U.S.

Department of Justice

Executive Office for Immigration Review

Board of Jmmigrat ion Appeals
Q[fice of the Clerk
5/07 Leesburg Pike, Suite 2000
Falls Church, Virginia 220./ I

OHS/ICE Office of Chief Counsel - LOS

606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name: GUZMAN-DERAS, PATRICIA YA ...

A 099-678-562

Date of this notice: 3/15/2016

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

Don.rtL Cwvu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
Adkins-Blanch, Charles K.
O'Leary, Brian M.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Patricia Yanira Guzman-Deras, A099 678 562 (BIA March 15, 2016)

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Romo, Fernando
Law Offices of Fernando Romo
& Associates, PLC
1625 West Olympic Blvd., Suite 1035
Los Angeles, CA 90015

U.S. Department of Justice

' Executive Office for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 22041

File: A099 678 562 - Los Angeles, CA

Date:

MAR 1 5 2016

IN REMOVAL PROCEEDINGS
ON APPEAL
ON BEHALF OF RESPONDENT: Fernando Romo, Esquire
APPLICATION: Reopening

The respondent has appealed the Immigration Judge's decision dated March 2, 2015, denying
her motion to reopen. An Immigration Judge had previously ordered the respondent removed in
absentia for her failure to appear at the hearing on October 18, 2007. We review an Immigration
Judge's findings of fact for clear error, but questions of law, discretion, and judgment, and all
other issues in appeals, de novo. 8 C.F .R. 1003.1(d)(3)(i), (ii). Upon our de novo review, in
light of the totality of the circumstances presented in this matter, we will sustain the appeal and
reopen the proceedings to allow the respondent another opportunity to appear for a hearing.
Accordingly, the following order will be entered.
ORDER: The respondent's appeal is sustained, the proceedings are reopened, the in absentia
removal order is rescinded, and the record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion and the entry of a new decision.

Cite as: Patricia Yanira Guzman-Deras, A099 678 562 (BIA March 15, 2016)

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In re: PATRICIA YANIRA GUZMAN-DERAS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
)

In the Matter of:

)
GUZMAN-DERAS,
Patricia Yanira,

Respondent

IN REMOVAL PROCEEDINGS

)
)
)

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA")

(2001)-present without admission or parole

APPLICATION:

Respondent's Motion to Reopen

ON BEHALF OF RESPONDENT:
Fernando Romo, Esquire
Law Offices of Fernando Romo
and Associates, PLC
1625 West Olympic Boulevard, Suite 1035
Los Angeles, California 90015

ON BEHALF OF THE GOVERNMENT:

Assistant Chief Counsel
U.S. Department of Homeland Security
606 South Olive Street, Eighth Floor
Los Angeles, California 90014

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY
Patricia Yanira Guzman-Deras ("Respondent") is a native and citizen of El Salvador. On
May 18, 2006, the Government personally served Respondent with a Notice to Appear ("NTA"),
alleging therein that Respondent:
1. is not a national or citizen of the United States;
2. is a native and citizen of El Salvador;
3. entered the United States at or near Roma, Texas on or about May 17, 2006; and
4. was not admitted or paroled after inspection by an Immigration Officer.
Exh. 1. Based on these factual allegations, the Government charged Respondent as inadmissible
pursuant to INA 2 l 2(a)(6)(A)(i). Id.
The NTA ordered Respondent to appear before the Court on July 18, 2006. Id. On that
date, Respondent arrived for her hearing , yet was told at the information window that "it did not

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A 099 678 562

File No.:

appear that [she] had court that day" and that "[she] could go home because [she] was not on the
list." Resp't's Mot., Tab A at 1, 13 (Dec. 18, 2014).

On May 25, 2007, the Court served Respondent by mail with a Notice of Hearing
("NOH"), setting her next hearing for June 7, 2007. Exh. 3. On May 31, 2007, the NOH was
returned to the Court as undeliverable. Id.
On June 7, 2007, the Court served Respondent by mail with a NOH, scheduling her next
hearing for October 18, 2007. Exh. 4. 1
On October 18, 2007, Respondent failed to appear for her scheduled hearing. The Court,
proceeding in absentia, found that inadmissibility had been established by clear, convincing, and
unequivocal evidence based on the Form 1-213 Record of Deportable/lnadmissible Alien
submitted by the Government. See Exh. 5. Accordingly, the Court ordered Respondent removed
to El Salvador.
On December 18, 2014, Respondent filed the pending motion to reopen, alleging therein
that she did not receive notice of the Government's request to reschedule the NTA or of her
October 18, 2007 hearing.
For the following reasons, the Court will deny Respondent's motion to reopen.
II. LAW AND ANALYSIS
A. Timeliness Bar
Generally, a motion to reopen and rescind an order for removal entered in absentia must
be filed within 180 days of the date of entry of a final administrative order of removal. 8 C.F.R.
1003.23(b)(4)(ii). The date that an immigration judge's order is entered fixes the deadline for
filing a motion to reopen. Matter ofGoolcharan, 23 I&N Dec. 5, 6 (BIA 2001).
Here, the Court ordered Respondent removed to El Salvador on October 18, 2007.
However, Respondent did not file the present motion until December 18, 2014, more than seven
years later. Accordingly, Respondent's motion is untimely.

Although this NOH is marked as Exh. 3, during the hearing on October 18, 2007, the Immigration Judge ("IJ")
identified it as Exh. 4.

