U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

qfflce of the Clerk

5107 Leesburg Pike, S11ite 2000

Falls Church. Virginia 22041

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San Miguel, Alejandro J., Esq. OHS/ICE Office of Chief Counsel - HLG
Valdez, Martinez & Monarrez 1717 Zoy Street
207 North 15th St. Harlingen, TX 78552
McAllen, TX 78501

Name: GARCIA-GARCIA, JUAN A 087-175-395

Date of this notice: 4/18/2017

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

Sincerely,

-1
0,;_ '"'-

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Juan Garcia-Garcia, A087 175 395 (BIA April 18, 2017)
.. . U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A087 175 395 - Harlingen, TX Date:

APR 1 8 2017
In re: JUAN GARCIA-GARCIA

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Alejandro J. San Miguel, Esquire

ON BEHALF OF DHS: Kristen Hitchner

Assistant Chief Counsel

APPLICATION: Reopening

The respondent has appealed the Immigration Judge's September 20, 2016, decision denying
his motion to reopen his removal proceedings after the issuance of an in absentia order of
removal. The respondent's appeal, which is opposed by the Department of Homeland Security,
will be sustained, and the record will be remanded for further proceedings.

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.l(d)(3).

The record reflects that the Notice to Appear (NTA) was sent to the respondent by certified
mail on April 21, 2010 (Exh. 1). The NTA informed the respondent that he had to appear at an
unscheduled hearing to be held at the Harlingen Immigration Court in Texas (Exh. 1). A hearing
notice was sent to the respondent on April 30, 2010, by regular mail informing him that he was
scheduled for a hearing at the Harlingen Immigration Court on November 2, 2010. As the
respondent did not appear for his hearing on November 2, 2010, the Immigration Judge ordered
him removed in absentia.

On August 15, 2016, the respondent filed a motion to reopen. The Immigration Judge noted
that the respondent had not rebutted the weaker presumption of delivery of the hearing notice
sent to him by the Immigration Court for his November 2, 2010, hearing, where the respondent
had submitted a letter with his motion to reopen stating that he did not receive the hearing notice
for that date or the in absentia order of removal (I.J. at 2). See Matter of M-R-A-, 24 I&N Dec.
665, 673-75 (BIA 2008). Specifically, in deeming the respondent's letter insufficient to
demonstrate non-receipt, the Immigration Judge noted that the respondent "did not challenge the
accuracy of the address" used by the Immigration Court to mail him the hearing notice (I.J. at 2).

On appeal, the respondent contends that he did not receive proper notice in accordance with
section 239(a) of the Immigration and Nationality Act, 8 U.S.C. 1229(a), and that he has met
the evidentiary standard set forth in Matter of M-R-A-, supra. See Respondent's Brief at 4-5.
We find that this case is governed by our decision in Matter of G-Y-R-, 23 I&N Dec. 181 (BIA
2001). In that case, we held that entry of an in absentia order of removal is inappropriate where
the record reflects that the alien did not receive, or could not be charged with receiving, the
Cite as: Juan Garcia-Garcia, A087 175 395 (BIA April 18, 2017)
A087 175 395

Notice to Appear that was served by mail at an address obtained from documents filed with the
Department of Homeland Security several years earlier.

In the instant case, the respondent's Form 1-213 dated October 23, 2009, lists the address to
which the respondent's Notice to Appear and the hearing notice were sent (Exh. 2). The Form 1-
213 also indicates that the respondent's Form 1-485 and a Form 1-130 filed on his behalf were

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denied on October 17, 2008. The NTA was not served by certified mail at the respondent's
listed address until approximately 18 months after the applications were denied. 1 Furthermore,
the record does not indicate that the respondent was attempting to avoid removal proceedings.
See Hernandez v. Lynch, 825 F.3d 266, 269-71 (5th Cir. 2016). We note that when the
respondent does not appear for a hearing, there remains an uncertainty as to whether the
respondent received the address notification warnings set forth in the Notice to Appear. We
conclude that the respondent did not receive adequate notice under Matter of G-Y-R-, because he
did not receive, and cannot be charged with receiving, the Notice to Appear. We therefore find
that proceedings should be reopened pursuant to our decision in Matter of G-Y-R-, supra. See
also Hernandez v. Lynch, supra, at 270-71 (holding that the Board's conclusion that alien failed
to rebut the presumption of notice without considering all relevant evidence, including
circumstantial evidence, was an abuse of discretion); Matter of M-R-A, supra, at 674; Matter of
C-R-C-, 24 I&N Dec. 677 (BIA 2008). Consequently, we will sustain the respondent's appeal
and remand the record for further proceedings. Accordingly, the following order shall be
entered.

ORDER: The appeal is sustained, the in absentia order of removal is rescinded, the
proceedings are reopened, and the record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.

1
We note that the NTA was served by certified mail, return receipt requested. However, the
record does not contain a return receipt card showing that the NTA was received by the
respondent.

