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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Leschak, John P ., Esq. OHS/ICE Office of Chief Counsel - HLG
Leschak & Associates, LLC 1717 Zoy Street
180 South Street Harlingen, TX 78552
Freehold, NJ 07728

Name: NUNEZ-ZEPEDA, JORDAN OMAR A 097-315-824

Date of this notice: 9/29/2017

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:
Greer, Anne J.
Kelly, Edward F.
Kendall Clark, Molly

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Jordan Omar Nunez-Zepeda, A097 315 824 (BIA Sept. 29, 2017)
 u,s. Department of Justice Decision of the Board of Immigration Appeals
. '
Executive Office for Immigration Review

'Falls Church, Virginia 22041

File: A097 315 824 - Harlingen, TX Date:

SEP 2 9 2017
In re: Jordan Omar NUNEZ-Zepeda

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: John P. Leschak, Esquire

ON BEHALF OF OHS: Kristen Hitchner

Assistant Chief Counsel

APPLICATION: Reopening

The respondent has filed an appeal from the Immigration Judge's May 15, 2017, decision
denying the respondent's motion to reopen and rescind the respondent's in absentia order dated
March 9, 2004. The Department of Homeland Security opposes the appeal. The appeal will be
sustained and proceedings will be terminated.

We review an Immigration Judge's findings of fact, including credibility findings, to determine

whether they are clearly erroneous. 8 C.F.R. 1003.l(d)(3)(i) (2017). We review de novo all
questions of law, discretion, and judgment. 8 C.F.R. 1003.l(d)(3)(ii).

Aliens who were ordered removed in absentia and who move to reopen based on lack of notice
of their hearing may move to reopen at any time. See 8 C.F.R. 1003.23(b)(4)(ii). The
respondent's motion was based on a claim that he did not receive proper service of the Form I-862
Notice to Appear (NTA) and did not receive notice of his hearing.

The Immigration Judge determined that the respondent received proper notice of his removal
proceedings. The Immigration Judge further determined that after the respondent's NTA was
properly served, the respondent did not provide the Immigration Court with the require4 change
of address when the respondent moved to New Jersey and so the respondent was not entitled to
notice of his hearing.

The respondent was 7 years old when he arrived in the United States and was released to the
custody of a conservator at International Educational Services (IES). The NTA in his case was
served on the conservator at IES on September 15, 2003.1 The record does not show that the
document was served on anyone else. In denying the respondent's motion to reopen, the
Immigration Judge rejected the respondent's argument that service of the NTA was required to be
made on the respondent's mother, who took custody of the respondent on September 23, 2003.
The Immigration Judge considered that the respondent's mother was provided with various

1 There is a signature on the NTA but the name of the person is not legible.

Cite as: Jordan Omar Nunez-Zepeda, A097 315 824 (BIA Sept. 29, 2017)
. ( A097 315 824

documents stating the importance of reporting address changes and that the respondent did not
report his change of address before the notice of his hearing was mailed. Because the respondent
did not report his change of address, according to the Immigration Judge, notice of the hearing was
not required. 2

The regulation at 8 C.F.R. 103.8(c)(2)(ii) requires service of the NTA on a minor to be made

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upon the person with whom the minor resides if the minor is under 14 years of age. Furthermore,
the Board has held that the regulations require service on the parent or parents, if possible, when
it appears that the minor child will be residing with the child's parents in the United States.
Matter
of Mejia-Andino, 23 I&N Dec. 533, 536 (BIA 2002). There is no dispute in this matter that the
NTA was not served on the respondent's mother when she took custody of the respondent on
September 23, 2003, or any time thereafter. Nor does the record show that any attempt was made
to serve the respondent's mother with the NTA. We add that there was some confusion about
whether the respondent's mother was, in fact, his mother as opposed to his older sister, based on
documents in the record. However, given that the applicable regulation requires that service be
made whenever possible on the "near relative, guardian, committee, or friend," service on the
respondent's older sister would have likely sufficed in this case. See 8 C.F.R. 103.8(c)(2)(ii).3
Because there was no service of the NTA on the respondent's mother, who was living in the United
States, we conclude that service of the NTA was not proper.

