Kriezelman, Matthew S.

, Esq
Kriezelman Buron & Associates
200 W. Adams St, Suite 2211
Chicago, IL 60606
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leebur Pik, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - CHI
525 West Van Buren Street
Chicago, IL 60607
Name: HAMDAN, MAHMOUD NABEEL A 087-240-107
Date of this notice: 6/9/2014
Enclosed is a copy of te Board's decision and order in the above-referenced case.
Enclosue
Panel Members:
Guendelsberger, John
Sincerely,
Do Ca
Donna Carr
Chief Clerk
Trane
Usertea m: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Mahmoud Nabeel Hamdan, A087 240 107 (BIA June 9, 2014)
' '
U.S. Department of Justice
Executive Ofce fr Imgation Review
Fals Cuch Virginia 20530
File: A087 240 107 -Chicago, I
I re: MAHMOU NABEEL HA
I RMOVAL PROCEEDIGS
APEAL
Decision of te Board of Imgaton Appeals
Date:
. JUN
0 92014
ON BEHALF OF RESPONDENT: Matthew S. Kezelma, Esqure
ON BEHALF OF DHS:
APPLICATION: Reopening
Elizabeth I. Treacy
Assistat Chief Counsel
The respondent appeals fom te September 12, 2012, Immigation Judge's decision
denyng the respondent's motion to reopen removal proceedings which had been conducted in
absentia on December 29, 2010. The Deparent of Homelad Secuty (OHS) has fled a
oppositon to te appeal. The record will be remanded.
The Boad reviews fndings of fct by a Iigation Judge under te clealy eroneous
standad of review, ad may review questions of law, discretion, ad judgent ad all other
issues in appeals fom decisions of Imigation Judges de novo. See 8 C.F.R. 1003.l(d)(3)(i),
(ii).
I Smy/ene v. Holder, 707 F.3d 785 (7
1h
Cir. 2013), the U.S. Court of Appeals fr the
Seventh Circuit, in whose jusdiction tis case lies, held that once nonreceipt is attested in an
affdavit ad there is no conclusive evidence of evasion, the alien is entitled to an evidentiary
hearing. Here, the respondent contended in his affdavit that he did not receive notice of te
heag, and the record refects that it was reted to the Im gration Court as udeliverable. I
light of tis interening precedent, we will remad fr the Iigation Judge to evaluate
whether the respondent is enttled to a evidentiay heang to determine the fctul basis fr
nonreceipt of the heaing notice. Id. See also 8 C.F.R. 1003.l{d)(3)(iv) (limitng te Boad's
fct-fnding ability on appeal).
O remad, te Immigation Judge shall also evaluate tis case uder Matter of G-Y-R-,
23 I&N Dec. 181 (BI 2001). I that case we held tat enty of an in absentia order of removal
is inapproprate where the record refects tat the alien did not receive, and could not be chaged
. with receiving, te notice to appea (NTA) that was sered by mail at a addess obtained fom
documents fled with the Serice several yeas earlier. While te Immigation Judge fund tat
address notifcation advisals provided in the For I-485 were suffcient to fd te respondent
may be properly chaged with notice, in Matter of G-Y-R-, we have fud that section 239(a)(l)
of the Immigation and Nationality Act, 8 U.S.C. 1229(a){l), autorizes the ent of an in
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Mahmoud Nabeel Hamdan, A087 240 107 (BIA June 9, 2014)
. A087 240 107
absentia order only afer the respondent receives the wangs ad advisas contained in te
NTA.
1
I remadng this case, we intimate no opinion as to the ultimate merits of te
respondent's appeal. Accordigly, te fllowing order will be entered.
ORER: Te record is remaded to te Im gation Judge fr fer proceedings
consistent wit the fregoing opinion ad fr te ent of a new decision.
1 I his affdavit accompanyng te motion to reopen, the respondent states tat he wa "sered"
with the N A, but on appeal, the respondent's brief implies tat he did not actually receive te
N A. Consequently, the record is abiguous wheter he actually received te N A.
2
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Mahmoud Nabeel Hamdan, A087 240 107 (BIA June 9, 2014)
0 0
UITED STATES DEPATMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMIGRATION REVIEW
IMMIGRTION COUT

