATT/REP (\frDHS
T () LIEN () ALIEN c/o Custod

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DATE:
BY: COURT STAFF
Attachments: ()EOIR 33
1/J
\0 \

\S

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immigration judge. 8 C.F.R. 1 003.23(b)(l)(iv). The Board of Immigration Appeals has stated
that "the power to reopen on our own motion is not meant to be used 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. 97 6, 984 (BIA 1 997). Proceedings should be reopened
sua sponte only under "exceptional" situations. Id. Moreover, because finality is a key
objective, the threshold for sua sponte reopening is extremely high. See Matter of 0-, 19 l&N
Dec. 871, 87 1 (BIA 1989).

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