In Matter of G-Y-R-, 23 I&N Dec. 181, 185 (BIA 2001), this Board determined that an
Immigration Judge is precluded from entering an in absentia order of removal if an alien has not
received the NT A advising him of his statutory obligation to provide contact information to
immigration officials. The Immigration and Nationality Act allows a hearing to be conducted in
absentia, but only when the alien has been provided written notice of the hearing at the most recent
address provided under section 239(a)(l)(F) of the Act. See section 240(b)(5)(A) of the Act,
8 U.S.C. 1229a(b)(5){A). As we explained in Matter of G-Y-R-, 23 I&N Dec. at 186-87, the
language of this provision requires that the address be one provided by the alien and "under section
239(a)(l)(F)" of the Act. See 8 U.S.C. 1229(a)(l)(F). The in absentia provisions in section
240(b)(5)(A) of the Act, when read in light of section 239(a)( l )(F) itself, mean that the alien cannot
provide a "section 239(a)(l)(F)" address unless the alien has been advised to do so.
See Matter of
G-Y-R-, 23 I&N Dec. at 187. Without proper service of the NTA, the respondent cannot provide
an address under section 239(a)( l )(F) of the Act or be required to submit a change of address for

2 Section 240(b)(5)(B) of the Act, 8 U.S.C. 1229a(b)(5)(B) eliminates the notice requirement
where the alien fails to provide required contact information. See Gomez-Palacios v. Holder, 560
F.3d 354 (5th Cir. 2009) (addressing situation where alien did not receive notice of his hearing
because he failed to comply with his obligation to provide the Immigration Court with current
address information after being served with his NTA); Matter ofM-R-A-, 24 I&N Dec. 665, 674-
75 (BIA 2008) (stating that an alien must comply with the statutory responsibility to provide
current address information).

3 The Board explained in Matter ofMejia-Andino, 23 I&N Dec. at 536, that service on a parent is
not required in all circumstances and that if no parent is residing in the United States, service on
another relative in this country may suffice.

Cite as: Jordan Omar Nunez-Zepeda, A097 315 824 (BIA Sept. 29, 2017)
' , .. AU97 315 824

purposes of the service of the notice of the hearing. Because the NTA in this case was not properly
served, the Immigration Judge should not have ordered the respondent removed in absentia.

We are also concerned that the order of removal appears to have been based on information in
the Form I-213 (Record of Deportable/Inadmissible Alien) (Exh. 2). It was clear by the time of
the hearing that the Form I-213 contained false information and was not reliable. According to

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information in the Form I-213, the respondent was travelling with an adult male who first claimed
to be the respondent's father. It was determined by the immigration officers at the Brownsville
Border Patrol station that the adult male was not the respondent's father, and the adult male then
claimed that he was a minister and that he and his wife ("Martha Hernandez") were the
respondent's caretakers. The adult male stated that the respondent's parents had abandoned the
respondent and so the couple raised the respondent as their own. The adult male stated that his
wife was in New Jersey and that he and the respondent were travelling to be with her. The Form
I-213 states that the respondent's mother was living in Honduras and that all biographical
information about the respondent "was obtained from the Guardian Martha Hernandez the
Childs'."

Given that Ms. Hernandez was allegedly in New Jersey, it is unclear how she was the source
of the information provided at the Brownsville Border Patrol station. In any event, by the time the
respondent's hearing took place, the respondent had been placed with IES and then transferred to
the custody of his mother, who was not living in Honduras. It was clear at the time of the hearing
that the Fonn I-213 did not contain reliable information. To the extent the Immigration Judge
relied on the Form I-213, that reliance was misguided. Yet, there appears to have been no other
document in the record at the time of the hearing to support removability.4 Thus, the record did
not contain clear, convincing, and unequivocal evidence that the respondent was subject to removal
as charged. See 8 C.F.R. 1003.26(c)(l).

Under the circumstances, we will terminate the respondent's proceedings without prejudice.

ORDER: The respondent's appeal is sustained and his motion to reopen is granted.

FURTHER ORDER: The Immigration Judge's orders are vacated, and the respondent's
proceedings are terminated without prejudice.

4 The Immigration Judge's decision does not specify what evidence was relied upon to support
the removal order.

Cite as: Jordan Omar Nunez-Zepeda, A097 315 824 (BIA Sept. 29, 2017)
..

..;a-/

..
......

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550

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Leschak & Associates, LLC
Leschak, John P
180 South Street
Freehold, NJ 07728

IN THE MATTER OF FILE A 097-315-824 DATE: May 16, 2017

NUNEZ-ZEPEDA, JORDAN OMAR

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION

.--...- AL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
--....,_..
..
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS 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
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 FILD 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
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550

OTHER:

CC: ASSISTANT CHIEF COUNSEL

1717 ZOY ST.
\
COUR
IMMI
CLE
=TION COURT FF

HARLINGEN, TX, 785520000

..
I
 ( (

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
HARLINGEN IMMIGRATION COURT

2009 WEST JEFFERSON AVENUE,SUITE 300
HARLINGEN,TEXAS

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

IN THE MATTER OF ) Ma ,2017
)
JORDAN OMAR NUNEZ-ZEPEDA ) Case Number: A097 315 824
)
)
RESPONDENT ) IN REMOVAL PROCEEDINGS

