U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 22041

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Salter, Erika Nicole OHS/ICE Office of Chief Counsel - DAL
Law Office of Erika N. Salter, P.C. 125 E. John Carpenter Fwy, Ste. 500
5601 Bridge St., Suite 300 Irving, TX 75062-2324
Fort Worth, TX 76112

Name: EVERLASTICO SOTELO, JOSE ... A 206-425-188

Date of this notice: 6/12/2017

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

Sincerely,

/) h .J }
I

'---

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
Grant, Edward R.
Mann, Ana

Usertea m: Docket

For more unpublished BIA decisions, visit

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Cite as: Jose Luis Everastico-Sotelo (BIA June 12, 2017)

U.S. Department of Justice Decision of the Board oflmrnigration Appeals
Executive Office for Immigration Review

Falls ChW"Ch, Virginia 22041

File: A206 425 188 - Dallas, TX Date:

JUN 1 2 2017
In re: JOSE LUIS EVERASTICO-SOTELO

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Erika N. Salter, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of Mexico, was ordered removed in absentia on
March 7, 2016. On August 4, 2016, the Department of Homeland Security and the respondent
filed a joint motion to reopen proceedings, which the Immigration Judge denied on October 13,
2016. The respondent filed a timely appeal of that decision. The appeal will be sustained,
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). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from
decisions of Immigration Judges de novo. 8 C.F.R. 1003.1 (d)(3)(ii).

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 sections
240(b )(5)(C)(i), (e )(l) of the Imm igration 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.

=l.f FOR THE BOARD

1 Among other factors, we have considered the respondent's attorney's mistake, the respondent's
affidavit, as well as the fact that the original motion was jointly submitted with the Department of
Homeland Security in order to allow the respondent to pursue pre-conclusion voluntary departure.
See Matter o/Yewondwosen, 21 I & N Dec. 1025, 1028 (BIA 1997).

Cite as: Jose Luis Everastico-Sotelo (BIA June 12, 2017)

 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS

IN THE MATTER OF: )

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) IN REMOVAL PROCEEDINGS
EVERASTICO-SOTELO, Jose Luis )
) A 206-425-188
RESPONDENT )

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

Act), as amended, in that you are an alien present in the United States
without being admitted or paroled, or who arrived in the United States at
any time or place other than as designated by the Attorney General.

APPLICATION: Joint Motion to Reopen In Absentia Removal Proceedings

ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT

OF HOMELAND SECURITY:
Erika N. Salter, Esq. Judson Davis, Esq.
Law Office of Erika N. Salter Office of Chief Counsel
1140 Empire Central Place, Suite 106C 125 E. John Carpenter Freeway, Suite 500
DaJJas, TX 75247 Irving, TX 75062

WRITTEN DECISION OF THE IMMIGRATION JUDGE

This matter is before the Court pursuant to an August 4, 2016 Joint Motion to Reopen In
Absentia Removal Proceedings. Respondent's counsel claims that through a clerical error,
neither Respondent nor the firm was aware of Respondent's March 7, 2016 hearing in which he
failed to appear. For the reasons set forth below, the Court will DENY Respondent's Motion.

If the alien does not attend a scheduled removal hearing after written notice has been
provided to the alien or the alien's counsel of record, the alien will be ordered removed in
absentia if the Government establishes by clear, unequivocal, and convincing evidence that
written notice of the hearing was provided and that the alien is removable. INA 240(b)(5)(A).
Adequate notice can be accomplished through personal service, or if personal service is not
practicable, through service by mail to the alien. INA 239(a)( l ). Service by mail is proper upon
proof of attempted delivery to the alien's most recently provided address. INA 239(c).
The in absentia order may be rescinded upon a motion to reopen filed at any time if the alien can
demonstrate that he did not receive adequate notice of the hearing. INA 240(b)(S)(C)(ii); 8
C.F.R. 1003.23(b)(4)(iii)(2). When written notice is properly addressed and sent to the alien by
regular mail according to normal office procedures, a presumption of delivery arises. Matter of
M-RA-, 24 I&N Dec. 665, 673 (BIA 2008).

1
 Within five clays of any change of address, an alien in removal proceedings must
complete and file a change of address form (Form EOIR-33) with the immigration court. 8
C.F.R. 1003.15(d)(2). The Notice to Appear (NTA) informs the alien of his obligation to
immediately provide a written record of any change in address or telephone number and the
consequences of failing to do so. See INA 239(a)(l)(F). The NTA also includes the
consequences for failing to appear at a scheduled hearing. See INA 239(a)(l)(G).

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However, an alien's failure to receive actual notice of a removal hearing due to neglect of
his obligation to keep the immigration court apprised of his current mailing address does not
entitle the alien to rescission of his removal order. Gomez v. Holder, 560 F.3d 354, 360-61 (5th
Cir. 2009); Matter of M-R-A-, 24 I&N Dec. at 675. No written notice is required if a respondent
fails to provide an address he or she can be contacted at as required under INA 239(a)(l)(F)
and reflected in the NTA. See INA 240(b)(5)(B).

In this case, the Court finds that Respondent is not entitled to rescission of his in absentia
order because he failed to file a change of address form with the Court and he was not entitled to
notice. See Gomez, 560 F.3d at 360-61; Matter of M-R-A-, 24 l&N Dec. at 67; INA
240(b)(5)(B). Although Respondent's counsel attributes the lack of notice to her office's
failure to properly track Respondent's A-number and for failure to file an E-28 Notice of
Appearance, the Court finds that Respondent ultimately failed to abide by his obligations in the
NTA. On January 6, 2014 Respondent was personally served with his NT A as evidenced by his
signature, and he was advised in the Spanish language. See Ex. 1. Thus, Respondent had proper
notice of his obligation to file a change of address with the Court.

Also, on May 12, 2014, the Court confirmed Respondent's mailing address as "1919
Walnut Plaza, Apt. 102, Carrollton, TX 75006." Although Respondent's August 18, 2014
hearing date was reset, on October 19, 2015, the Court mailed Respondent a notice of hearing
(NOH) to his last provided address to inform him about his March 7, 2016 hearing. This notice
was not returned to the Court. Based on counsel's representation, Respondent changed addresses
at some point before the Court mailed the NOH. It is not clear if counsel was responsible for
filing a change of address on Respondent's behalf. Thus, the Court finds that Respondent failed
in his obligation to provide an address where he could be contacted, he was not entitled to notice
of his hearing, and is not entitled to rescission of his in absentia order.

Additionally, it is well established that statements by the Respondent's counsel contained

in the motion to reopen are not evidence, and if unaccompanied by other evidence, do not carry
Respondent's burden of proof. See Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980).
Absent an explanation by the Respondent, either through an affidavit or other statement, that
would connect his pending motion to his failure to appear, the Court finds that the Respondent
has not met his burden.

Finally, the Court declines to exercise its sua sponte authority to reopen as this case does
not present a "truly exceptional situation." Matter ofG-D-, 22 I&N Dec. 1132 (BIA 1999);
Matter of J-J-, 21 l&N Dec. 976 (BIA 1997). Accordingly, the following order is entered:

ORDER

2
 l J

IT IS HEREBY ORDERED that Respondent and the DHS's Joint Moti

Absentia Removal Proceedings is DENIED.

Date: this .!Jth day of October, 2016

Dallas, Texas

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