U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

Lazare, Shirley, Esq. Frenkel, Hershkowitz & Shafran LLP 16 East 34th Street, 16th Floor New York, NY 10016

OHS/ICE Office of Chief Counsel DAL 125 E. John Carpenter Fwy, Ste. 500 Irving, TX 75062-2324

Immigrant & Refugee Appellate Center | www.irac.net

Name: ROSS, CAROLINE REBECCA

A 087-202743

Date of this notice: 6/20/2013

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

DonrtL c11/LA)
Donna Carr Chief Clerk

Enclosure
Panel Members: Adkins-Blanch, Charles K. Grant, Edward R. Hoffman, Sharon

Trane Userteam: Docket

Cite as: Caroline Rebecca Ross, A087 202 743 (BIA June 20, 2013)

U.S. Department of Justice Executive Office for Inunigration Review

Decision of the Board of Inunigration Appeals

File:
In re:

A087 202 743-Dallas, TX CAROLINE REBECCA ROSS

Date:

JUN .2 0 2013

IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: APPLICATION: Reopening Shirley Lazare, Esquire

The hnmigration Judge denied the respondent's motion to reopen because she failed to establish exceptional circumstances for her failure to appear at the February 17, 2010, hearing. However, upon review, we will sustain the appeal and reopen proceedings. The respondent did not receive the oral warnings when she was served with the Notice to Appear by certified mail. Accordingly, the bar to discretionary relief set forth in section

240(b)(7) of the Immigration and Nationality Act, 8 U.S.C. 1229a(b)(7), does not apply and the rescission standards do not need to be met to reopen proceedings in order to pursue one of the

specified forms of relief.

See Matter of M-S-,

22 I&N Dec. 349 (BIA 1998).

Moreover, any

issue of untimeliness is cured because the motion to reopen proceedings was agreed upon by the parties and jointly filed (MTR, Exh. H). 8 C.F.R. 1003.23(b)(4)(iv).
In view of the parties'

agreement, reopening of the proceedings is warranted.

See Matter of Yewondwosen, 21 I&N Dec.

1025, 1026 (BIA 1997) (discussing the important role the parties play in the proceedings and noting that "their agreement on an issue or proper course of action should, in most instances, be determinative"). Accordingly, we will change venue and allow the respondent another opportunity to appear for a hearing in order to pursue adjustment of status. ORDER: The appeal is sustained, the in absentia order is rescinded, the proceedings are

reopened, and the record is remanded to the Immigration Judge for further proceedings. FURTHER ORDER: Venue is changed to New York, New York.

Cite as: Caroline Rebecca Ross, A087 202 743 (BIA June 20, 2013)

..

'5 .
..

"'

.1'2.

UNITED STATES DEPARTMENT IMMIGRATION COURT 1100 COMMERCE ST., DALLAS, TX

OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW ROOM 404

75242

FRENKEL, LAZARE,

HERSHKOWITZ SHIRLEY STREET, 10016

& SHAFRAN,
16TH FLOOR

LLP

16 EAST 34TH NEW YORK,

Immigrant & Refugee Appellate Center | www.irac.net

NY

IN THE MATTER OF ROSS, CAROLINE REBECCA

FILE A 087-202-743

DATE:

Feb 15,

2012

UNABLE TO FORWARD

NO ADDRESS PROVIDED DECISION OF THE IMMIGRATION JUDGE. BOARD OF PROPERLY THIS DECISION

ATTACHED IS A COPY OF THE

IS FINAL UNLESS AN APPEAL IS FILED WITH THE SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR YOUR NOTICE OF APPEAL, MUST BE MAILED TO: ATTACHED DOCUMENTS, OFFICE OF THE CLERK P.O. BOX 8530 FALLS CHURCH, VA

IMMIGRATION APPEALS THIS WRITTEN DECISION. PREPARING YOUR APPEAL.

ITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF

AND FEE OR FEE WAIVER REQUEST

BOARD OF IMMIGRATION APPEALS

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 WITH SECTION 8 u.s.c. SECTION REMOVAL HEARING. 8 U.S.C. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6), SECTION 1229a(c)(6) IN REMOVAL PROCEEDINGS. YOUR MOTION MUST BE FILED WITH THIS COURT: IMMIGRATION COURT 1100 COMMERCE ST., DALLAS, OTHER: TX 75242 ROOM 404 IF YOU FILE A MOTION

TO REOPEN,

FF CC: HUNKER, 125 E. IRVING, PAUL HWY 114, TX, STE 500 75062

.....