APPLICATION: Motion to Reopen

ON BEHALF OF THE RESPONDENT ON BEHALF OF THE GOVERNMENT

John P. Leschak,Esq. Kristen Hitchner,Assistant Chief Counsel
Leschak & Associates U.S. Department of Homeland Security
180 South Street 1717 Zoy Street
Freehold,NJ 07728 Harlingen,TX 78552

ORDER OF THE IMMIGRATION JUDGE

On March 9, 2004, the Court ordered the Respondent removed to Honduras in absentia
pursuant to section 240(b)(5)(A) of the Immigration and Nationality Act (INA or Act). On April
24, 2017, the Respondent, through counsel, filed a motion to reopen these proceedings arguing
that the Respondent did not receive proper notice of his removal hearing. The Respondent also
requests reopening in order to pursue an application for asylum, withholding of removal and
protection pursuant to the Convention Against Torture (CAT) as well as Special Immigrant
Juvenile Status. On May 2, 2017, the Department of Homeland Security (OHS) filed a timely
motion in opposition to Respondent's motion to reopen removal proceedings. The Respondent's
motion to reopen will be denied.

The record reflects that, because the Respondent was seven years old at the time and
travelling without a relative he was released into the custody of a conservator at the International
Educational Services (IES). (Exh. 2.) On September 15,2003,the IES conservator was personally
served with the Respondent's Notice to Appear (NTA). (Exh. I.); see also 8 C.F.R. 1236.2(a);
8 C.F.R. 103.8(c)(2)(ii); Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002); Matter of
Gomez-Gomez, 23 I&N Dec. 522,527-29 (BIA 2002). In removal proceedings written notice shall
be given in person to the alien,or if personal service is not practicable,through service by mail to
the alien or the alien's counsel of record. See INA 239(a)(l) of the Act. Although the statute
does not mention service on minors the corresponding regulation, 8 C.F.R. 236.2(a), provides
1
.
( (

that if an alien is a minor, under the age of fourteen, the NTA shall be served in the manner
prescribed in 8 C.F.R. 239.1 upon the person or persons specified in 8 C.F.R. 103.8(c). 8
C.F.R. 103.8(c)(2)(ii) states that in the "case of a minor under 14 years of age, service shall be
made upon the person with whom the ...minor resides; whenever possible, service shall also be
made on the near relative, guardian, committee, or friend." The Respondent's attorney challenges
the issue of notice due to the fact that the Respondent's mother was not personally served with the

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NT A. Since at the time of service the Respondent was under the age of fourteen the NTA was
properly served on the IES conservator. This was proper under the regulations as the Respondent
was residing with the IES conservator at the time. Therefore, the Court finds that the Respondent
was properly served with the NTA and will not reopen on this basis.

On September 23, 2003, the Respondent was released into the custody of his mother, Reyna
Isabel Zepeda Hernandez, pursuant to an Order of Release on Recognizance. See Notice to EOIR:
Alien Address (Form 1-830); (DHS Motion in Opposition, Tab E.) OHS has also submitted, with
the motion in opposition, a document entitled, "Notification Requirement for Change of Address"
which was signed by the Respondent's mother on September 23, 2003. (OHS Motion in
Opposition, Tab G.) OHS has also submitted a copy of Notice of Rights and Disposition (Form 1-
770) which was signed by the IES conservator on September 15, 2003. (OHS Motion in
Opposition, Tab D.) Additionally, OHS submitted a letter to the Respondent's mother from IES
stating the importance of reporting address changes and indicating that she was given the
Respondent's original documents from immigration regarding his court proceedings. (DHS
Motion in Opposition, Tab H.) Upon release the Respondent's mother provided the following
address on Form 1-830, "c/o Reyna Isabel Zepeda Hernandez, 3235 Iberville St. Apt. B, New
Orleans, LA 70 1 19." The Court mailed the Respondent a Notice of Hearing on October 3, 2003,
which informed the Respondent of his March 9, 2004 removal hearing in Harlingen, Texas to the
exact address listed on the Notice to EOIR: Alien Address. The Notice of Hearing was not returned
to the Court as undeliverable by the United States Postal Service.

The Respondent's attorney also challenges the issue of notice by stating that the
Respondent never received a hearing notice and he was not properly served with Form 1-770. The
Respondent, in his affidavit submitted with the motion to reopen, states that he was released to his
mother on September 23, 2003 and moved to New Orleans, LA. (Motion to Reopen, Exh. A.) The
Respondent also states that he eventually moved with his mom to Trenton, NJ where he has resided
ever since. (Motion to Reopen, Exh. A.)

