U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike. Suite 2000

Falls Church, Virgm1a 22041

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Scott, Paul Hugh OHS/ICE Office of Chief Counsel - HLG
The Scott Law Firm, LLC 1717 Zoy Street
10636 Linkwood Ct. Harlingen, TX 78552
Baton Rouge, LA 70810

Name: NIETO VILLALOBOS, NATALIA A 206-956-594

Date of this notice: 10/24/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Kelly, Edward F.
Grant, Edward R.
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Natalia Nieto Villalobos, A206 956 594 (BIA Oct. 24, 2017)
"
I
U.S. Department of Justice Decision of the Board of Immigration Appeals
ExeC\ttive Office for Immigration Review

Falls Church, Virginia 22041

File: A206 956 594 - Harlingen, TX Date:

OCT 2 2017
In re: Natalia NIETO VILLALOBOS

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Paul Hugh Scott, Esquire

ON BEHALF OF DHS: Luciana Dubuc

Assistant Chief Counsel

APPLICATION: Reopening

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's decision
dated April 4, 2017, which denied her motion to reopen and rescind the in absentia order of
removal entered on February 22, 2016. The Department of Homeland Security (DHS) filed a brief
in opposition to the appeal. The appeal will be sustained.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003. l(d)(3)(i). We review
all other issues, including issues of law, discretion, or judgment, under a de novo
standard. 8 C.F.R. 1003.l(d)(3)(ii).

On appeal, the respondent argues that she never received her Notice to Appear and that she
was not given adequate notice of the consequences of failing to change her address, that she was
misled by a notario, and that she was unaware of the in absentia hearing (Respondent's Br. at 4, 8).
The respondent contends that she should not have been ordered removed without notice (/d.).

The respondent's declaration in support of her motion to reopen states that after entering the
United States she met a "notario" who helped her to fill out forms to get work authorization but
did not inform her that she had filled out an asylum application (U at 2-3; Motion to Reopen at
Exhibit A). The respondent's asylum application was filed with USCIS on February 24, 2015, and
it provided her address of record as 564 Paseo St., Rio Grande City, TX 78582 (Exh. 1). The
respondent also states that she was not informed by the notario or anyone else that she was required
to provide her new address to the United States Citizt:nship and Immigration Services (USCIS) if
she moved (Motion to Reopen at Exhibit A). The respondent conceded that she received a
biometrics appointment letter, which was mailed to her address of record, and that she attended
the appointment on March 10, 2015 (Motion to Reopen at Exhibits A and E at tab E, Form I-797C,
Notice of Action).

On January 15, 2016, the DHS mailed the Notice to Appear to the respondent at her address of
record, 564 Paseo St., Rio Grande City, TX 78582 (Exh. 2). On January 21, 2016, the DHS mailed
the Notice of Hearing to the respondent at the address of record (Exhs. 3-4). The Notice of Hearing
informed the respondent of the time and place of the hearing in her case to be held on

Cite as: Natalia Nieto Villalobos, A206 956 594 (BIA Oct. 24, 2017)
A206 956 594
t

February 22, 2016 (Exh. 4). The respondent did not appear at the hearing and therefore, the
Immigration Judge ordered her removed in absentia.

On February 14, 2017, the respondent filed a motion to reopen, which the Immigration Judge
denied. The Immigration Judge found that the respondent was properly charged with receipt of
the Notice to Appear because she admitted that she received the biometrics appointment letter

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dated March 3, 2015, and she appeared for the appointment on March 10, 2015. The biometrics
letter warned the respondent of her obligation to inform USCIS in writing of any change of address
(IJ at 2; Motion to Reopen at Exhibit E, Form l-797C, Notice of Action). The respondent did not
inform the DHS of her updated address. The NTA and the Notice of Hearing were sent to the last
known address that appeared on her asylum application, and NTA and the Notice of Hearing were
not returned as undeliverable. Therefore, the Immigration Judge concluded that the respondent
was properly ordered removed in absentia on February 22, 2016 (U at 2-3).

