U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike. Suite 2000

Falls Church. Vtrgm1a 22041

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Chavez, Nicolas OHS/ICE Office of Chief Counsel - SNA
Chavez & Valko, LLP 8940 Fourwinds Drive, 5th Floor
10830 N. Central Expressway San Antonio, TX 78239
Suite 400
Dallas, TX 75231

Name: MATEHUALA-GRIMALDO, DAVID A 028-889-405

Date of this notice: 4/26/2017

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:
Neal, David L
Grant, Edward R.
Mann, Ana

Usertea m: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: David Matehuala-Grimaldo, A028 889 405 (BIA April 26, 2017)
 U.S. Department of Justice Decision of the Board oflmmigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A028 889 405 - San Antonio, TX Date:

In re: DAVID MATEHUALA-GRIMALDO APR 2 6 2017

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IN DEPORTATION PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Nicolas Chavez, Esquire

APPLICATION: Reopening; remand

The respondent, a native and citizen of Mexico, appeals the Immigration Judge's May 27,
2016, decision denying his motion to reopen his proceedings, which had been conducted in
absentia on January 16, 1990. The Department of Homeland Security ("OHS") has not replied to
the appeal. The appeal will be sustained, the in absentia order will be rescinded, the proceedings
will be reopened, and the record will be remanded.

Initially, we note that these in absentia deportation proceedings are governed by former
section 242(b) of the Act, 8 U.S.C. 1252(b), because service of the hearing notice in the instant
matter occurred prior to June 13, 1992. See Matter of Gonzalez-Lopez, 20 I&N Dec. 644 (BIA
1993).

We have considered the totality of the circumstances presented in this case, including the
respondent's brother's sworn affidavit accompanying the motion to reopen alleging non-receipt
of the hearing notice (which was mailed to the respondent's brother's home), the respondent's
brother's former wife's sworn affidavit submitted on appeal corroborating the respondent's
brother's allegation of non-receipt, and the absence of opposition by the OHS to both the appeal
and the motion, and find that there is sufficient evidence to establish that the respondent did not
receive proper notice of his January 16, 1990, hearing and that reopening and rescission of his in
absentia order of deportation is therefore warranted. Accordingly, we will sustain the appeal,
grant the motion, rescind the in absentia order, reopen the proceedings, and remand the record
for the Immigration Judge to allow the respondent another opportunity to appear for his hearing.
Accordingly, the following order shall be entered.

ORDER: The respondent's appeal is sustaine the Immigration Judge's January 16, 1990, in
absentia order of deportation is rescinded, and the " cord is remanded to the Inunigration Judge
for further proceedings.

Board Member Ana Mann respectfully dissents without opinion.

Cite as: David Matehuala-Grimaldo, A028 889 405 (BIA April 26, 2017)
 ,

..

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

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

Chavez & Valko, LLP
Chavez, Nicolas
10830 N. Central Expressway
Suite 400
Dallas, TX 75231

IN THE MATTER OF FILE A 028-889-405 DATE: May 27, 2016

MATEHUALA-GRIMALDO, DAVID

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE.

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
THIS DECISION

WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
888 'fll8 8H9J..OSEQ FORMS AND INSTRUCTIONS FOR PROPERLY PBEPneTNG yqup 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 DECISION OF THE IMMIGRATION JUDGE AS THE RESULT

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(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
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

HER:

CC: OHS / ASSISTANT CHIEF COUNSEL

co llid2
IMMIGRATION COURT FF

8940 FOURWINDS DR. Room 5045

SAN ANTONIO, TX, 78239
 ( (

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

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

IN THE MATIER OF )
)
MATEHUALA-GRIMALDO, DAVID ) Case No. A028-889-405
)
RESPONDENT )
)
IN DEPORTATION PROCEEDINGS )

CHARGE: Fonner section 24l(a)(2) of the Immigration and Nationality Act (the Act):
Alien who entered the United States without inspection.

APPLICATION: 8 C.F.R. 1003.23(b): Motion to Reopen.

