Maldonado, Javier N., Esq.

U.S. Department of Justice

Executive Ofce fr Immigation Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesb11r like. S11ite 2000
Fals C11rc1, Vrginia 21041
The Law Ofice of Javier N. Maldonado, P. C.
110 Broadway, Suite 510
OHS/ICE Ofice of Chief Counsel SNA
8940 Fourinds Drive, 5th Floor
San Antonio, TX 78239
San Antonio, TX 78205
Name: PHAM, LOAN NGUYEN THU A095-245-758
Date of this notice: 6/11/2012
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Hofnan, Sharon
Manuel, Elise L.
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Loan Nguyen Thu Pham, A095 245 758 (BIA Jun. 11, 2012)
For more unpublished BIA decisions, visit www.irac.net/unpublished
g
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U.S. Deparent of Justice

Executive Ofc fr Imigation Review
Decision of the Board of Imigation Appeals
Falls Church, Virginia 22041
File: A095 245 758 - San Antonio, T Date:
In re: LOAN NGUYEN THU PHAM a.k.a. Loan N. Pham
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Javier N. Maldonado, Esquire
APPLICATION: Reopening
JUN 11 2012
The respondent has appealed fom the Immigation Judge's decision dated July 22, 2011. The
Immigation Judge denied the respondent's motion to reopen proceedings in which she was ordered
removed in absentia. On appeal, the respondent argues that she did not receive proper notice of her
scheduled heaing. The respondent's appeal will be sustained.
The Board reviews an Immigration Judge's fndings of fct, including fndings as to the
credibility of testimony, under the "clearly erroneous" standard. 8 C.F .R. 1003 .1 ( d)(3 )(i). The
Board reviews questions of law, discretion, and judgent and all other issues in appeals fom
decisions of Immigration Judges de novo. 8 C.F.R. 1003. l(d)(3)(ii).
The record refects that the Notice to Appear was mailed by certifed mail to the respondent on
February 14, 2007, at her last know address, which was provided by te respondent at her April 19,
2006, interview with an ofcial fom the United States Citizenship and Immigration Services. The
certifed mail retu receipt was purportedly signed by the respondent's landlord on Febrary 20,
2007. A notice of hearing was mailed to the same address as contained on the Notice to Appear.
When the respondent filed to appear fr her scheduled hearing on December 31, 2007, the
Immigration Judge ordered the respondent's removal in absentia. The respondent fled a motion to
reopen on June 2I,2011. The Immigation Judge denied the respondent's motion and the respondent
fled a timely appeal.
Upon de novo review, we fnd that the fcts of this case fall within the parameters of our decision
in Matter ofG-Y-R-, 23 I&N Dec. 181 (BIA 2001). In that case, we held that entr of an in absentia
order of removal is inappropriate where the record refects that the alien did not receive, or could not
be charged with receiving, the Notice to Appear infrming the alien of the statutor address
obligations associated with removal proceedings and of the consequences of filing to provide a
curent address, pursuant to section 239(a)(l)(F) of the Immigration and Nationality Act, 8 U.S.C.
1229(a)(l )(F). According to the respondent's afdavit, the respondent lef the United States in
March 2007 to visit her mother and did not retu to the United States until March 2010. The
respondent has also submitted an afdavit fom her landlord attesting to receiving some of the
respondent's immigration-related mail, but not frwarding it to her. Thus, the record does not refect
that the respondent actually received the Notice to Appear, and it is the Notice to Appear that
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Cite as: Loan Nguyen Thu Pham, A095 245 758 (BIA Jun. 11, 2012)
T
A095 245 758
specifcally advises an alien of the requirement to notif the Immigration Cour immediately by using
For EOIR-33 whenever there is a change of address duing the course of the removal proceedings.
As tere is no evidence that the respondent actually received the Notice to Appea, she was not on
notice of the address notifcation requirement. See 8 U.S.C. 1229(a)(I)(F). Accordingly, the
appeal will be sustained and the record will be remanded to te Immigration Judge fr fher
proceedings consistent with the fregoing decision.
ORDER: The appeal is sustained and te removal proceedings are reopened.
FURTHER ORDER: The record is remanded fr frther proceedings consistent with the
fregoing decision.
WMW. N - f M W .. ..
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Cite as: Loan Nguyen Thu Pham, A095 245 758 (BIA Jun. 11, 2012)
..
W-
UITED STATES DEPARTMENT OF JUSTICE
EXECUTIV OFFICE FOR IMIGRTION REVIEW
IMMIGRTION COURT
800 DOLOROSA STREET-SUITE 300
SA ATONIO, TX 78207
GONZALEZ & OTERO, L.L.P.
OTERO, ALFONSO ESQ.
110 BROAWAY, STE 510
SAN ATONIO, TX 78205
IN THE MATTER OF
PHM, LOA NGUYEN THU
FILE A 095-245-758 DATE: Jul 25, 2011
UABLE TO FORWARD - NO ADRESS PROVIDED
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUGE. THIS DECISION
IS FINAL ULESS A APPEAL IS FILED WITH THE BOARD OF IMMIGRTION APPEAS
WITHIN 30 CAENDA DAYS OF THE DATE OF THE MILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AD FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUDGE A THE RESULT
OF YOUR FAILURE TO APPEA AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEAING.
THIS DECISION IS FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRTION A NATIONAITY 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 REMOVA PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
OTHER:
IMMIGRATION COURT
800 DOLOROSA STREET-SUITE 300
SA ATONIO, TX 78207
COURT CLERK
IMIGRTION COURT
CC: GRACIELA G. GARZA
P.O. BOX 1939
SA ATONIO, TX, 782971939
W- f-