:.. . - : ._,

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT DALLAS, TEXAS IN THE MATTER OF:

) ) )

IN REMOVAL PROCEEDINGS

ROSS, Caroline Rebecca

Immigrant & Refugee Appellate Center | www.irac.net

)
)

)
RESPONDENT
CHARGE:

) Section 237(a)(l)(B) of the Immigration and Nationality Act, as amended, in that after admission as a nonimmigrant under 101(a)(15) of the Act, you have remained in the United States longer than permitted, in violation of this Act or any other law of the United States

APPLICATION:

Motion to Reopen In Absentia Order and Reopen Proceedings

ON BEHALF OF THE RESPONDENT

ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY

Shirley Lazare, Esq. Frenkel, Herskkowitz & Shafran, LLP lh 16 East 34 Street New York, NY 10016

Paul B. Hunker Ill, Esq. Chief Counsel - ICE 125 E. John Carpenter Fwy., Ste. 500 Irving, TX 75062

ORDER OF THE COURT

The Respondent has filed a Motion to Reopen in the above-captioned case. For
the following reasons, the Motion will be DENIED.

FACTUAL AND PROCEDURAL IDSTORY

The Respondent is a female, native and citizen of Liberia. Notice to Appear. She entered the United States on or about June 20, 2006 as a nonimmigrant visitor with authorization to remain in the United States for a temporary period not to exceed 1 December 7, 2006.

Immigrant & Refugee Appellate Center | www.irac.net

Id. She remained in the United States beyond December 7, 2006

without authorization from the Immigration the Department of Homeland Security (DHS or Government).

Id.

On August 25, 2006 the DHS served the Respondent with a Notice to Appear (NTA) via certified mail, return receipt requested, charging her with removability under Section 237(a)(l)(B) of the Immigration and Nationality Act ( INA or the Act). Notice to Appear. The NTA was mailed to the Respondent's address in Marshall, Texas.

Id.

On December 29, 2009 the Respondent filed a Notice to EOIR: Alien Address th (Form I-830) listing her new address as: 121-47 238 Street, Rosedale, NY 11422. Form I-830. That same day she also filed a Motion to Change Venue from the Dallas Immigration Court to the New York Immigration Court, and a Motion for Telephonic Master Hearing in the alternative. Respondent's Motion to Change Venue, dated December 23, 2009. In the Respondent's Motion to Change Venue, her counsel

admitted all of the allegations in the NTA and conceded the charge of removability.

Id.

Immigration Judge Rogers denied the Motion to Change Venue on January 4, 2010, but did hold that the Respondent's attorney would be able to appear telephonically. Order of the Immigration Judge, January 4, 2010.
1 On June 15, 2007 the Respondent was granted an extension of her nonimmigrant visa by USCIS until December 7, 2007. Respondent's Motion to Change Venue, dated December 23, 2009, Tab A (Fonn I-

797).

Both the Respondent and her counsel conceded that the Respondent's Master Calendar Hearing was scheduled for February 17, 2010. Respondent's Motion to Change Venue, dated December 23, 2009; Respondent's Motion to Reopen an and Motion to Change Venue, dated May 23, 2011. On February 17, 2010 the Respondent failed to appear at her hearing thus the proceedings were conducted

In Absentia

Order

Immigrant & Refugee Appellate Center | www.irac.net

in absentia.

At the hearing, the Government submitted

documentary evidence establishing the truth of the factual allegations contained in the NTA. Order of the Immigration Judge, dated February 17, 2010. The Court found the Respondent removable as charged by clear, unequivocal, and convincing evidence.

See

C.F.R. 1003.26(c). Accordingly, the Court designated the Respondent's country of removal as Liberia, and ordered her removed to Liberia At some point after the

in absentia. Id.

in absentia order was

entered, the Respondent filed an 1-

485 based upon an approved 1-130 petition filed on her behalf by her USC mother. Respondent's Motion to Reopen, Tab G. On March 10, 2011, the DHS agreed to and signed a Stipulation to Reopen Removal Proceedings drafted by the Respondent. Respondent's Motion to Reopen, Tab H. Respondent's counsel signed the agreement on March 17, 2011.

Id.

The

Government, pursuant to 8 C.F.R. 3.2(c)(3)(iii), agreed to the case being reopened so that the Respondent might avail herself of Adjustment of Status pursuant to the approved 1-130 petition filed on her behalf. Id. On March 10, 2011, the DHS filed a Non-Opposition Motion for Change of Venue.