In Matter ofG-Y-R-, 23 l&N Dec. 181, 192 (BIA 2001), we held that "an Immigration Judge
may not order an alien removed in absentia when the Service [DHS] mails the Notice to Appear
to the last address it has on file for an alien, but the record reflects that the alien did not receive the
Notice to Appear, and the notice of hearing it contains, and therefore has never been notified of
the initiation of removal proceedings or the alien's obligations under section 239(a)(l) of the Act."
We noted that an alien cannot be properly charged with constructive notice of his or her address
obligations in accordance with.section 239(a)(l)(F) of the Act, until the alien is informed of his or
her address obligations as contained in section 239(a)(l)(F). That information is contained in the
NTA, which the respondent in this case claims she never received because it was sent to an address
she had provided almost 1 year earlier, where she no longer resided. Matter ofG-Y-R-, 23 l&N
Dec. at 190; See also Matter ofAnyelo, 25 l&N Dec. 337, 339 (BIA 2010) (Board determined that
our holding in Matter ofG-Y-R- should be applied to cases arising in the Eleventh Circuit). The
address provided on the respondent's asylum application, which was used on the biometrics letter
and the NTA, is not an address provided in accordance with section 239(a)(l)(F) of the Act.

We conclude that the respondent in the instant case cannot be charged with having received
adequate notice under Matter ofG-Y-R-, 23 l&N Dec. at 190, because she did not receive the NTA
containing the required warnings and advisals concerning her obligations to advise the
Immigration Court and DHS of any change of address. Accordingly, the following order will be
entered.

ORDER: The appeal is sustained, and the Immigration Judge's decision is vacated. The order
of removal entered in absentia, on February 22, 2016, is rescinded.

FURTHER ORDER: The record is remanded for the Immigration Judge for further
proceedings and the entry of a new decision consistent with the foregoing opinion.

2
Cite as: Natalia Nieto Villalobos, A206 956 594 (BIA Oct. 24, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
2009 WEST JEFFERSON AVENUE, SUITE 300
HARLINGEN, TEXAS 78550

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IN THE MATIER OF:

NATALIA NIETO VILLALOBOS CASE NO. A206 956 594

RESPONDENT
IN REMOVAL PROCEEDINGS

MEMORANDUM AND ORDER

On February 14, 2017, Respondent, through her counsel of record Paul

H. Scott, filed a motion to reopen this removal proceeding. The removal order
was issued in this case on February 22, 2016 based upon a removal hearing
conducted in absentia on that same date pursuant to section 240(b)(5)(A) of the
Immigration and Nationality Act (the Act). The Department of Homeland
Security (DHS) has not filed a response to the motion to reopen.

On January 15, 2016, OHS mailed Respondent's Notice to Appear to her

in accordance with section 239(a)(l) of the Act. It was mailed to the address
she provided for herself on her Application for Asylum and Withholding of
Removal (Form I-589) filed with DHS on February 24, 2015. (Exh. 1 and 2.)
That address is 564 Paseo Lindo St., Rio Grande City, TX 78582. On January
21, 2016, the Court mailed a hearing notice for Respondent's February 22,
2016 removal hearing to that same address. (Exh. 4). That hearing notice was
not returned to this Court by the United States Postal Service as undeliverable.
The Court concludes that this constituted proper notice to Respondent of her
February 22, 2016 removal hearing. Section 239(a)(l) of the Act; 8 C.F.R.
1003.18(b); 8 C.F.R. 1003.26(c) and (d).

In Respondent's declaration submitted with her motion to reopen,

Respondent states the following. When Respondent entered the United States,
she met with a "notario" who helped her fill out forms to get work authorization
in the United States. The "notario" did not tell Respondent that the papers
filled out for Respondent included an application for asylum, or what would
happen after the papers she filled out were filed with USCIS. Respondent
received a notice and attended a biometrics appointment on March 10, 2015.
Respondent later moved, and Respondent was not informed by the "notario" or

1
 ,..

anyone else that Respondent was required to provide her new address to
USCIS. The only reason Respondent did not attend her court hearing was that
she did not receive notice because she moved before the notice was sent. At
the time of the hearing, Respondent was on "doctor ordered bed rest" for the
remainder of her pregnancy and she would not have been able to attend court
on that day.

