)

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Qffice of the Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church. 1;rginia 220-1/

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Marvin, William Joseph DHS/ICE Office of Chief Counsel - LVG
American Immigration Lawyers LLC 3373 Pepper Lane
3608 E Sunset Road Las Vegas, NV 89120
Suite 110
Las Vegas, NV 89120

Name: AVELAR-RAMIREZ, LUIS OCTA ... A 205-151-099

Date of this notice: 1/18/2017

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

Sincerely,

bOWtL C tVv\)

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Grant, Edward R.

Userte am: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Luis Octavio Avelar-Ramirez, A205 151 099 (BIA Jan. 18, 2017)
lJ.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A205 151 099 - Las Vegas, NV Date:

In re: LUIS OCTAVIO AVELAR-RAMIREZ

JAN 1 8 2017

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: William Joseph Marvin, Esquire

ON BEHALF OF DHS: Peter Eitel

Assistant Chief Counsel

APPLICATION: Reopening

The respondent has appealed the Immigration Judge's decision dated March 2, 2016, denying
his motion to reopen. The respondent had previously been ordered removed in absentia for his
failure to appear for the hearing on November 24, 2015. The appeal will be sustained,
proceedings will be reopened, and the record will be remanded.

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, are reviewed de novo. 8 C.F.R.
1003.1(d)(3)(i),(ii).

The Immigration Judge found that the notice of hearing for the respondent's November 24,
2015, hearing was returned to the Immigration Court because the respondent failed to notify the
Immigration Court of his change of address. The Immigration Judge determined that the
respondent did not establish a legal basis to reopen his case.

The record reflects that on December 31, 2014, the respondent filed a Form EOIR-33 with
the Las Vegas Immigration Court, indicating that his new address was 5125 Golden Ln., Las
Vegas, NV 89119 (Exh. 2). On March 23, 2015, the Las Vegas Immigration Court sent a notice
of hearing to the respondent at 5125 Garden Ln., Apt. A, Las Vegas, NV 89119, scheduling the
hearing for November 24, 2015 (Exh. 3 ). The notice of hearing was returned to the Immigration
Court with the post office label indicating "Return to Sender/ Attempted-Not Known I Unable to
Forward," and the. returned envelope also contains the following handwritten notation:
"MAYBE 5125 Golden Ln." The respondent failed to appear for the hearing on November 24,
2015, and was ordered removed in absentia.

We find that the respondent has established that he did not receive proper notice of the
hearing. The Immigration Court mistakenly sent the notice of hearing dated March 23, 2015, to
"5125 Garden Ln.," the incorrect street name. The respondent filed an EOIR-33 on
December 31, 2014, setting forth his address as "5125 Golden Ln." The in absentia order of

Cite as: Luis Octavio Avelar-Ramirez, A205 151 099 (BIA Jan. 18, 2017)
\

A205 151 099

removal also was sent to the incorrect address of "5125 Garden Ln. Apt. A." 1 Therefore, the
respondent has established that he did not receive proper notice of the hearing since the notice of
hearing dated March 23, 2015, was not sent to the respondent's correct address of record of
"5125 Golden Ln." (Exh. 2).2 The evidence of record supports the finding that the respondent
did not receive the notice of hearing through no fault of his own and the proceedings must be
reopened on this basis.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, the in absentia order of removal is rescinded, the
proceedings are reopened, and the record is remanded for further proceedings consistent with the
foregoing opinion.

1
While not relevant in our present analysis, we note that the respondent filed a new Form
EOIR-33 on February 17, 2016, reflecting his new address of"5127 Greene Ln. Apt. D."
2
The Immigration Judge's decision does not acknowledge nor address the evidence that the
notice of hearing and in absentia decision were sent to the wrong address.

2
Cite as: Luis Octavio Avelar-Ramirez, A205 151 099 (BIA Jan. 18, 2017)
 ...-..
(

UNITED STATES DEPARTMENT OF JUSTICE I

EXECUTIVE OFFICE FOR IMMIGRATION REVraw
IMMIGRATION COURT ;'4.f . , d
,.
3365 PEPPER LANE, SUITE 200
LAS VEGAS, NV 89120 f

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Law Huang International Ltd
Marvin, William Joseph
3608 E Sunset Road
Suite 110.
Las Vegs; NV 89120

Date: Mar 2, 2016

File A205-151-099
' ..
In the Matter of:
AVELAR-RAMIREZ, LUIS OCTAVIO

Attached is a copy of the written decision of the Immigration Judge.

This decision is final unless an appeal is taken to the Boad of
Immigration Appeals. The enclosed copies of FORM EOIR 26,
Notice of Appeal, and,FORM EOIR 27, Notice of Entry as Attorney or
Representative, properly executed, must be filed with the Board of
Immigration Appeals on or before
The appeal must be accompanied by proof of paid fee ($110.00).

Enclosed is a copy of the oral decision.

Enclosed is a transcript of the testimony of record.

You are granted until ________ to submit a brief

to this office in support of your appeal.

posing counsel is granted until to submit a

/.: brief in opposition to the appeal.

___ Enclosed is a copy of the order/decision of the Immigration Judge.

All papers filed with the Court shall be accompanied by proof

of service upon opposing counsel.

