U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike. Sutte 2000

Falls Church, Vtrgmta 22041

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Fisher, Stefanie OHS/ICE Office of Chief Counsel - SNA
Araujo & Fisher LLC 8940 Fourwinds Drive, 5th Floor
101 Federal Street San Antonio, TX 78239
Suite 1900
Boston, MA 0211O

Name: MANSIA HERNANDEZ, ROSA A 201-103-160

Date of this notice: 5/9/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Mann, Ana
Adkins-Blanch, Charles K.
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Rosa Mansia Hernandez, A201 103 160 (BIA May 9, 2017)
U.S. Department of Justice Decision of the Board oflmrnigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A201 103 160 - San Antonio, TX Date:

AY - 9 2017
In re: ROSA MANSIA HERNANDEZ

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Stefanie Fisher, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of El Salvador who was ordered removed from the United
States in absentia on September 22, 2011, appeals from the Immigration Judge's written decision
dated April 6, 2016, denying her motion to reopen. The Department of Homeland Security
("OHS") has not filed a response to the respondent's appeal. The appeal will be sustained, the in
absentia order of removal will be vacated, proceedings will be reopened, and the record will be
remanded for further proceedings.

We review Immigration Judges' findings of fact for clear error, but questions of law, discretion,
and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R. 1003.l(d)(3)(i),
(ii).

Upon de novo review, and in light of the totality of the circumstances presented in this case,
including a December 14, 2015, affidavit from the respondent stating, under penalty of perjury,
that she never received notice of her September 22, 2011, hearing despite providing her correct
and true address to an immigration officer, who recorded her street name incorrectly, and that she
had no intention to avoid her hearing as she planned to file an application for asylum based on her
fear of future persecution in El Salvador; the documentary evidence corroborating that the
respondent's address was incorrectly recorded (Exh. 2; Respondent's Motion, Tab I) and that,
consequently, both the September 22, 2011, removal order and a prior (April 21, 2011) hearing
notice were returned as undeliverable by the United States Postal Service including, in the case of
the order, because "no such street" exists (Respondent's Motion, Tabs E and G; Exh. 4); and the
lack of opposition from the DHS to the respondent's appeal, we will sustain the appeal to afford
the respondent another opportunity to appear for a hearing before an Immigration Judge. See
Matter of M-R-A-, 24 l&N Dec. 665 (BIA 2008). Accordingly, the following order shall be
entered.

ORDER: The appeal is sustained, the Immigration Judge's September 22, 2011, in absentia
order of removal is vacated, proceedings are reopened, and the record is remanded to the
Immigration Judge for further proceedin s consistent with the foregoing.

Board Member Ana Mann respectfully dissents without opinion.

Cite as: Rosa Mansia Hernandez, A201 103 160 (BIA May 9, 2017)
 ,.
.,
(

UNITED STATES DEPARTMENT OF JUSTICE

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

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Barker, Epstein, Loscocco & McHaffey
Milano, Rosanne Teresa
10 Winthrop Sq.
2nd fl.
Boston, MA 02110

IN THE MATTER OF FILE A 201-103-160 DATE: Apr 8, 2016

MANSIA HERNANDEZ, ROSA

UNABLE TO FORWARD - NO ADDRESS PROVIDED

x ATTACHED 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.
..eBE 'fill!: l!iU9TsQSEQ mpm; i"ztlB IHe!'fR8CTI9tl!5 P9R FR8F8Rl5Y FRSFPtRIHe!I Y6"P: !IP!"b.
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

OTHER:

FF
CC: DISTRICT COUNSEL
8940 FOURWINDS DR., STH FLOOR
SAN ANTONIO, TX, 782971939
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

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IN THE MATTER OF )
)
MANSIA HERNANDEZ, ROSA ) Case No. A201-103-160
)
RESPONDENT )
)
IN REMOVAL PROCEEDINGS )

CHARGE: Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, as

amended: Immigrant not in possession of a valid entry document
required by the Act.