Id.,

Tab L

The DHS stated that it did not oppose the Respondent's Motion to

Change Venue because of the Respondent's medical condition and financial resources.

Id.
On May 23, 2011, the Respondent, through counsel, filed a Motion to Reopen. In the Motion, the Respondent states that she moved to New York to live with her sister and await further surgeries for a craniofacial disorder from which she suffers. Motion to

Immigrant & Refugee Appellate Center | www.irac.net

Reopen, Respondent's Affidavit. She also stated that when she learned of the denial of her Motion to Change Venue, she was unable to travel back to Texas for her hearing due to financial inability and her dependence upon others for her care.
LEGAL STANDARDS An

Id.

in absentia removal order pursuant to section

240(b)(5) of the Act may be

rescinded upon a Motion to Reopen if there is a violation of the respondent's constitutional right to adequate notice. In such a case, the alien may file a motion to reopen at any time and the court may rescind an

in absentia removal order if the "alien

demonstrates that the alien did not receive adequate notice in accordance with the [notice requirements of the INA]." INA 240(b)(5)(C)(ii); 8 C.F.R. 1003.23(b)(4)(iii). A Motion to Reopen will not be granted unless the Respondent establishes a

prima f acie case

of eligibility for the underlying relief. A motion to reopen must be

accompanied by applications for relief and all supporting documents. 485 U.S. 94, 104 (1988);

See INS v. Abudu, but see Matter of

see also INS v. Doherty, 502

U.S. 314 (1992);

Ruiz, 20 I&N

Dec. 91, 92 (BIA 1989).2 In general, an immigration judge has broad

motion to reopen is that the immigration judge held an in absentia hearing, the alien must establish that he has reasonable cause for his absence from the proceedings. Section 242(b) ofthe Act, 8 U.S.C. 1252(b) (1982) (deportation proceedings); Matter ofHaim, supra; Matter ofNafi, supra; Matter ofPatel, Interim

"A motion to reopen may be denied on the basis that the applicant has not established a prima facie case for the underlying substantive relief sought. See INS v. Abudu, 485 U.S. 94, I 08 S.Ct. 904 (1988). But in the context ofa prior in absentia hearing, the underlying relief being sought by way of the motion to reopen is the opportunity to present the applications for reliefat a full evidentiary hearing .... When the basis for a

authority to grant or deny a motion to reopen.

INS v. Doherty, 502 US 314, 322 (1992).

An immigration judge may deny a motion even where there is prima facie eligibility if

the relief sought would be denied as a matter of discretion. 444, 449 (1985). Finally, the Court may exercise its

INS v. Rios-Pineda, 4 71 US

sua sponte authority to reopen in "truly Malter of G-D-,

Immigrant & Refugee Appellate Center | www.irac.net

exceptional situations," where the interests of justice would be served. 22 I. & N. Dec. 1132, 1133 (BJ.A. 1999); 1997);

Malter ofJ-J-, 21

I. & N. Dec. 976 (BJ.A.

see also Matter ofX-G-W-, 22 I.

& N. Dec. 71, 74 (BJ.A. 1998) (finding

exceptional circumstances met where a fundamental change in asylum law). Proper service of a written notice under the Act may be accomplished by personal service, or if personal service is not practicable, service by regular mail to the alien or to his attorney of record. INA 239(a)( l). Proper notice can be accomplished through

personal service of the document (the NTA or the NOH), or if personal service is not practicable, through service by mail to the Respondent. INA 239(a)( l ). Additionally, service by mail of the document is sufficient if there is proof of attempted delivery to the alien's most recently provided address. INA 239(c). When the written notice is properly addressed and sent to the alien by regular mail according to normal office procedures there is also a presumption of delivery.

Malter of

M-R-A-,

24 I. & N. Dec. 665, 673 (BJ.A. 2008). However, the regular mail presumption

is weaker than the presumption applying to documents sent by certified mail.

Id.; See

Decision 2993 (BIA 1985), aff'd, Patel v. INS, 803 F.2d 804 (5th Cir.1986); Matter ofMarallag, 13 I & N Dec. 775 (BIA 1971). Once reasonable cause has been established, the applicant retains his statutory right to an opportunity to present his asylum claim at a hearing. To require him to establish prima facie eligibility for asylum in conjunction with his motion to reopen, before he is given the opportunity to a hearing on his asylum claim, would violate his statutory right to such a hearing." Matter ofRuiz 20 I. & N. Dec. 91, 9293 (BIA 1989).

