U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5/07 leesb11rg Pike, S111te 2000 Falls Ch11rch. Virginia 22041

Desantiago, William CATHOLIC CHARITIES 1825 W est Northern Avenue Phoenix, AZ 85021-0000

OHS/ICE Office of Chief Counsel - PHO P .O.Box 25158 Phoenix, AZ 85002

Immigrant & Refugee Appellate Center | www.irac.net

Name: MONTES DE RODRIGUEZ, MARIA AURORA

A043-950-329

Dat e of this notice: 2111/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Adkins-Blanch, Charles K. Guendelsberger, John King, Carol

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Maria Aurora Montes de Rodriguez, A043 950 329 (BIA Feb. 11, 2011)

.u.s: Departmept of Justice

. Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A043 950 329 - Phoenix, AZ

Date:

FEB 11 2011

In re: MARIA AURORA MONTES DE RODRIGUEZ a.k.a. Maria Aurora Rodriguez IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF OHS: William DeSantiago, Esquire James Harmony Assistant Chief Counsel APPLICATION: Reopening

Immigrant & Refugee Appellate Center | www.irac.net

The respondent, a native and citizen of Mexico, was ordered removed in absentia on December 24, 2008. On October 22, 2009, the respondent filed a motion to reopen proceedings, which the Immigration Judge denied on January 4, 2010. The respondent filed a timely appeal of that decision. The appeal will be sustained, proceedings will be reopened and the record will be remanded. The Immigration Judge denied the respondent's motion to reopen finding that she had failed to establish that she did not receive proper notice for her December 24, 2008, hearing or establish exceptional circumstances to excuse her failure to appear. However, upon review, we find that in light of the totality of circumstances presented in this case including the respondent's counsel's concession that he provided ineffective assistance by failing to mail the notice of the hearing o the respondent's correct address, which she had provided in her 1-601 Waiver request, her reliance upon her attorney in this regard, as well as the possibility of relief through section 237(a)(l )(H) of the Act, we will allow the respondent another opportunity to appear for a hearing.1 Matter I&N Dec. 665 (BIA 2008). ORDER: The appeal is sustained, proceedings are reopened and the record is remanded to the Immigration Judge for further proceedings.

of M-R-A-, 24

The respondent's motion for reconsideration before the Immigration Judge is construed as a

motion for remand and in light of the above, is deemed moot.

Cite as: Maria Aurora Montes de Rodriguez, A043 950 329 (BIA Feb. 11, 2011)

) .;

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT 200 EAST MITCHELL DRIVE, SUITE 200 PHOENIX, ARIZONA 85012

IN THE MATTER OF
MONTES DE RODRIGUEZ, Maria Aurora

Respondent

) ) ) ) ) )

IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

FILE NO.: A043-950-329 DATE:

JAN 7 - 2010

MOTION:

Motion to Reconsider

On Behalf of Respondent
William DeSantiago, Esq. Catholic Social Service 1825 West Northern Avenue Phoenix, Arizona 85021

On Behalf of the Department

James A. Harmony, Esq. Assistant Chief Counsel Department of Homeland Security 2035 North Central Avenue Phoenix, Arizona 85004

ORDER OF THE IMMIGRATION JUDGE

The Court has received the respondent's Reply to DHS Opposition to Motion to Reopen, filed on January 6, 2009. The Court issued a Decision denying the respondent's Motion to Reopen on January 4, 2009. In the respondent's Reply, counsel for respondent concedes that he received notice of all hearings set by the Court, but failed to apprise the respondent of these dates because he sent notice of the hearings to an address where the respondent no longer resided. Counsel admits that the respondent apprised him of her new address, but as it was similar to the old one, he erroneously used the former address to send notice of the hearings. In the Motion to Reopen, counsel had previously stated that he had technological difficulties in reaching the respondent and others in her area by telephone, and therefore was unable to apprise the respondent of her hearing date by this manner. Therefore, the respondent's failure to appear at the December 24, 2008 hearing was entirely the fault of her attorney. As counsel for the respondent has admitted to his ineffective assistance, this Court will treat the respondent's Reply to DHS Opposition to Motion to Reopen as a Motion to Reconsider the Court's decision, in accordance with Ninth Circuit precedence. See, e.g., Rojas-Garcia
v.

Ashcroft,

339 F.3d 814, 825 (9th Cir. 2003 ). The Court hereby grants the Department of Homeland Security the opportunity to file a response to the motion within fifteen days of the issuance of this order.

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MONTES DE RODRIGUEZ

A043-950-329

JAN 7
Date

2010
John W. Richardson U.S. Immigration Judge

Immigrant & Refugee Appellate Center | www.irac.net