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

ON BEHALF OF THE RESPONDENT ONBEHALF OF THE GOVERNMENT

Rosanne T. Milano, Esq. U.S. Immigration & Customs Enforcement
Barker, Epstein & Loscocco Office of the Chief Counsel
10 Winthrop Square 8940 Fourwinds Dr., 5th Fl.
Boston, MA 02110 San Antonio, TX 78239

WRITTEN DECISION & ORDER OF THE IMMIGRATION JUDGE

I. Procedural History

The respondent is a thirty-nine-year-old female, native and citizen of El Salvador, who

entered the United States at or near Pharr, Texas, on March 1, 2011. Exhibit #1; Exhibit #6. On

March 23, 2011, the Department of Homeland Security (DHS) personally served the respondent

with a Notice to Appear (NTA), charging her as removable pursuant to section 212(a)(7)(A)(i)(I)

of the Immigration and Nationality Act (the Act), as amended, as an immigrant not in possession

of a valid entry document required by the Act. Exhibit # 1.

The NTA contains a section titled "Failure to appear" that specifies, inter a/ia, the
. .

consequences of failing to appear for any scheduled hearings. Id Th NTA reflects that the
1
p
respondent was advised of the consequences of non-appearance in the S anish language. Id.
l.' l . . .

l..t . . ,_ . A ' L G; . '

1
 /

On September 22, 2011, the respondent was not present for her hearing before this Court

and was unavailable for examination under oath. Pursuant to the authority provided in section

240(b)(5)(A) of the Act, the Court proceeded in absentia and ordered the respondent removed

from the United States to El Salvador on the charge contained in the NTA.

On February 9, 2016, the respondent filed a motion to reopen her removal proceedings.

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OHS has not filed a response in opposition to the motion.

II. Motion to Reopen

An in absentia order of removal may be rescinded only (i) upon a motion to reopen filed

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

appear was because of exceptional circumstances, or (ii) upon a motion to reopen filed at any

time if the alien demonstrates that he did not receive notice in accordance with paragraph (l) or

(2) of section 239(a) of the Act or the alien demonstrates that he was in Federal or State custody

and the failure to appear was through no fault of his own. Section 240(b)(5)(C) of the Act; 8

C.F.R. 1003.23(b)(4)(ii).

A. Exceptional Circumstances

Over four years passed between the date the Court ordered the respondent removed in

absentia and the date she filed her motion to reopen. Accordingly, any motion to reopen based

on exceptional circumstances is time-barred. See Section 240(b)(5)(C) of the Act; see also 8

C.F.R. l003.23(b)(4)(ii).

B. Notice

On March 23, 2011, immigration officials personally served the respondent with an NTA.

Exhibit #1. As required by section 239(a)(l) of the Act, the NTA advised the respondent of her

obligation to maintain a current mailing address with the Court and of the consequences of

failing to appear for any scheduled hearings. Id. The respondent was also orally advised of the

consequences of non-appearance in the Spanish language. Id. Despite this, she failed to provide

an address to the Court as required.

In her affidavit, the respondent claims that she advised immigration officials that she

would be living with her friend at 19 Sumner Street, Apartment #2, in Revere, Massachusetts.

Respondent's Motion to Reopen at 8, Tab A. The Notice to EOIR: Alien Address, however,

shows that she reported her address as 19 Summer Street. Exhibit #2. As the respondent puts it,

her friend had given her address "directly to the deportation officer, but somehow he recorded it

2
incorrectly." Respondent's Motion to Reopen at 2. It was on account of this error, the

respondent argues, that she failed to receive any notice of her removal hearing.

The record shows that, upon her release from immigration custody, the respondent was

provided an EOIR-33 and notified that she must inform the Immigration Court of any change of

address. Exhibit #2. The respondent's obligation to maintain a current mailing address with the

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Court and the consequences of failing to do so were also clearly stipulated in her NTA pursuant

to section 239(a)(l)(F). Exhibit #1. In short, even if the ICE official mistook the name of the

street where the respondent intended to reside, it was the respondent's obligation to provide the

Court with an address at which she could be reached. Notifying OHS does not fulfill her

statutory obligation to apprise the Immigration Court immediately of any change of address, as

expressly stated in the NTA. Id.

Because the respondent neglected an obligation of which she was notified in the NTA,

she cannot show that she failed to appear through no fault of her own, and failure to receive

notice of a scheduled hearing is not a ground for reopening removal proceedings in the present

case. See Gomez-Palacios v. Holder, 560 F.3d 354, 360-61 (5th Cir. 2009).

Accordingly, the following order shall be entered:

ORDER

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

Date: -A//l.'-l-=-'- t.. --

...... L---.
__ , 2016 1
Glenn P. McPhaul
United States Immigration Judge