2
4444.

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Because the NTA had not been timely filed with the Court, the Government filed a
request to reschedule Respondent's hearing date. See Request to Reschedule NTA Interactive
Scheduling System (Mar. 21, 2007). Jurisdiction vested and removal proceedings commenced
when the Government filed the NTA with the Court on May 25, 2007. 8 C.F.R. 1003.14(a)
(2007).

B. Notice

In this case, Respondent admits that she was personally served with the NTA on May 18,
2006. Resp't's Mot. at 2, 4. However, Respondent asserts that she was not properly served with
the rescheduled NTA and the two subsequent hearing notices-the last of which led to her in
absentia removal-because she was no longer residing at the address where service was
attempted. Id. at 2-3. Furthermore, Respondent asserts that she would have been unable to
notify the Court of a change of address between the time she was served with the NTA and when
it was actually filed with the Court because there would have been no record of the matter in the
Court's system. Id. at 4.
Here, Respondent was properly notified of her removal proceedings when she was
personally served with and signed the NTA on May 18, 2006. See INA 239(a)(l); 8 C.F.R.
1003 .13; Exh. 1. Once she was served with the NTA, Respondent was on notice that she had
an obligation to notify the Court of any address changes. See INA 239(a)(l )(F). However,
there is nothing in the record to show that Respondent updated her address with the Court when
she moved in February 2007. See Resp't's Mot., Tab A at I, il 4. Even if Respondent had not
been able to file a change of address with the Court in February 2007 because the NTA had not
yet been filed, she was also required to notify the Government 2 Because she did not do so, it
was reasonable for both the Government and the Court to mail correspondence regarding her
proceedings to the address Respondent initially provided to the Government. Thus, the Court
finds that the Government's request to reschedule the NTA and notice of Respondent's June 7,
2007 and October 18, 2007 hearings were properly served because they were mailed to
Respondent's most recent address. See INA 239(a)(l); G-Y-R-, 23 I&N Dec. at 185.
Based on the foregoing, the Court finds that Respondent received legally sufficient notice
of the NTA and her subsequent rescheduled hearings and declines to reopen her case on this
basis.

The "Failure to Appear" advisal on the NTA served on Respondent notified her that she was ''required to provide
the [Government], in writing, with [her] full mailing address and telephone number'' and immediately notify the
Court of any address changes. Exh. I. Furthermore, it advised her of the consequences of failing to provide an
address at which she could be reached during proceedings and for failing to appear. Id.

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The Court may rescind an in absentia removal order upon a motion to reopen filed at any
time if the respondent demonstrates that she did not receive proper notice of the proceedings.
INA 240(b)(5)(C)(ii); 8 C.F.R. 1003.23(b)(4)(ii). Written notice of scheduled proceedings
must be given in person to the respondent or, if personal service is not practical, through service
by mail to the respondent or the respondent's counsel of record, if any. See INA 239(a)(l);
8 C.F.R. 1003.13. Once the NTA has been properly served, the respondent is required to
provide an address at which she can be contacted, and she has an affirmative obligation to update
the Court if that address changes. See INA 239(a)(l )(F). Additionally, a NOH is deemed
sufficient if mailed to the most recent address provided by the respondent. See INA
240(b)(S)(A); Matter of G-Y-R-, 23 I&N Dec. 181, 185 (BIA 2001). The respondent can be
properly charged with receiving constructive notice, even though she did not personally see the
mailed document. G-Y-R-, 23 l&N Dec. at 189.

..

0
C. Sua Sponte Reopening

In the present matter, Respondent has not acted with due diligence in filing the pending
motion. Respondent knew that she was in removal proceedings from the moment she was
personally served with the NTA on May 18, 2006, as the NTA contains her signature. See Exh.
1 Moreover, she was warned of the consequences of a failure to appear for immigration
proceedings. See Id. There is nothing in the record that shows that Respondent sought
information about or otherwise pursued her immigration proceedings until filing the pending
motion, more than seven years after being ordered removed. Instead, she merely assumed that
the Court had "forgotten about [her]" after her first scheduled hearing did not move forward and
after not receiving a notice of hearing for a few months thereafter. Resp't's Mot., Tab A at 1,
3-4. Thus, the Court finds that Respondent did not make a diligent effort in pursuing her case.
Based on the foregoing, and in the interest of finality, the Court declines to reopen
Respondent's case sua sponte.
Accordingly, the following order will be entered:

ORDER
IT IS HEREBY ORDERED that Respondent's motion to reopen be DENIED.

i, l ,,

.t.fj

Ani"ia Ho" --'

Immigration Judge

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An immigration judge may, upon her own motion at any time, or upon motion of the
Government or the respondent, reopen any case in which she has made a decision. 8 C.F.R.
1003.23(b)(1 ). The decision to grant or deny a motion to reopen is within the discretion of the
immigration judge. 8 C.F.R. 1003.23(b)(l)(iv). The Board of Immigration Appeals ("Board")
has stated that "the power to reopen on our own motion is not meant to be used as a general cure
for filing defects or to otherwise circumvent the regulations, where enforcing them might result
in hardship." Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997). Proceedings should be
reopened sua sponte only under "exceptional" situations. id. Moreover, the BIA has indicated
that where finality is a key objective, the threshold for sua !iponte reopening is extremely high.
See Matter of 0-. 19 I&N Dec. 871,871 (BIA 1989).