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

Rivas, Andres R., Esq. Andres Rivas, P.A. P.0. Box 227294 Miami, FL 33222

OHS/I CE Office of Chief C ounsel 333 South Miami Ave., Suite 200 Miami, FL 33130

MIA

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Name: ESCAMILLA, JAVIER

A 076-534-101

Date of this notice: 6/25/2013

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

DcnrtL Cwvu
Donna Carr Chief Clerk

Enclosure
Panel Members: Hoffman, Sharon Manuel, Elise Guendelsberger, John

yungc Userteam: Docket

Cite as: Javier Escamilla, A076 534 101 (BIA June 25, 2013)

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U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A076 534 101 -Miami, FL

Date:

JUN 2 5 2013

In re: JAVIER ESCAMILLA

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Andres R. Rivas, Esquire

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Shana Belyeu Assistant ChiefCounsel

APPLICATION: Reopening

The respondent has appealed from the hnmigration Judge's decision dated January 14, 2013. The Immigration Judge denied the respondent's motion to reopen proceedings in which he was ordered removed in absentia on February 24, 1998. The Department ofHomeland Security (DHS) opposes the appeal. The respondent's appeal will be sustained. The Board reviews an Immigration Judge's findings of fact, including findings as to the credibility oftestimony, 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 ofImmigration Judges de novo. 8 C.F.R. 1003.l(d)(3)(ii). Upon de novo review, we find that the respondent was not provided proper written notice ofhis hearing. The Notice to Appear (NTA) served upon the respondent on November 20, 1997, provides a hearing date of February 24, 1997 (Exh. 1). While the hnmigration Judge noted that the hearing date was "scrivener's error which should have read February 24, 1998," the fact

See

remains that the respondent was not provided proper written notice of the correct hearing date.

section 239(a)(l)(G) of the hnmigration and Nationality Act, 8 U.S.C. 1229(a)(l)(G) 1 (requiring that the alien be provided written notice ofthe time and place ofproceedings). Under these circumstances, we will sustain the appeal, reopen the respondent's removal proceedings, and allow the respondent another opportunity to appear for a hearing. Accordingly, the following orders will be entered. ORDER: The respondent's appeal is sustained, the proceedings are reopened.

1 On appeal, the respondent notes that on the NTA "1997 is overwritten by hand to read, what
appears to be 1998, but is realistically unclear." Respondent's Appeal Brief, page 2. However, the NTA in the record reflects a February 24, 1997, hearing date.

Cite as: Javier Escamilla, A076 534 101 (BIA June 25, 2013)

A076 534 101

FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and the entry of a new decision.

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Javier Escamilla, A076 534 101 (BIA June 25, 2013)

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT MIAMI, FLORIDA
In The Matter of

Javier Escamilla A 076 534 101 Respondent

)IN REMOVAL PROCEEDINGS

) ) )

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ORDER ON MOTION TO REOPEN On November 13, 2012 respondent, through counsel, filed a motion to reopen. The Department of Homeland Security ("OHS") had not yet filed a response motion. The Court has now received the record of proceedings ("ROP"). Respondent was placed in removal proceedings with the issuance of a Notice to Appear (''NTA") which indicates personal service on respondent on November 20, 1997 and it was filed with the Court on January 20, 1998. The NTA also contains the advisals to respondent of his need to provide the Court with notice of changes of address and it also informs about the consequences of failing to appear. In addition, the NTA contains a Certificate of Service wherein the Special Agent states that respondent was informed, in Spanish, of the time and date of the hearing and of the consequences ef failing to appear. The contains respondent's signature and fingerprint showing personal service and it instructs respondent to appear for his first Immigration Court hearing on February 24, 1997 at 9:00 AM.1 Respondent failed to appear on February 24, 1998 so the Court proceeded in absentia and a copy of the in absentia order was mailed to respondent at the address last furnished by respondent. The in absentia order was not returned to the Court.
th A claims is made that the hearing notice was for 155 South Miami Avenue, 8 Floor, Miami,

Florida 33130 (hereinafter "155") but that the hearing was conducted at 333 South Miami Avenue, Miami, Florida 33130 (hereinafter "333"). This assertion is incorrect as the Court did not move to 333 until April/May, 2004. The hearing was, in fact, conducted at 155.

