U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - SEA

Burhan Nomani & Associates, P.C.

6161 Savoy Dr. Ste 1000
Houston, TX 77036

1000 Second Avenue, Suite 2900

Seattle, WA 98104

Name: SHABUDIN-MAKNOJIA, LAILA

A 205-115-978

Date of this notice: 3/20/2015

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

DoYutL ca.AA)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Adkins-Blanch. Charles K.
Grant, Edward R.
Guendelsberger. John

Userteam: Docket

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Nomani, Burhan

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Cite as: Laila Shabudin Maknojia, A205 115 978 (BIA March 20, 2015)
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U.S. Department of Justice

Decision ofthe Board of Immigration Appeals

Executive Office for Immigration Review

.

'

Falls Church, Virginia 20530

Date:

File: A205 115 978 - Seattle, WA

MAR 2 0 2015

In re: LAILA SHABUDIN MAKNOJIA a.k.a. Laila Shabudin-Maknojia

IN

REMOVAL PROCEEDING S

ON BEHALF OF RESPONDENT:
ON BEHALF OF DH S:

Burhan Nemani, Esquire

Hana Sato
Assistant Chief Counsel

APPLICATION: Reopening

The respondent, a native and citizen of India, has appealed from the Immigration Judge's
May 16, 2014, decision denying her motion to reopen proceedings after she was ordered
removed in absentia. After considering the totality of the circumstances presented, we conclude
that the respondent demonstrated that the reopening of proceedings is warranted.

See

sections

240(b)(S)(C)(i), (e)(l) of the Immigration and Nationality Act ("the Act"), 8 U. S.C.
1229a(b)(S)(C)(i), (e)(l). We will therefore sustain the respondent's appeal and remand the
record for further proceedings.

ORDER: The respondent's appeal is sustained and the record is remanded to the
Immigration Judge for further proceedings and for the entry: of a new decision.

2kJRi
FOR THE

Cite as: Laila Shabudin Maknojia, A205 115 978 (BIA March 20, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL

'--c'

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1000 SECOND AVE.,
SEATTLE,

Nornani,

98104

P.C.

Burhan

6161 Savoy Dr. Ste 1000

Houston,

TX

77036

SHABUDIN-MAKNOJIA,

DATE:

FILE A 205-115-978

IN THE MATTER OF

May 19,

2014

LAILA

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE.

THIS DECISION

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS

WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL,
MUST BE MAILED TO:

ATTACHED DOCUMENTS,

AND FEE OR FEE WAIVER REQUEST

BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK
5107

Leesburg Pike,

FALLS CHURCH,

VA

Suite 2000

20530

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3)
SECTION 1252B(c) (3)
8

U.S.C.

OF THE IMMIGRATION AND NATIONALITY ACT,

SECTION 1229a(c} (6)

TO REOPEN,

8 U.S.C.

IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),

IN REMOVAL PROCEEDINGS.

IF YOU FILE A MOTION

YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRATION COURT
1000 SECOND AVE.,
SEATTLE,

OTHER:

WA

SUITE 2500

98104

ORDER OF IMMIGRATION JUDGE

MIGRATION COURT

CC:

HANA SATO,

ICE ASST. CHIEF COUNSEL

1000 2ND AVENUE, SUITE 2900

SEATTLE, WA,
98104

FF

Immigrant & Refugee Appellate Center | www.irac.net

aurhan Nornani & Associates,

SUITE 2500

WA

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SEATTLE, WASIDNGTON

File Number:

A205-115-978

Laila SHABUDIN-MAKNOJIA,

Respondent.

IN REMOVAL PROCEEDINGS

CHARGE:

INA 21'.?(a)(6)(A)(i) - Alien Present in the United States

Without Admission or Parole

APPLICATION:

Motion to Reopen

ON BEHALF OF RESPONDENT

ON BEHALF OF ICE

Burhan Nomani
Burhan Nomani & Associates, P.C.
6161 Savoy Drive, Suite 1000
Houston, Texas 77036

Hana Sato, Esq.

Assistant Chief Counsel
1000 Second Avenue, Suite 2900
Seattle, WA 98104

DECISION OF THE IMMIGRATION JUDGE

I. Introduction and Procedural History

The Department of Homeland Security ("DHS" or "Government ") initiated removal

proceedings against Respondent, Laila Shabudin-Maknojia, by filing a Notice to Appear
("NTA") with the Seattle Immigration Court on December 26, 2012. Exh. 1.The NTA alleges
that Respondent is a native and citizen of India, who arrived in the United States at or near
Danville, Washington, on or about October 23, 2012, and was not then admitted or paroled after
inspection. Id. The Government charged Respondent as removable under section 212(a)(2)(A)(i)
as an alien present in the United States without admission or parole. Id. Respondent was
scheduled for an initial master calendar hearing on February 26, 2014. On February 11, 2014,
Respondent filed a Motion to Change Vnue, which the Court denied based on Respondent's
failure to include written pleadings in her motion. See Immigration Court Practice Manual,
Chapter 5.IO(c) (June 10, 2013). Respondent failed to appear at her hearing and the Court

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In the Matter of:

ordered her removed in absentia.

II. Motion to Reopen

An in absentia order of removal may be rescinded where an alien files a motion to reopen
within 180 days of the date of the order of removal and establishes that the failure to appear was
because of "exceptional circumstances" or at any time where the alien establishes that she did
not receive notice. C.F.R. 1003.23(b)(4)(ii). The decision to grant or deny a motion to reopen
ultimately lies within the discretion of the immigration judge. Id. As Respondent's motion was
timely filed, the issues are whether she received proper notice of her hearing and whether she has
shown exceptional circumstances sufficient to warrant reopening.