ONBEHALF OF THE RESPONDENT ONBEHALF OF THE GOVERNMENT

Nicolas Chavez, Esq. U.S. Immigration & Customs Enforcement
Chavez & Valko, LLP Office of the Chief Counsel
10830 N. Central Expwy., Ste. 400 8940 Fourwinds Dr., 5th Fl.
Dallas, TX 75231 San Antonio, TX 78239

WRITTEN DECISION & ORDER OF THE IMMIGRATION JUDGE

I. Procedural History

The respondent is a forty-six-year-old male, native and citizen of Mexico, who entered the

United States at or near Eagle Pass, Texas, on or about September 16, 1989. On September 17,

1989, the Immigration and Naturalization Service (INS), now the Department of Homeland

Security (DHS), personally served the respondent with an Order to Show Cause and Notice of

Hearing (the OSC), charging him as deportable pursuant to former section 24l(a)(2) of the

Immigration and Nationality Act (the Act), as an alien who entered the United States without
1
inspection. On December 14, 1989, the Court sent a notice of hearing to the respondent at the

1 After the initial deportation order was entered in this matter, section 241 of the Immigration and Nationality Act was
redesignated as section 237 by section 305(a)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-598 ( 1996). The redesignated provision is now
codified with modifications as section 1227 of title 8, United States Code.

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following address: Rt. 1 Box 18, Celina TX 75009.

On January 16, 1990, the respondent was not present for his hearing and was unavailable

for examination under oath. Accordingly, the Court proceeded in absentia and ordered the

respondent removed from the United States to Mexico on the charge contained in the Order.

On February 26, 2016, the respondent filed with the Court a motion to reopen his

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deportation proceedings. DHS has not filed a response in opposition to the motion.

II. Motion to Reopen

An in absentia order of deportation may be rescinded only upon a motion to reopen filed

within 180 days after the date of the order of deportation if the alien demonstrates that the failure

to appear was because of exceptional circumstances beyond the control of the alien, or at any time

if the alien demonstrates that he did not receive notice or that he was in federal or state custody

and the failure to appear was through no fault of his own. 8 C.F.R. 1003.23(b)(4)(iii).

In the present case, the respondent contends that although he received personal service of

the Order to Show Cause (the OSC), there was reasonable cause for his failure to appear as the

OSC "did not contain the time and date of his future hearing" and the record appears to be "devoid

of any evidence that [he] was notified of his hearing." Respondent's Motion to Reopen at 4. The

record of proceedings, however, contains a copy of a notice of hearing addressed to the respondent

at the address he provided on his Notification Requirement for Change of Address form, and the

Immigration Judge found that notice was provided.

The respondent argues, however, that "[e]ven assuming that the NOH was mailed to the

[his] last known address, he has adduced sufficient evidence to rebut any presumption of proper

delivery," namely in the form of an affidavit from his brother, Diego Matehuala, with whom he

resided after his release from detention. Id. at 5. In his affidavit, Diego avers that he and his wife

"were the only persons in [their] household to check the mail" and that they never received any

notice of the respondent's hearing in the mail. Id. at 12, Tab B. Diego admits, however, that they

did receive the respondent's deportation order. Id.

The Court finds that the respondent has not, as he claims, rebutted the presumption of

proper delivery of his notice of hearing where he has failed to provide an affidavit from his

brother's wife, who, according to the respondent's brother, also lived at the address in Celina,

Texas, at the time of the respondent's deportation proceedings and may have received the

respondent's notice of hearing. Id. Given that the deportation order was received at that address,

the Court finds that the respondent has failed to establish that his notice of hearing was not

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received at its intended destination by a responsible party. Accordingly, the respondent has failed

to establish that his failure to appear for his deportation hearing was through no fault of his own,

and the Court will not rescind the respondent's in absentia deportation order or reopen his

deportation proceedings. See 8 C.F.R. 1003.23(b)(4)(iii).

Accordingly, the following order is hereby entered:

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ORDER

IT IS HEREBY ORDERED that the respondent's motion to reopen is DENIED.

Glenn P. McPhaul
United States Immigration Judge

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