U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Virgrma 22041

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Chu, William, Esq. OHS/ICE Office of Chief Counsel - ATL
The Law Offices of William Chu 180 Ted Turner Dr., SW, Ste 332
4455 LBJ Freeway, Suite 1008 Atlanta, GA 30303
Dallas, TX 75244

Name: KIM, YEON HEE A 098-871-094

Date of this notice: 9/21/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Kelly, Edward F.

Usertea m: Docket

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Cite as: Yeon Hee Kim, A098 871 094 (BIA Sept. 21, 2017)
i.J.S Dpartment of Justice Decision of the Board of Immigration Appeals
Executive Office for Imm igration Review

Falls Church, Virginia 2204 l

File: A098 871 094 -Atlanta, GA Date:

212817
In re: YEON HEE KIM a.k.a. Y eon Hee Choi

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: William Chu, Esquire

ON BEHALF OF OHS: Antonio E. Veal

Assistant Chief Counsel

APPLICATION: Reopening

The respondent, a native and citizen of South Korea, was ordered removed from the United
States in absentia on July 17, 2008, after not appearing at a hearing. She filed a motion to reopen
on May 17, 2016, and appeals from the Immigration Judge's decision dated March 6, 2017,
denying her motion. The appeal will be sustained.

We review Immigration Judges' 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)(i), (ii).

On appeal, the respondent argues that she was not properly served with the Notice to Appear,
which contains the required advisals. See section 239(a)( l ) of the Immigration and Nationality,
8 U.S.C. 1229(a)( l ); Matter ofG-Y-R-, 23 l&N Dec. 181(BIA 2001) (requiring that an alien be
informed of the statutory address obligations associated with removal proceedings and of the
consequences of not providing a current address). The Department of Homeland Security (OHS),
on January 25, 2008, mailed the charging document to the respondent at the address provided on
her September 16, 2005, application for adjustment of status (Form 1-485). She states that the
preparer of the application incorrectly stated that she was living in Georgia because she was
actually residing in New York. However, the respondent's signature appears on the Form 1-485,
and she did not provide documentation, which corroborates her allegation.

We have held that an in absentia order can only be entered when the record reflects that an
alien either received or can be charged with receiving the Notice to Appear informing the alien of
the address obligations under section 239(a)( l )(F) of the Act. See Matter ofG-Y-R-, supra. The
OHS mailed the Notice to Appear to the respondent's last known address, which we will presume
was correct in 2005. However, the OHS mailed the document more than two years later, and we
cannot presume that the respondent was still living at the 2005 address at the time of mailing.
Hence, the record fails to establish whether the respondent actually received or can be charged
with receiving the Notice to Appear which contains the required advisals. These proceedings will
therefore be reopened based on lack of no!ice.

Cite as: Yeon Hee Kim, A098 871 094 (BIA Sept. 21, 2017)
098 871 094

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER Order: The order of removal entered in absentia is vacated, and these proceedings

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are reopened and remanded for further proceedings consistent with the foregoing opinion.

Cite as: Yeon Hee Kim, A098 871 094 (BIA Sept. 21, 2017)
 \
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA

IN THE MATTER OF: ) In Removal Proceedings

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)
KIM, Yeon Hee ) File No. A# 098-871-094
)
Respondent )
------- )

CHARGE: Section 237(a)( l )(B) of the Act, as amended, in that after admission as a
nonimmigrant under section l0l(a)( l 5) of the Act, Respondent remained
in the United States for a time longer than permitted, in violation of the
Act or any other law of the United States.

APPLICATION: Motion to Reopen In Absentia Order of Removal

APPEARANCES

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE GOVERNMENT:

William Chu, Esq. Assistant Chief Counsel
Law Office of William Cu Department of Homeland Security
4455 LBJ Freeway, Suite 1008 1 8 0 Ted Turner Dr. SW, Suite 332
Dallas, Texas 75244 Atlanta, Georgia 30303

DECISION OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

Yeon Hee Kim ("Respondent") is an adult female native and citizen of South Korea. She
entered the United States at Newark, New Jersey on or about August 4, 1998 as a nonimmigrant
B-1 temporary visitor for pleasure with authorization to remain in the United States for a
temporary period not to exceed November 1, 1998. Respondent remained in the United States
beyond that date without authorization from the former Immigration and Naturalization Service
("INS").