The Court finds that the Respondent did not provide the Court with an address change,
when he moved to Trenton, New Jersey, as required by the regulations. See INA 239(a)(2)(B),
240(b)(5){B), 240(b)(5)(C)(ii); 8 C.F.R. 1003.15(d)( l ) ("If the alien's address is not provided
. .. or if the address on the . . . Notice to Appear is incorrect, the alien must provide to the
Immigration Court where the charging document has been filed, within five days of service of that
document, a written notice of an address and telephone number at which the alien can be
contacted."), 1003.15(d)(2) ("Within five days of any change of address, the alien must provide
written notice of the change of address."), 1003.23(b)(4)(ii). The United States Court of Appeals
for the Fifth Circuit has held that an alien's failure to receive actual notice of a removal hearing
due to neglecting his obligation to keep the immigration court apprised of his current mailing
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address does not mean that the alien did not receive notice and, therefore, a removal order should
not be rescinded under section 240(b)(5)(C)(ii) of the Act. See Lopez-Dubon v. Holder, 609 F.3d
642, 647 (5th Cir. 2010), cert. denied, 563 U.S. 960 (2011); Gomez-Palacios v. Holder, 560 F.3d
354, 360 (5th Cir. 2009 ) (an in absentia removal order should not be revoked on the grounds that
an alien failed to actually receive the required statutory notice of the hearing when it was due to
the alien's neglect of his or her obligation to keep the immigration court apprised of his or her

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current mailing address); Matter ofM-R-A-, 24 l&N Dec. 665, 674 (BIA 2008).

The Respondent or his mother has not shown or contended that they attempted to update
the Respondent's mailing address with the Court nor did the Respondent provide a timeline of
when he was living at each residence. Consequently, the Court was only required to send the
Notice of Hearing to the last known address on file, which was sent to, "c/o Reyna Isabel Zepeda
Hernandez, 3235 Iberville St. Apt. B, New Orleans, LA 70119" on October 3, 2003. The Court
finds that the Respondent was provided with proper notice of his March 9, 2004 removal hearing
because there is proof of attempted delivery to the last address provided by the Respondent. See
INA 239(a)(l )(F}, 239(c) (explaining that service by mail is sufficient proof of notice so long
as there is proof of attempted delivery to the last address provided by the alien}, 239(a)(2)(A); 8
C.F.R. 1003.IS(b}, 1003.26(c)-(d). The Court also finds that the Respondent was properly
served with Form I-770 through the IES conservator. Based on all of the above, the Court finds
that the Respondent did receive proper notice of his March 9, 2004 removal hearing in accordance
with INA 239(a)(2). Therefore, the Respondent's removal order will not be rescinded based on
lack of notice.

The Respondent also requests reopening in order to apply for asylum and related relief.
The motion is accompanied by an application for asylum and withholding of removal (Form 1-
589), as required by the regulations. See 8 C.F.R. 1003.23(b)(3); (Motion to Reopen, Exh. J.)
However, the Court finds that the Respondent's motion is untimely as it was not filed within ninety
days of the date of the final administrative order of removal. See INA 240(c)(7)(C)(i).
Additionally, the Court finds that the Respondent has not demonstrated, or even intimated, that his
application for asylum is based on changed country conditions in Honduras that would excuse the
untimeliness of the motion to reopen. See INA 240(c)(7)(C)(ii); 8 C.F.R. 1003.23(b)(4)(i).

To the extent the motion requests reopening in order to allow the Respondent to adjust his
status, based on purported eligibility for Special Immigrant Juvenile Status (SUS), the Court finds
the motion untimely and does not fall under any of the exceptions to the general 90-day filing
deadline. See INA 240(c)(7)(C). Further, the Respondent only alleges that he may be eligible
and has not provided any evidentiary material that indicates a petition was filed or approved by
the United States Citizenship and Immigration Services. See INS v. Abudu, 485 U.S. 94, 104
(1988) (holding that the Board may deny a motion to reopen where the movant "has not established
a prima facie case for the underlying substantive relief sought"); 8 C.F.R. 1003.23(b)(3).
Therefore, the Court concludes that the Respondent's removal order should not be rescinded under
this basis.

Finally, considering the circumstances of this case in their entirety, the Court concludes
the circumstances do not warrant the exercise of the Court's limited discretion to reopen sua
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sponte. See Matter of J-J-, 21 I&N Dec. 976 (BIA 1997) (holding the Board and Immigration
Judge's power to reopen or reconsider cases sua sponte is limited to exceptional circumstances
and is not meant to cure filing defects or circumvent regulations, where enforcing them might
result in hardship).

Accordingly, the following order shall be entered:

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ORDER: The Respondent's motion to reopen is DENIED.

DA/djc

\
David Ayala
United States Immigr

APPEAL FORMS