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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Bijev, Hristo Kostadinov OHS/ICE Office of Chief Counsel - HLG
Bijev Law Firm 1717 Zoy Street
1330 L Street, Ste. B Harlingen, TX 78552
Fresno, CA 93721

Name: RAMIREZ-DIAZ, DIEGO NORBE .. A 208-898-351

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.
Neal, David L

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: D-N-R-D-, AXXX XXX 351 (BIA Sept. 29, 2017)
:.

U.S." Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: A208 898 351 - Harlingen, TX Date:

In re: Diego Norberto RAMIREZ-DIAZ

SEP 2 9 2017

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Hristo Kostadinov Bijev, Esquire

APPLICATION: Reopeg

This case is presently before us pursuant to an order of the United States Court of Appeals for
the Fifth Circuit granting a joint motion to remand. In particular, the joint motion to remand sought
further consideration of whether reopening and rescission of the July 21, 2016, in absentia order
of removal is warranted on the basis of lack of notice. See section 240(b)(5)(C)(ii) of the
Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5)(C)(ii) (2017). These proceedings will
be reopened, the in absentia order will be rescinded, and the record will be remanded to the
Immigration Judge for further proceedings.

The following facts are not in dispute. The respondent, a native and citizen of El Salvador,
was personally served with a Notice to Appear (Form 1-862) on March 15, 2016 (IJ at 1, Aug. 24,
2016; Exh. 1). The respondent was ordered removed in absentia after not appearing at a scheduled
hearing on July 21, 2016. See section 240(b)(5)(A) of the Act. The Immigration Court mailed
hearing notices to advise the respondent of this hearing while he was detained and, upon release,
to the address of his adult sponsor. The respondent filed a motion to reopen with the
Immigration Court on August 4, 2016, claiming that he did not have notice of the July 21, 2016,
hearing because he did not receive the aforementioned hearing notices. See section 240(b)(5)(C)(ii)
of the Act. The Immigration Judge denied this motion in a decision dated August 24, 2016, which
we affirmed in our prior decision on December 27, 2016.

In our prior decision, we agreed with the Immigration Judge that it was unlikely that the
respondent did not receive any of the hearing notices. Upon further review, we conclude that we
placed too much weight on this one factor without considering additional, circumstantial evidence.
While we recognize that two separate hearing notices were mailed following the respondent's
release from detention, these hearing notices were mailed simultaneously on the same date, rather
than on separate occasions (see Notices of Hearing, May 26, 2016).

Other evidence of record also supports the respondent's claim of non-receipt. See Hernandez
v.Lynch, 825 F.3d 266, 270 (5th Cir. 2016) (providing that the Board and Immigration Judges
must "address other record evidence that might have weighed in favor of [an alien's] claim that he
did not receive notice"). First, the respondent has exercised diligence in pursuing his rights. The
respondent first learned of the in absentia order on July 28, 2016, when he received a
Notice to Removable Alien (Form 1-166) in the mail (Mot. to Reopen, Tabs A & B). The
respondent contacted an attorney that same day, and the underlying motion to reopen was filed

Cite as: D-N-R-D-, AXXX XXX 351 (BIA Sept. 29, 2017)
A208 898 351

roughly 1 week later on August 4, 2016 (Mot. to Reopen, Tab B). See Matter ofM-R-A-, 24 I&N
Dec. 665, 676 (BIA 2008) ("[W]e consider a significant factor to be the respondent's due diligence
in promptly seeking to redress the situation by obtaining counsel and requesting reopening of the
proceedings."); accord Hernandez v. Lynch, 825 F.3d at 271 (providing that when evaluating a
claim of lack of notice, it is proper to consider an alien's "explanation as to how and when he
learned of his immigration troubles and the actions he took to resolve them"). Secondly, the

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respondent had an incentive to appear at the prior hearing as evidenced by his interest in pursuing
a claim for asylum (Form 1-213 at 3, Exh. 2; Mot. to Reopen, Tab B). See Matter of M-R-A-,
24 I&N Dec. at 674 (providing that an alien's incentive to appear at a hearing is circumstantial
evidence supporting a claim of lack of notice).

For these reasons, we conclude that these removal proceedings should be reopened.
Accordingly, the following orders will be entered.

ORDER: This Board's December 27, 2016, decision is vacated.

FURTHER ORDER: The respondent's appeal is sustained.

FURTHER 0RDER: The July 21, 2016, in absentia order is rescinded, this matter is reopened,
and the record is remanded to the Immigration Court for further proceedings.

Cite as: D-N-R-D-, AXXX XXX 351 (BIA Sept. 29, 2017)