On January 22, 2008, the Department of Homeland Security ("Department") issued

Respondent a Notice to Appear ("NTA") charging Respondent as removable under section
237(a)( l)(B) of the Act, as amended, in that after admission as a nonimmigrant under section
10l(a)(l5) of the Act, Respondent remained in the United States for a time longer than
permitted, in violation of the Act or any other law of the United States. See NTA.

On January 25, 2008, Respondent was served through the mail to the address listed on her
previous 1-48 5 Adjustment of Status Application filed with the INS. Id.

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On May 12, 2008, the Court sent a Notice of Hearing in Removal Proceedings ("Notice of
Hearing") to the address of record. She was scheduled to appear before an Immigration Judge at
the Atlanta Immigration Court on July 17, 2008.

On July 17, 2008, Respondent failed to appear before the Court and was ordered removed to
South Korea in absentia on that date.

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On May 17, 2016, Respondent filed a Motion to Reopen In Absentia Order of Removal
("Motion to Reopen") with the Court.

On May 19, 2016, the Department filed an Opposition to the Respondent's Motion to
Reopen.

The Court has carefully reviewed the entire record before it. All evidence has been
considered, even if not specifically discussed further in this decision. For the reasons set forth
below, the Court will deny Respondent's Motion to Reopen.

II. STATEMENT OF LAW

Only one motion to reopen may be filed by the alien. 8 C.F.R. 1003.23(b)(4)(ii). Generally,
motions to reopen for the purpose of rescinding an in absentia removal order must be filed
within I80 days after the date of the removal order, and the respondent must demonstrate that the
failure to appear was due to exceptional circumstances. See INA 240(b)(5)(C)(i); 8 C.F.R.
1003.23(b)(4)(ii). However, motions to reopen for the purpose of rescinding an in absentia
removal order may be filed at any time, including after the I80-day deadline, if the alien argues
that she did not receive notice of the hearing or asserts that she was in Federal or State custody
and the failure to appear was through no fault of her own. See INA 240(b)(5)(C)(ii); 8 C.F.R.
1003.23(b)(4)(ii). All motions to reopen must "be supported by affidavits and other evidentiary
material." 8 C.F.R. 1003.23(b)(3).

When a Notice of Hearing is sent to an alien by regular mail, properly addressed, and mailed
according to normal office procedures, there is a presumption that the alien received proper
notice. Matter of M-R-A-, 24 l&N Dec. 665, 673 (BIA 2008). However, the presumption of
notice is weaker when the notice is sent by regular mail, as opposed to certified mail. Id.; Qi Hu
Sun v. U.S. Atty. Gen., 543 Fed.Appx. 987, 989 (1 Ith Cir. 2013) (unpublished and cited for
persuasiveness).

The Code of Federal Regulations also grants an Immigration Judge sua sponte authority to
reopen, at any time, any case in which he has made a decision. See 8 C.F.R. 1003.23(b). The
Board has explained that exercising sua sponte authority is an "extraordinary remedy reserved
for truly exceptional situations." Matter of G-D-, 22 l&N Dec. I 132, 1134 (BIA 1999) (citing
Matter of J-J-, 21 I&N Dec. 976 (BIA 1997)).

Finally, the Supreme Court has held that "motions to reopen are disfavored" and "[t]here is a
strong public interest in bringing litigation to a close as promptly as is consistent with the interest
in giving the adversaries a fair opportunity to develop and present their respective cases." See
INS v. Abudu, 485 U.S. 94, 107 (1988). "This is especially true in a deportation proceeding,
where, as a general matter, every delay works to the advantage of the deportable alien who

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wishes merely to remain in the United States." INS v. Doherty, 502 U.S. 314, 323 (1992)
(internal citations omitted).

Ill. DISCUSSION

The Court will first note that, although the Department alleges that Respondent had a
previous Motion to Reopen, the Court finds no record of this. See Department's Opposition at 3.

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Therefore, Respondent's Motion to Reopen is not number barred.