,.,..,,- Immigr UL
cc: ARTHUR AYO-AGRMIEN II, ESQUIRE
3375 PEPPER LANE, SUITE 200
LAS VEGAS, NV 89120
 (

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LAS VEGAS, NEVADA

Immigrant & Refugee Appellate Center, LLC | www.irac.net

)
IN THE MATTER OF )
)
Luis Octavio Avelar-Ramirez, ) File No. A205-151-099
)
Respondent. ) IN REMOVAL PROCEEDINGS
)
) Date: March 2, 2016
)
)

ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

William J. Marvin Department of Homeland Security

Attorney for Representative Office of Chief Counsel

MEMORANDUM DECISION AND ORDER OF IMMIGRATION COURT

Luis Octavio Avelar-Ramirez (respondent) was placed in removal proceedings by

the issuance of a Notice to Appear (NTA) filed with the Immigration Court. (Exh. 1.)
He was ordered removed in absentia for failing to appear at a master calendar hearing.
The respondent now seeks to reopen his case, arguing that he did not receive notice of his
hearing. As described in more detail below, the Court denies the respondent's motion to
reopen.

I. BACKGROUND AND PROCEDURAL HISTORY

Luis Octavio A velar-Ramirez is a twenty-nine year old male from Mexico. On

August 20, 2012, the DHS initiated removal proceedings against the respondent by filing
a NTA with the Court. (Exh. I.) The DHS alleged the respondent entered the United
States at or near Otay Mesa, California, on or about March 31, 2007, as a nonimmigrant
visitor with authorization to temporarily remain in the United States for no more than 6
months. (Id.) It further alleges that the respondent remained in the United States
without authorization in violation of Section 237(a)(l)(B) of the Act, as amended. (Id.)
 Order of the Court
F1le No. A205-I51-099

The respondent appeared at his first master calendar hearing on April 14, 2014. At
that hearing, a previous Immigration Judge notified the respondent of his rights in
immigration proceedings, the need to notify the Court of any change of address, and
continued the respondent's case so that he may obtain counsel. His case was continued to
January 5, 2015. A notice of hearing was provided to the respondent, and like all notices
of hearing, the respondent was warned in writing of the consequences of his failure to

Immigrant & Refugee Appellate Center, LLC | www.irac.net

appear. Due to the retirement of the previous Immigration Judge, the January 5 hearing
was cancelled and a new hearing was ultimately scheduled for November 24, 2015,
before this Court. (Exh. 3.) That notice was returned to the Court as undeliverable and
the respondent failed to appear to his November 24, 2015 hearing.

The Court sustained the factual allegations and the charge of removability, relying
on the Form 1-213 submitted by the DHS. (Exh. 4.) The respondent was ordered
removed in absentia because he failed to appear. On February 17, 2016, the respondent,
through counsel, filed a motion to reopen his case, claiming he did not receive notice of
his hearing. The DHS did not respond to the motion.

II. STATEMENT OF LAW AND ANALYSIS

Sections 239(a)(l) and (2) of the Act provide that service to an alien of a Notice to
Appear and subsequent written hearing notices "shall be given in person to the alien (or,
if personal service is not practicable, through service by mail to the alien or to the alien's
counsel of record"). No written notice of a hearing is required, however, if an alien fails
to provide the Court with an adequate address. INA 239(a)(l)(F) and 240(b)(5)(B).
An alien must provide a written record of any change of address or telephone number to
the Court. INA 239(a)(l)(F)(ii). A motion to reopen or to rescind an in absentia order
of removal may be filed at any time if the applicant demonstrates improper notice of the
hearing. INA 240(b)(5)(C)(ii); 8 C.F.R. 1003.23(b)(4)(ii) and
1003.23(b)(4)(iii)(A)(2). Proper notice of a hearing is not required if an alien fails to
update the Court with a change of address. INA 240(b)(5)(B).'

The respondent argues that he appeared at his prior hearings and was confused
because a number of the hearings were cancelled. He also claimed that he did not receive
the notice of hearing for his November 24, 2015 master calendar hearing. Despite these
assertions, the Court denies his request to reopen his case. There is direct evidence that
the respondent was aware of his obligation to notify the Court of his change of address
because he previously filed a change of address with the Court. (Exh. 2.) The fact that
the notice of hearing for his November 24, 2015 hearing was returned to the Court is of
no moment because it is the respondent's obligation to notify the Court of his change of
address. See INA 239(a)(l)(F) and 240(b)(5)(B). In fact, the respondent's failure to
notify the Court of his address is an exception to the rule that the Court must notify the
respondent of a change in his hearing. INA 239(a)(2)(B) (stating that written notice of
a change of time and place of a hearing is not required if the respondent fails to provide
Page 2 of3
 (
" Order of the Court
File No. A205-l 5 l -099

his address to the Court). Therefore, the respondent's failure to notify the Court of his
change of address does not require that his case be reopened nor does it form a legal basis
to reopen the respondent's case. 1

Accordingly, the Court enters the following Orders:

IT IS HEREBY ORDERED that the respondent's motion for to reopen his case is

Immigrant & Refugee Appellate Center, LLC | www.irac.net

DENIED;
IT IS FURTHER ORDERED that the Court's previous order removing the
respondent in absentia remains valid; and
IT IS FURTHER ORDERED that the applicant's case be returned to the DHS
for removal of the alien pursuant to the prior order of removal.

Munish Sharda
Immigration Judge

APPEAL RIGHTS: Both parties have the right to appeal the decision of the
Immigration Judge in this case. Any appeal is due in the hands of the Board of
Immigration Appeals on or before thirty calendar days from the date of service of this
decision.

CERTIFICATE OF SERVICE

THIS DOCUMENT SERVED BY: MAIL (M) P)jRSONAL SERVICE (P)

TO: ( ) ALIE ALIEN'S ATTORNEY (lJ DHS
DATE: j ;;>--('2lk BY COURTSTAFF:
/
r
f

1
For the sake of clarity, it should be noted that the record of proceedings (ROP) contains
a second change of address form filed on February 13, 2016. That change of address form was
filed well after the Court issued the in absentia order of removal.
Page 3 of3