A. Notice

Respondent claims that she did not receive effective notice of her hearing. An alien is
placed on notice of proceedings if she receives the NTA. Matter of G-Y-R-, 23 I&N Dec. 181,
188-89 (BIA 2001). A presumption of effective service applies to certified mail and regular mail.
Sembiring v. Gonzales, 499 F .3d 981, 987 (9th Cir. 2007). The presumption for delivery by
regular mail, however, is weaker than the presumption applied to delivery by certified mail. Id.
Therefore, the presumption of service of notice delivered by regular mail may be overcome. Id.
The Ninth Circuit has also held that the standard for determining whether an alien has overcome
the presumption of service is "practical and commonsensical rather than rigidly formulaic." Id. at
988; Matter of M-R-A-, 24 I&N Dec. 665, 674 (BIA 2008) (stating that "the Immigration Judge
must conduct a practical evaluation of all the evidence, both circumstantial and corroborating
evidence").
Respondent asserts in her motion that she did not receive "the Notice." Resp. 's Motion at 1.
The record indicates that Respondent was properly served in person with the Notice to Appear at
the time it was issued by DHS. See Exh. 1. Accordingly, Respondent was placed on notice of the
proceedings. See also Matter ofG-Y-R-, supra at 188-89. Further, although Respondent's hearing

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On March 24, 2014, Respondent timely filed a motion to reopen removal proceedings,
asserting that she did not receive notice of her hearing and that exceptional circumstances
beyond her control prevented her from traveling to Washington and appearing. Specifically,
Respondent argues that because she did not have identification documents, she was unable to
travel by air or bus to attend her hearing. She further asserts that she was unable to make any safe
arrangements to travel by car from Texas to Seattle. See Respondent's Motion to Reopen (filed
Mar. 24, 2014). On April 4, 2014, the Department filed its opposition to Respondent's motion.
For the following reasons, the Court denies Respondent's motion to reopen these proceedings.

B. Exceptional Circumstances
Exceptional circumstances are circumstances beyond the control of the alien, "such as
battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the
alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less
compelling circumstances." INA 240(e)(l). Courts have held that a motion to reopen must state
new facts that compel a finding of exceptional circumstance. Celis-Castellano v. Ashcroft, 298
F.d 888, 892 (9th Cir. 2002) ((emphasis added) (citing lN.S. v. Elias-Zacarias, 502 U.S. 478,
483-84 (1992)).
Respondent raises a number of arguments in order to establish that exceptional
circumstances prevented her from the attending her hearing. First, Respondent explains that she
"remained under the impression that her case would move to Houston, Texas ...after [her]
release from Tacoma." Resp.' s Motion at 1. She further asserts that she was unable_ to make
travel arrangements due to the "less than 48 hours" notice of her hearing. Id at 2. Respondent
then asserts that she attempted to make travel arrangements to appear at her hearing but that she
could not travel by air or bus without identification, which she does not possess. Id. at 1. She
further states that she was "told that if she tried to travel by car, ICE . .. could detain her." Id.
Respondent's several arguments are unavailing. As an iniial matter, the Court has
already determined that Respondent has actual knowledge of her hearing notice at least three
weeks prior to the hearing date. Thus, her argument that she was provided less than 48 hours'
notice of her hearing is without merit. Additionally, although Respondent might reasonably
expect her hearing to take place near her residence in Texas, she was properly served with the
NTA that indicated her hearing would take place in Seattle, Washington.Respondent does not
claim to have received any notice from an immigration court in Texas, indicating that her hearing
location had changed. She also does not assert anywhere in her motion that she made attempts to
contact any of the immigration courts in Texas to ascertain the date, time, and location of her
hearing. Indeed, more than one year elapsed between the date of service of the NTA and
Respondent's initial master calendar hearing during which Respondent could have inquired

A205-115-978

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notice was sent to her last-known address, Respondent contends that she only "found out a few
days prior to the Hearing date that her [December 26, 2012] hearing Notice_ was returned back to
the Court." Resp.'s Motion at 1.However, Respondent's motion to change venue, which is dated
February 6, 2014, and which notes the date of her master calendar hearing, plainly indicates
Respodent had actual knowledge of her hearing date at least three weeks prior to her hearing
date. See Resp.'s Motion to Change Venue (filed Fb. 11, 2014). Having conducted a "practical
evaluation of all evidence," the Court finds that Respondent has failed to establish that she did
not receive notice of her hearing.

regarding the details of her hearing.

ORDER
IT IS HEREBY ORDERED

that Respondent's motion to reopen and rescind the in absentia

order of removal is DENIED.

Date

f bAf> ti. CL :Z

Paul A. DeFonzo

Immigration Judge

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Immigrant & Refugee Appellate Center | www.irac.net

Finally, while the Court accepts as true Respondent's statement that she does not ssess
the necessary documentation for air and bus travel, Respondent has not provided a reasonable
.
explanation as to why she was unable to travel from Texas to Washington by car when she had
previously driven from Washington to Texas without being detained or even stopped. Ultimately,
Respondent has failed to establish that these obstacles constitute exceptional circumstances as
contemplated by section 240(e)(I) or that they result from compelling circumstances beyond
Respondent's control. INA 240(e)(l). The Court finds that Respondent has failed to meet the
standard for a motion to reopen and will therefore deny Respondent's motion.