An Immigration Judge may consider various factors to determine whether a respondent has
rebutted the weaker presumption of delivery when notice is sent via regular mail, including, but
not limited to, the following: (1) affidavits from the alien and other individuals with knowledge
of facts relevant to receipt of notice; (2) whether the alien exercised due diligence upon learning
of the in absentia removal order; (3) any prior applications for immigration relief that would
indicate an incentive to appear at the removal hearing; (4) the alien's attendance at earlier
immigration hearings; and (5) any other circumstances indicating possible nonreceipt of notice.
Markova v. U.S. Atty. Gen., 537 Fed.Appx. 871, 874 ( l l th Cir. 2013) (unpublished and cited for
persuasiveness); Matter of M-R-A-, 24 I&N Dec. at 674. After considering the evidence
presented by Respondent and the factors described above, the Court finds Respondent has failed
to overcome the presumption of proper notice.

In the present case, Respondent claims that she is the victim of fraud by a non
attomey/acquaintance, Mr. Moon, who filed an adjustment of status application on her behalf
and listed a false address. See Motion to Reopen, "Exh. A" at 2-3. This address was then used as
the address of record and therefore, Respondent never received her NTA or her Notice of
Hearing. However, the Court finds that notice was proper. See 1-485 Application, dated Sept. 27,
2005. Respondent signed the I-485 application which listed the allegedly false address. Id.
Respondent does not claim that her signature on the application is not hers. Although
Respondent claims she has not been able to locate Mr. Moon, there is no evidence of his
existence. There is also no evidence of the girlfriend of Mr. Moon who introduced him to
Respondent. No one is listed as the preparer on Respondent's 1-485 Application. See 1-485
Application, dated Sept. 27, 2005. For these reasons, the Court finds that Respondent had proper
notice of her hearing.

The Court may sua sponte reopen a case over which it has jurisdiction at any time. 8 C.F.R.
l003.23(b)(l); see also Matter of J-J-, 21 l&N Dec. 976. However, such power should only be
exercised in cases of "exceptional situations." Id. at 984. The respondent has the burden to show
that an exceptional situation exists. Matter of Beckford, 22 l&N Dec. 1216, 1218-19 (BIA 2000).
Moreover, the power to reopen a case sua sponte is not meant to be used as a general cure for
..

filing defects or to otherwise circumvent the regulations, where enforcing may result in
hardship." Matter of J-J-, 21 l&N Dec. at 984. As a general matter, the Court "invokes [its] sua
sponte authority sparingly, treating it not as a general remedy for any hardships created by
enforcement of the time and number limits in the motions regulations, but as an extraordinary
remedy reserved for truly exceptional situations." Matter of G-D-, 22 l&N Dec. 1132, 1133-34
(BIA 1999) (citing Matter of J-J-, supra). Finally, the Eleventh Circuit has held that the Board's
discretion to reopen proceedings sua sponte is exceptionally broad and not subject to judicial
review. Lenis v. U.S. Atty. Gen., 525 F.3d 1291, 1293 (11th Cir. 2008).

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. .

The Court is not convinced that exceptional circumstances have been established in the
present case. As mentioned above, Respondent signed the application listing the false address.
Furthermore, Respondent did not exercise due diligence. She admitted to having knowledge of
her order of removal in 2009 when her I-767 Application was denied. See Motion to Reopen,
"Exh. A" at 3.However, she did not file her Motion to Reopen until 2016.

Furthermore, Respondent claims that she is eligible for an 1-130 and adjustment of status. See

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Motion to Reopen at 13. However, Respondent has not submitted an approved 1-130 or
evidence that 1-130 petition has been filed. Matter of S-V-, 22 I&N Dec. 1306, 1307 (BIA
an

2000) (citing Abudu, 485 U.S. at 94) (A motion to reopen will be denied unless the respondent
establishes a prima facie case of eligibility for the underlying relief sought). She has also failed
to attach an application for the relief sought. See 8 C.F.R. 1003.23(b)(3) (stating that a motion to
reopen for the purpose of acting on an application for relief must be accompanied by the
appropriate application and all supporting documents). For the foregoing reasons, the Court
denies Respondent's Motion to Reopen.

In light of the foregoing, the Court will enter the following order:

ORDER OF THE IMMIGRATION JUDGE

It is ordered that: Respondent's Motion to Reopen is hereby

DENIED.

-.....

:
J. an Pelletier
d igration Judge
Atlanta, Georgia
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