1The Court finds the February 24, 1997 date to be a scrivener's error which should have read February 24, 1998 as the NTA was issued November 20, 1997.

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A claim is made that respondent did not receive proper notice of the hearing. Counsel's motion indicates English was the only language spoken at the time but the NTA clearly shows that respondent was given full information in the Spanish language when he was served the NTA. Further, the NTA filed with the Court indicates that respondent was furnished oral and written notice that his hearing was to be conducted at 155 South Miami Avenue, 8th Floor, Miami, Florida. The NTA indicates that hearing date of February 24, 1997; however, respondent, at the time the NTA was issued, was thirty one (31) years old and it is illogical and incredible for him to claim that he did not understand the date to be February 24, 1998 since he was given all advisals in Spanish. Further, respondent was provided the list of legal service providers and he could have availed himself of counsel. If respondent was confused about the date, he could have called the Court to clarify the hearing date and/or he could have availed himself of the legal service providers to clarify the hearing date. Respondenfs affidavit claims English was the only language spoken when the NTA was served. The Form 1-213, Record of Deportable/Inadmissible Alien, states respondent obtained a fraudulent 1-551 from an unidentified individual; the Form 1-213 also states that respondent claimed to have entered without inspection near San Ysidro, California and it accurately contains personal identification information relating to respondent. The Court will accept the certification of the Special Agent who served the NTA, said certification stating that all advisals were provided to respondent in the Spanish language. An NTA had been personally served on respondent and, under the circumstances presented, he can not merely claims that he did not understand anything because everything was conducted in the English language. The Court finds that all evidence indicates respondent was an adult who was aware of the processes and the nature of the proceedings initiated against him as all information was provided to him in the Spanish language. Nothing has been tendered by respondent showing that he thereafter took diligent steps to assure he appeared before the Immigration Court and nothing was tiled showing diligent steps to seek legal advise. Pursuant to 8 CFR 1003.23(b)( l ) a motion to reopen must be filed within 90 days of the entry of a final administrative order of removal but can be filed at later if a claim is made that there was no notice. The Court finds the motion is untimely. The party seeking reopening bears a heavy burden because motions for reopening are disfavored. See Matter of Coehlo, 20 I & N Dec.464 (BIA 1992). The Court finds it significant, and distinguishing, that respondent was personally served the NTA and that he was orally informed of the consequences of failing to appear; it is also significant that respondent provided an address of 1736 Collins Avenue, Miami Beach, Florida 33139 to DHS and that address was used by the Court in sending respondent his copy of the in absentia order.
In the case at hand, however, it is significant that respondent did nothing for over fourteen (14)

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years, until his recent motion to reopen. The Court finds insufficient the bare-bone request that

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respondent's proceedings be reopened as respondent now desires adjust status based on his recent marriage to a US citizen. There is no indication that respondent previously contacted the Immigration Court in 1997 or 1998 to determine the status of respondent's proceedings.. There is no indication that respondent previously contacted a lawyer or a legal service provider for assistance in this matter. In the case at hand, respondent did absolutely nothing for over fourteen years, until his motion to reopen. The Court finds the motion to reopen unpersuasive.

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The Court finds the advisals given to respondent in the NTA, and orally when served the NTA, distinguishes respondent's case from the circumstances in Matter of Anyelo, 25 I & n Dec. 337 (BIA 2010). To find otherwise would be contrary to the Real ID Act, the implication of the advisals on the NTA, and Dominguez v. U.S. Att'y Gen. 284 F.3d 1258 (11th Cir, 2002 ). For all the above stated reasons, and after considering all of the testimony and documentary evidence of record, the following order will be entered:

ORDER

Accordingly, for the above stated reasons, respondent's motion to reopen is hereby DENIED. Accordingly, for the above stated reasons, respondent's motion for stay is hereby DENIED

Dated: January 14, 2013

Immigration udge

CERTIFICATE OF SERVICE

Copies sent on the

Respondent;

/k_

day of January, 2013 to:

Respondent's Co

unsY

istrict Counsel

Legal Assistant, Immigration Court