525 W. VA BUN, SUITE 500
CHICAGO, IL 60607
KRIEZELM BUTON & ASSOCIATES, LLC
KRIEZELM, JEFFREY A.
200 W. AAS / SUITE 2211
CHICAGO, IL 60606
IN THE MATTER OF
HA, MOU NAEEL
FILE A 087-240-107
UABLE TO FORWAD - NO ADRESS PROVIDED
DATE: Sep 12, 2012
X ATTACHED IS A COPY OF THE DECISION OF THE IMIGRTION JGE. THIS DECISION
-IS FINAL ULESS A APPEAL IS FILED WITH THE BOAD OF IMMIGRTION APPEALS
WITHIN 3 0 CAENA DAYS OF THE DATE OF THE MILING OF :THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPAING YOU APPEA.
YOUR NOTICE OF APPEA, ATTACHED DOCUENTS, A FEE OR FEE WAIVER REQUEST
MUST BE MILED TO: BOA OF IMIGRTION APPES
OFFICE OP TBE CLER
P.O. BOX 8530
FALLS CHUCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUGE AS THE RESULT
OF YOU FAILURE TO APPEA AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINA UNLESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c} (3) OF THE IMIGRTION A NATIONALITY 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 COUT:
OTHER:
IMMIGRTION COURT
525 W. VA BUEN, SUITE 500
CHICAGO, IL 60607
COURT CLERK
IMMIGRTION COUT
CC: ELIZAETH TREACY, ASST. CHIEF COUSEL
525 W. VA BUREN, SUITE 701
CHICAGO, IL, 60607
FF
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
U.S. Department of Justice
Executive Offce fr Immigation Review
Immigration Cou Chicago
In the Matter of: Case No.: A087-240-107
Mahmoud Hamdan
Docket:

Respondent/ Applicant I Removal Proceedings

ORDER OF THE IMMIGRATION JDGE
Upon consideration of respondent' sf applicant's
_
Motion to Reconsider an Immigration Judge's decision
_X _ Motion to Reopen proceedings
fled in te above entitled mater, it is HEREBY ORDERED that the motion
_ be granted.
11
x be denied fr the reasons indicated below.
i?.LJ
Robert D. inioor
Immigration Judge
Date: September 12, 2012
_1/ Te respondent's motion fils to meet the requirements fr reopening a inabsentia heaing
under Section 240(b)(5)(C). The record refects that the respondent submitted an application fr
permanent residence to the USCIS on August 15, 2008. The application provided the notice
requirements under Section 239(a)(l)(F) ad advised the respondent that he wa required to
provide USCIS with his curent address and written notice of any change of address witn ten
days of the chage. The application fher provided the respondent the fllowing advisals: "I
uderstand and acknowledge that if I chage my address without providing witen notice to
USCIS, I will be held responsible fr any communications sent to me at the most recent address
that I provided to USCIS. I frher understand and acknowledge that, if removal proceedings ae
initiated against me and I fil to atend any heaing, including an initial heaing based on service
of the Notice to Appear at the most recent address that I provided to USCIS or otherwise
provided by law, I may be ordered removed in my absence, arrested and removed from the
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
.
.
United States."
Te respondent's motion is inaccurate and does not explain why he never notifed the USCIS
or te cou concerng ay change of address. Here, the respondent motion ad afdavit
ackowledges that he received the Notice to Appea at the address he provided in his application
fr peraent residence. Additionally, the record refects that the respondent was notfed to
appear fr hearings on June 30, 2010, December 2, 2010 and December 29, 2010. However, te
notices were retured by the Post Ofce ''attempted not kown, unable to frwad" ad the
respondent never appeared fr ay of these hearings. Thus, the respondent's motion which
alleges that he appeared fr the June 30, 20 I 0 hearing is inaccurate. Additionally, while the
respondent may have been represented by an attorey befre USCIS no notice of appeaance was
ever fled with the cour, and therefre, the notices were sent to the respondent at his last kow
address.
Because the hearing notice fr the inabsentia hearing was retued to the court as
undeliverable, its clear that the respondent did not receive actual notice of his heang date.
Whether the respondent ca be "charged" with receipt of the notice of the heaing fr purpose of
an inabsentia hearing is the question in this case. Under the 7th Circuit Court decision in
Peralta-Cabrera, 501 F.3d 837 (71h Cir. 2007), the respondent can only be "charged' wth
receiving the notice because he "made himself unreachable." In this case, I fnd that the
respondent made himself unreachable and therefre can be "charged" with receipt of te notice
of hearing. In reaching this conclusion, this court has reviewed the respondent's limited
evidence. No infrmation has been provided concering when he moved to a new address or
even when he separated fom his spouse. No affdavit has been fled by the respondent's ex
spouse concering the frwading of mail to the respondent at all. Te respondent contends tat
he moved to a new address because of separation fom his wife but was still receiving his mal at
the address contained in his adjustment of status application. However, without more tis
explanation is insuffcient and doesn't explain why all 3 notices were reted as "attempted -
not kow." Moreover, the respondent never notifed the USCIS or the court of his new address
afer he was sered with the Notice to Appear in April, 20 I 0. The respondent provided no
explanation why he waited more than two and half years to inquire about his case. Therefre, the
court fnds that the respondent has filed to meet his burden warating reopening. Here, the
application fr permanent residence 1-485 contained the proper waing about filure to appear
ad the address listed therein can sere as a 239(a)(l )(F) address fr purposes of an in absentia
heaing. See GYR, 23 I&N Dec. 1 81 (2001).
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t