U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk
5/07 leesburg Pike. Suite 2000
Falls Church, Virgima 22041

DHS/ICE Office of Chief Counsel - ORL

3535 Lawton Road, Suite 100
Orlando, FL 32803

Name: CHUMPITAZ, ERIKA KAREM

A 096-982-337
Date of this notice: 1/28/2016

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

DOWtL Ca.Nu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.
Adkins-Blanch, Charles K.
Guendelsberger, John

Userteam: Docket

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Mendez, Michael
COLOMBO & HURD, PL
301 E. Pine St., Ste. 300
Orlando, FL 32801

. U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A096 982 337 - Orlando, FL

JAN 2 8 2016

Date:

In re: ERIKA KAREM CHUMPITAZ a.k.a. Erika Chumpitaz De Salas

APPEAL
ON BEHALF OF RESPONDENT: Michael Mendez, Esquire
APPLICATION: Reopening
The respondent is a native and citizen of Peru. She appeals from the Immigration Judge's
decision dated September 10, 2014, denying her motion to reopen removal proceedings which
were conducted in absentia on July 31, 2008. The Department of Homeland Security (DHS) has
not filed a reply to this appeal. The appeal will be sustained, proceedings will be reopened and
the record will be remanded.
We have reviewed the record, including the supporting evidence that was submitted by the
respondent to prove that she did not receive notice of her hearing or of her statutory address
obligations. We have also considered the respondent's diligence in filng for reopening after she
became aware of the in absentia order of removal against her. Under the totality of the
circumstances, we will sustain the appeal and afford the respondent another opportunity to
appear for a hearing.
ORDER: The appeal is sustained, the in absentia order is vacated, proceedings are reopened,
and the record is remanded to the Immigration Judge for further proceedings.

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR lMMIGRATION REVIEW
IMMIGRATION COURT
ORLANDO, FLORIDA

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CHUMPITAZ, Erika Karem

Respondent

APPLICATION:

A096-982-337
September 10, 2014

Motion to Reopen

ON BEHALF OF RESPONDENT
Michael Mendez, Esq.
Colombo & Hurd, PL
5555E. Michigan St. Ste. 100
Orlando, FL 32822

ON BEHALF OF DHS 1
Anna Holbrook, ACC.
Orlando, FL

ON RESPONDENT'S MOTION TO REOPEN

I. Procedural History
Erika Karem Chumpitaz, ("Respondent"), a native and citizen of Peru, was admitted to
the United States at Miami, Florida, on or about July 27, 2000 as a non-immigrant visitor with
authorization to remain in the United States for a temporary period not to exceed January 26,
2001. She remained in the United States beyond January 26, 2001 without authorization from
DHS. She also procured her admission by fraud or willfully misrepresenting a material fact, to
wit: she married a United States citizen for the sole purpose of obtaining lawful residence in the
1

The Homeland Security Act of 2002, as amended, transferred the enforcement, services, and
administrative functions of the Immigration and Naturalization Service ("INS") to the Department of Homeland
Security ("OHS"). Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824 {Feb. 28, 2003) (to
be codified in scattered parts of 8 C.F.R.).

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IN THE MATTER OF:

United States.

On December 5, 2007, respondent was sent by regular mail a notice of hearing at the
Orlando Immigration Court scheduled for July 31, 2008 at 8:30 A.M. The notice was not returned
by the postal service. On July 31, 2008 , then, pursuant to proper notice, the respondent failed to
appear. The court admitted the NTA and the Form 1-213 and pursuant to the DHS' motion,
ordered the respondent removed in absentia pursuant to INA Section 240(b)(5)..
After six years, on July 31, 2014, Respondent, through counsel, submitted a Motion to
Reopen Proceedings. Said motion alleges that the respondent did not attend the hearing on July
31, 2008, because she was not aware that she had been placed in removal proceedings and was in
fact residing in Kissimmee, Fl. The respondent admitted that she had attended an interview
related to her marriage to a U.S. citizen but offered no explanation as to why she failed to notify
the government of any address changes such that she could be notified of any hearings.
On August 12, 2014, DHS submitted a motion opposing the Respondent's Motion to
Reopen Proceedings. The Government's motion asserts that the Respondent's motion should be
denied because the respondent can be charged with having received the NTA and further notices
since she has not presented evidence that the Postal Service erred in delivery of said documents;
and furthermore, that if the Respondent moved to another address in the Orlando area, it was her
responsibility to alert the DHS of the address change as required by the regulations pursuant to 8
C.F.R. section 1003.24(b)(3)(iii)(A)(l). DHS' arguments are correct.
II. Analysis
An order of removal entered in absentia pursuant to section 240(b)(5) of the INA may be
rescinded only upon a motion to reopen filed within 180 days after the date of the order of
removal, if the alien demonstrates that the failure to appear was because of exceptional
circumstances beyond the control of the alien (e.g., serious illness of the alien or serious illness or
death of an immediate relative of the alien, but not including less compelling circumstances). See
8 CFR Section 1003.23(b)(4)(ii).
In this case, OHS established by clear, convincing and unequivocal evidence that the

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On September 7, 2007, DHS served the Respondent with a Notice to Appear ("NTA") by
regular mail. The Respondent was charged under Section 237(a)(l )(B) of the Immigration and
Nationality Act in that, after admission as a non-immigrant under section 101(a)(l 5) of the Act,
she remained in the United States for a time longer than permitted. She was also charged under
section 237(a)(l)(A) of the INA in that at the time of her entry she was inadmissible for having
procured a benefit by fraud or willfully misrepresenting a material fact, under section
212(a)(6)(C)(i) of the Act. The NTA instructed the Respondent to appear for a removal hearing
to be set. It was mailed to respondent's address at 629 Golden Oaks Lane, Sanford, FL. 32771.
The address was provided by Respondent herself when seeking to adjust status from her marriage
to a U.S. citizen.

respondent was removable and that she had been given proper notice of her removal hearing
pursuant to service by mail to the respondent's last known address of record. Furthermore, the
respondent's motion was filed six years after the order of removal. Clearly, then the motion to
reopen is untimely; it presents no arguments that would compel the court to find that the
respondent was unable to receive the NTA and further notices for what could be considered as
exceptional circumstances, and must therefore for these reasons be denied.

IT IS HEREBY ORDERED that Respondent's Motion to Reopen is DENIED.

DATED this 10TH day of September, 2014.

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Appeal due by:

.,_/.

/,,/ Rafael B. Ortiz-Segura

,,
Immigration Judge
//

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ORDER