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Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
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Cynthia L. Crosby
Acting Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Mann, Ana
Userteam: Docket
Cite as: Juan Garcia-Garcia, A087 175 395 (BIA April 18, 2017)
.. . U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
APPEAL
APPLICATION: Reopening
The respondent has appealed the Immigration Judge's September 20, 2016, decision denying
his motion to reopen his removal proceedings after the issuance of an in absentia order of
removal. The respondent's appeal, which is opposed by the Department of Homeland Security,
will be sustained, and the record will be remanded for further proceedings.
We review an Immigration Judge's findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. 1003.l(d)(3).
The record reflects that the Notice to Appear (NTA) was sent to the respondent by certified
mail on April 21, 2010 (Exh. 1). The NTA informed the respondent that he had to appear at an
unscheduled hearing to be held at the Harlingen Immigration Court in Texas (Exh. 1). A hearing
notice was sent to the respondent on April 30, 2010, by regular mail informing him that he was
scheduled for a hearing at the Harlingen Immigration Court on November 2, 2010. As the
respondent did not appear for his hearing on November 2, 2010, the Immigration Judge ordered
him removed in absentia.
On August 15, 2016, the respondent filed a motion to reopen. The Immigration Judge noted
that the respondent had not rebutted the weaker presumption of delivery of the hearing notice
sent to him by the Immigration Court for his November 2, 2010, hearing, where the respondent
had submitted a letter with his motion to reopen stating that he did not receive the hearing notice
for that date or the in absentia order of removal (I.J. at 2). See Matter of M-R-A-, 24 I&N Dec.
665, 673-75 (BIA 2008). Specifically, in deeming the respondent's letter insufficient to
demonstrate non-receipt, the Immigration Judge noted that the respondent "did not challenge the
accuracy of the address" used by the Immigration Court to mail him the hearing notice (I.J. at 2).
On appeal, the respondent contends that he did not receive proper notice in accordance with
section 239(a) of the Immigration and Nationality Act, 8 U.S.C. 1229(a), and that he has met
the evidentiary standard set forth in Matter of M-R-A-, supra. See Respondent's Brief at 4-5.
We find that this case is governed by our decision in Matter of G-Y-R-, 23 I&N Dec. 181 (BIA
2001). In that case, we held that entry of an in absentia order of removal is inappropriate where
the record reflects that the alien did not receive, or could not be charged with receiving, the
Cite as: Juan Garcia-Garcia, A087 175 395 (BIA April 18, 2017)
A087 175 395
Notice to Appear that was served by mail at an address obtained from documents filed with the
Department of Homeland Security several years earlier.
In the instant case, the respondent's Form 1-213 dated October 23, 2009, lists the address to
which the respondent's Notice to Appear and the hearing notice were sent (Exh. 2). The Form 1-
213 also indicates that the respondent's Form 1-485 and a Form 1-130 filed on his behalf were
ORDER: The appeal is sustained, the in absentia order of removal is rescinded, the
proceedings are reopened, and the record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.
1
We note that the NTA was served by certified mail, return receipt requested. However, the
record does not contain a return receipt card showing that the NTA was received by the
respondent.
2
Cite as: Juan Garcia-Garcia, A087 175 395 (BIA April 18, 2017)
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J/_ ATTACHEDIS 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 MAILING OF THI WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY 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 :1 f
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT t'
IMMIGRATION COURT
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550
OTHER:
tdtrRT CLERK
IMMIGRATION COURT FF
CC: ASSISTANT CHIEF COUNSEL
1717 ZOY ST.
HARLINGEN, TX, 785520000
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
HARLINGEN IMMIGRATION COURT-
HARLINGEN, TEXAS "'\
The record reflects that the respondent was served via certified mail with the Notice to
Appear on April 21, 2010. INA 239(a)(l). The Court mailed the respondent a hearing notice
on April 30, 2010 to the address listed on the Notice to Appear. The record does not contain
evidence that this notice was returned as undeliverable. This constituted proper notice to the
respondent of his November 2, 2010 removal hearing. Section 239(a)(2)(A) of the Act; 8 C.F.R.
1003.18(b); 8 C.F.R. 1003.26(c) and (d). It is noted that the Court's Decision containing the
removal order was mailed to the respondent at that same address on November 2, 2010 and it
was not returned to the Court by the United States Postal Service as undeliverable.
In his affidavit submitted in support of the motion to reopen, the respondent asserts that
he was never aware that he was in removal proceedings.
In Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008), the Board of Immigration Appeals
held that where a hearing notice is properly addressed and sent by regular mail according to
normal office procedures, there is a presumption of delivery, but it is weaker than the
presumption applied to delivery by certified mail. The Court must consider all relevant evidence
in determining whether this weaker presumption of delivery has been rebutted, which includes
both circumstantial and corroborating evidence. In Matter of M-R-A-, supra, at 674, the Board
set forth some examples of factors that can be considered in making this determination, but
emphasized that these are just examples of the types of evidence that can support a motion to
reopen. See also Matter ofC-R-C-, 24 l&N Dec. 677 (BIA 2008).
The Court finds that the respondent has not overcome the presumption of delivery
attached to delivery by regular mail set forth in Matter of M-R-A-. The Court mailed a notice
informing the respondent that his hearing had been scheduled for November 2, 2010. INA
239(a)(l). This notice was addressed and mailed according to normal office procedures to the
The respondent also seeks reopening in order to apply for adjustment of status. The
respondent's motion to reopen is accompanied by evidentiary materials demonstrating that the
respondent is the beneficiary of an approved visa petition filed by his United States citizen wife.
Although a motion to reopen can be based upon a pending or approved 1-130 petition, certain
requirements must be met, including that the motion must be timely. See Matter of Velarde
Pacheco, 23 I&N Dec. 253, 256 (BIA 2002). Here, the motion was filed well after the ninety
day period in which a motion to reopen must be filed. See 8 C.F.R. 1003.23(b)(l). As such, the
respondent's removal proceedings should not be reopened on this basis.
Finally, the Court concludes the circumstances of this case do not warrant the exercise of
the Court's limited discretion to reopen sua sponte. See Matter of J-J, 21 l&N Dec. 976 (BIA
1997). The fact that an alien has become potentially eligible for some form of relief from
removal due to the passage of time, without more, is not ordinarily sufficient to warrant
reopening sua sponte. See Matter ofYauri, 25 I&N Dec. 103 (BIA 2009).
X----=--
ORDER: The respondent's motion to reopen is DENIED.
David Ayala
United States lmtlnrgJ'atltOfl
CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAI PERSONAL SERVIC
TO: ( ) ALIE_N ALIEN C/O CUSTODIAN LIEN'S T /REP
DATE: l -o,'J.t)fb BY: COURT STAF
ATTACHMENTS: ( ) EOIR-33 ( ) EOIR-28 ( ) L GAL E VICES LIST ff OTHER
APPEAL FORMS
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