2
Cite as: Juan Garcia-Garcia, A087 175 395 (BIA April 18, 2017)
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UNITED STATES DEPARTMENT OF JUSTICE

,j EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT t ,
2009 W. JEFFERSON AVE, STE 3tf0. ,._ \
HARLINGEN;': TX 78550 j\ :1>':.,

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Valdez, Martinez & Monarrez
San Miguel, Alejandro Jose
207 North 15th St.
McAllen, TX 78501

IN THE MATTER OF FILE A 087-175-395 DATE: Sep 20, 2016

GARCIA-GARCIA, JUAN

_ ,NABLE TO FORWARD - NO ADDRESS PROVIDED . 1_1

J/_ ATTACHEDIS 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 THI WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE,: WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK :1 f
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT t'

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) OF THE IMMIGRATION AND 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 REMOVAL PROCEEDINGS. IF--YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRATION COURT
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550

OTHER:

tdtrRT CLERK
IMMIGRATION COURT FF
CC: ASSISTANT CHIEF COUNSEL
1717 ZOY ST.
HARLINGEN, TX, 785520000
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
HARLINGEN IMMIGRATION COURT-
HARLINGEN, TEXAS "'\

IN THE MATTER OF ) Septembet), 2016

)

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JUAN GARCIA-GARCIA ) File Number: A 087-175-395
)
Respondent. ) In Removal Proceedings

APPLICATIONS: Motion to Reopen

ON BEHALF OF THE RESPONDENT ON BEHALF OF THE GOVERNMENT

Alejandro San Miguel Assistant Chief Counsel
Law Offices of Valdez & Monarrez, PLLC U.S. Department of Homeland Security
207 North 15th Street 1717 Zoy St.
McAllen, TX 7850 I Harlingen, TX 78552

DECISION OF THE IMMIGRATION JUDGE

On November 2, 2010, the Court ordered Respondent removed to Mexico in absentia

pursuant to section 240(b)(5)(A) of the Immigration and Nationality Act. On August 15, 2016,
Respondent filed a motion to reopen his removal proceeding, arguing that he did not receive
notice of his November 2, 2010 removal hearing. The respondent's motion to reopen will be
denied.

The record reflects that the respondent was served via certified mail with the Notice to
Appear on April 21, 2010. INA 239(a)(l). The Court mailed the respondent a hearing notice
on April 30, 2010 to the address listed on the Notice to Appear. The record does not contain
evidence that this notice was returned as undeliverable. This constituted proper notice to the
respondent of his November 2, 2010 removal hearing. Section 239(a)(2)(A) of the Act; 8 C.F.R.
1003.18(b); 8 C.F.R. 1003.26(c) and (d). It is noted that the Court's Decision containing the
removal order was mailed to the respondent at that same address on November 2, 2010 and it
was not returned to the Court by the United States Postal Service as undeliverable.

In his affidavit submitted in support of the motion to reopen, the respondent asserts that
he was never aware that he was in removal proceedings.

In Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008), the Board of Immigration Appeals
held that where a hearing notice is properly addressed and sent by regular mail according to
normal office procedures, there is a presumption of delivery, but it is weaker than the
presumption applied to delivery by certified mail. The Court must consider all relevant evidence
in determining whether this weaker presumption of delivery has been rebutted, which includes
both circumstantial and corroborating evidence. In Matter of M-R-A-, supra, at 674, the Board
set forth some examples of factors that can be considered in making this determination, but
emphasized that these are just examples of the types of evidence that can support a motion to
reopen. See also Matter ofC-R-C-, 24 l&N Dec. 677 (BIA 2008).

The Court finds that the respondent has not overcome the presumption of delivery
attached to delivery by regular mail set forth in Matter of M-R-A-. The Court mailed a notice
informing the respondent that his hearing had been scheduled for November 2, 2010. INA
239(a)(l). This notice was addressed and mailed according to normal office procedures to the

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respondent's most recent address under section 239(a)(l)(F) of the Act. INA 240(b)(5)(A).
The letter submitted by the respondent is insufficient to demonstrate that the hearing notice was
not received. The respondent does not challenge the accuracy of the address used by the Court to
mail the respondent the hearing notice. The respondent does not claim that he was living at the
address at the time the Notice of Hearing was mailed nor does he provide a statement from
anyone else living at the address who would have personal knowledge about whether the Notice
of Hearing was received at that address at that time. Based on all of the above, the Court
concludes that the respondent's removal order should not be rescinded and his removal
proceedings reopened based on lack of notice. INA 250(b)(5)(C)(ii).

The respondent also seeks reopening in order to apply for adjustment of status. The
respondent's motion to reopen is accompanied by evidentiary materials demonstrating that the
respondent is the beneficiary of an approved visa petition filed by his United States citizen wife.
Although a motion to reopen can be based upon a pending or approved 1-130 petition, certain
requirements must be met, including that the motion must be timely. See Matter of Velarde
Pacheco, 23 I&N Dec. 253, 256 (BIA 2002). Here, the motion was filed well after the ninety
day period in which a motion to reopen must be filed. See 8 C.F.R. 1003.23(b)(l). As such, the
respondent's removal proceedings should not be reopened on this basis.

Finally, the Court concludes the circumstances of this case do not warrant the exercise of
the Court's limited discretion to reopen sua sponte. See Matter of J-J, 21 l&N Dec. 976 (BIA
1997). The fact that an alien has become potentially eligible for some form of relief from
removal due to the passage of time, without more, is not ordinarily sufficient to warrant
reopening sua sponte. See Matter ofYauri, 25 I&N Dec. 103 (BIA 2009).

Accordingly, the following orders shall be entered:

X----=--
ORDER: The respondent's motion to reopen is DENIED.

David Ayala
United States lmtlnrgJ'atltOfl

CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAI PERSONAL SERVIC
TO: ( ) ALIE_N ALIEN C/O CUSTODIAN LIEN'S T /REP
DATE: l -o,'J.t)fb BY: COURT STAF
ATTACHMENTS: ( ) EOIR-33 ( ) EOIR-28 ( ) L GAL E VICES LIST ff OTHER

APPEAL FORMS
2