Matter ofGrijalva,

21 I. & N. Dec. 27, 37 (BJ.A. 1995). When alleging non-receipt of a

written notice, the burden is on the alien to provide proof that the document was not received.

Matter of M-R-A,

24 I. & N. Dec. at 673-74;

see also Matter of Ramirez

Sanchez,

17 I. & N. Dec. 503 (BJ.A. 1980) (when alleging non-receipt of an NTA, the

alien must provide some evidence to the court that the NTA was not in fact received). In

Immigrant & Refugee Appellate Center | www.irac.net

adjudicating an alien's motion to rescind an

in absentia

order of removal based on a

claim that a NTA or NOH sent by regular mail to the most recent address was not received, all relevant evidence submitted to rebut the weaker presumption of delivery must be considered by the Immigration Judge. 74. If the alien's address is not provided, or is incorrectly provided in the NTA, the alien must provide to the Court a written notice of an address and telephone number at which the alien can be contacted within five days of service of the NTA 8 C.F.R. 1003.IS(d)(l ). This requirement is satisfied by completing and filing a Change of Address Form (EOIR-33).

Matter ofM-R-A,

241. & N. Dec. at 673-

Id.

In addition, within five days of any change of address,

the alien must complete and file with the Court a Change of Address Form. 8 C.F.R. 1003.15(d)(2). Thus, if the alien fails to file a Change of Address Form when required, and this is the reason he has not received proper notice of a scheduled hearing, then lack of notice cannot be the basis for granting a motion to reopen. N. Dec. at 675. The NTA includes the alien's obligation to immediately provide the Attorney General with written record of any change in address or telephone number and the consequences for failing to do so, and also includes the consequences for failing to

Matter ofM-R-A-,

24 I. &

appear.

See

INA 239(a)( l )(F), (a)( l )(G). The Notice of Hearing, whether contained in

the charging document or as a separate notice, states the time and place of the scheduled hearing and informs the alien of the consequences for failing to update his address and for failing to appear. INA 239(a)( l )(G), (a)(2)(A)(ii). In addition to an alien's statutory obligation under INA 239(a)(l )(F) to update his address after moving, an alien also has the general obligation to report address changes to the Attorney General under INA 265(a). All aliens residing in the United States must notify the Attorney General in writing of each change of address within ten days of the alien's move. INA 265(a).
ANALYSIS

Immigrant & Refugee Appellate Center | www.irac.net

At the outset of the analysis, the Court recognizes the Joint Motion to Reopen signed by the DHS and the Respondent, via counsel. This Joint Motion removes both the time limit imposed on a proper motion to reopen and the fee requirement. 8 C.F.R. 1003.2(c)(3)(iii); 8 C.F.R. 1003.24(b)( l )(vii). As such, the Respondent's motion was timely and did not require a fee. In the present case, the Respondent was served with an NTA via certified mail warning her of the consequences for failing to appear in Court. Under the Act, service via certified mail is a proper method sufficient for the Court to find that the Respondent was given adequate notice.

See INA

239(a)( l );

Matter o/Grijalva,

21 I. & N. Dec. at

3 7. Both the Respondent and her attorney conceded notice of the hearing date in February 2010. See Respondent's Motion to Change Venue, Lawyer's Affidavit; Respondent's Motion to Reopen, Respondent's Affidavit. While the Respondent filed an

EOIR-33 with her New York address to the Court, merely showing the Court that she had

moved out of state did not guarantee her a change of venue or alter her obligation to appear in the Dallas Immigration Court for her hearing. The Immigration Judge explicitly denied her Motion to Change Venue and infonned her of this decision therefore obligating her to appear at the

Dallas Immigration Court on February 17, 2010. See

Order of the Immigration Judge, dated January 4, 2010.

Immigrant & Refugee Appellate Center | www.irac.net

Further, the Respondent's failure to appear was not based upon exceptional circumstances. See Matter ofG-D-, 22 I. & N. Dec. at 1133. While she did present evidence of her medical condition, she also explicitly stated that her failure to appear in Court was due to fi nancial hardship-not her medical condition. See Respondent's Motion to Reopen, Respondent's Affidavit. Financial hardship does not warrant exceptional circumstances. Accordingly, the following Order will be entered:

'1 . I

ORDER IT IS HEREBY ORDERED that the Respondent's Motion to Reopen is DENIED.

This 30th day of January, 2012

Immigrant & Refugee Appellate Center | www.irac.net

Deitrich H. Sims United States Immigration Judge