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)
)
)
)
In the Matter of )
)
)
Loan Nguyen Thu Pham
)
)
)
U.S. DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
Immigration Court
File A095 245 758
In Removal Proceedings
Order of the
Immigration Judge
The respondent in the above captioned case was order removed from the Untied States in a hearing
conducted in absentia on December 31, 2007. The respondent has subsequently filed a motion to reopen
the proceeding, alleging failure to properly serve the Notice to Appear and lack of notice of the hearing.
The motion will be denied.
Motions to reopen are governed by Title 8 CFR 1003.23(b
)
(l
)
. This provides, among other things,
that "A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject
of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United
States." Counsel argues, however, that Matter of Bulnes, 25, l&N Dec. 57 (BIA 2009
)
preserves jurisdiction
for the court and that Matter of G - Y - R -j 23 l&N Dec. 181 (BIA 2001
)
requires that the court find that
the Notice to Appear (charging document) was not properly served on the respondent. In this case the
Notice to Appear was actually received at the address that the respondent had last given to USCIS on April
19, 2006. The certified mail return receipt attached to the Notice to Appear shows delivery on or about
February 20, 2007. Respondent has sworn that she was in the United States on that date but did not
provided any updated address to USCIS nor did she contact counsel she had previously had or the adult
residing at the address she had left with USCIS who had received the Notice to Appear. I find, given the
recency of the address used by USCIS, the actual receipt of the charging document, and the respondent's
lack of due diligence that actual and constructive service of the Notice to Appear has been established.
See Matter of G - Y R - ,supra. secs. A & B at 186. Notice of the respondent's hearing on December 31,
2007 was sent to that same address on November 20, 2007 and there is no evidence that it was not
delivered to that address. I also note that the address given by current counsel on their entry of
appearance (Form EOIR - 28
)
is the same as that used in 2006. I finally note that the respondent was aware
of the expiration of her status as a Lawful Permanent Resident and her reentry to the United States as a
visitor. I have considered all documents offered both in the Record of Proceedings and with the motion
to reopen and the arguments of counsel but find that the requirements for reopening have not been met
on this record and the motion to reopen is DENIED. SO ORDERED.
Date: July 22, 2011
Place: San Antonio, Texas
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