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In Respondent's declaration submitted with her motion to reopen, she
does not state whether she received her Notice to Appear mailed to her by OHS.
In that declaration, Respondent does not state when she moved from 564 Paseo
Lindo St., Rio Grande City, Texas 78582. In any event, in her declaration
submitted with her motion to reopen, Respondent states that she received
notice and attended a biometrics appointment on March 10, 2015. With her
motion to reopen, Respondent submitted a copy of that biometrics appointment
notice (Form I-797C, Notice of Action) that she received from OHS. (Motion to
Reopen, Tab E.) That notice states the following:

Pursuant to Section 265 of the Immigration and Nationality Act,

you are required to notify the USCIS, in writing, of any address
changes, within 10 days of such change. If you were placed in
removal proceedings before an Immigration Judge, you are also
required to notify the Immigration Court having jurisdiction over
your case of any change of address within 5 days of such change,
on Form EOIR-33. Include your name, signature, address, and
USCIS A# on any written notice of change of address. The USCIS
will use the last address you provided for all correspondence, and
you are responsible for the contents of all USCIS correspondence
sent to that address. Failure to provide your current address as
required may result in dismissal or referral of your asylum
application, institution of removal proceedings, the entry of a
removal order in your absence if you fail to appear for a hearing
before an immigration judge, and removal from the United States.
If you have any questions or comments regarding the status of
your application, please contact the office with jurisdiction over
your application. If you have any questions regarding this notice,
please call 1-800-375-5283.

This notice was mailed to Respondent at the address 564 Paseo Lindo St., Rio
Grande City, Texas 78582 and Respondent received it and attended the
appointment. The Court finds that USCIS is U.S. Citizenship and Immigration
Services of the OHS as stated at the top of Form I-797C received by
Respondent. (Motion to Reopen, Tab E.) The Court concludes that this Form
I-797C, Notice of Action, received by Respondent fully explained to her the
requirements regarding sending her change of address to users and the
Immigration Court and, therefore, Respondent had actual notice of those
obligations. In her declaration submitted with her motion to reopen,

2
Respondent does not state that she ever informed USCIS or this Court of the
address to which she moved, and she has not presented any other evidence
showing that she did so on or before the date of her removal order issued on
February 22, 2016. The Court concludes that this is the reason that
Respondent did not receive notice of her February 22, 2016 removal hearing,
and that the reason for her failure to appear at that hearing was not due to the
"notario" who helped her fill out her application for asylum and withholding of

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removal.

The United States Court of Appeals for the Fifth Circuit has held that,
even though an alien does not receive actual notice of a removal hearing, a
removal order entered in absentia should not be rescinded where the failure to
receive actual notice of the removal hearing was due to the alien's neglect of his
obligation to keep the Court apprised of his current mailing address. See
Lopez-Dubon v. Holder, 609 F.3d 642, 647 (5th Cir. 2010), cert. denied, 131
S.Ct. 2150 (2011); Gomez-Palacios v. Holder, 560 F.3d 354, 360-61 (5th Cir.
2009). In such circumstances, the Fifth Circuit has held that this does not
mean that the alien "did not receive notice" under section 240(b)(5)(C)(ii) of the
Act. Gomez-Palacios v. Holder, supra, at 360. The Court finds that this is what
occurred in the present case whether or not Respondent received a copy of her
Notice to Appear mailed to her by OHS. The Court concludes that this is what
occurred in her case if she did not receive her Notice to Appear because she
moved from 564 Paseo Lindo St., Rio Grande City, Texas 78582 before the
Notice to Appear was mailed to her and she did not advise USCIS of her new
address. The Court concludes that this is also what occurred in her case if she
did receive the Notice to Appear but moved from that address prior to the Court
mailing the hearing notice to her for her February 22, 2016 removal hearing
because she did not inform USCIS or the Court of her new address.

Based on all of the above, the Court concludes that Respondent has not
demonstrated that she did not receive notice of her February 22, 2016 removal
hearing in accordance with section 239(a)(l) of the Act. See also 8 C.F.R.
1003.18(b). Accordingly, the Court concludes that Respondent's removal order
should not be rescinded. Section 240(b)(5)(C)(ii) of the Act; 8 C.F.R.
1003.23(b)(4)(ii).

In addition, the Court concludes that Respondent's statement in her

declaration that, at the time of her hearing, she was on "doctor ordered bed
rest" for the remainder of her pregnancy and would not have been able to
attend court on that day is contradicted by the evidentiary material submitted
with her motion to reopen. In the motion to reopen, Respondent's attorney
states that Respondent was pregnant during the time she was ordered removed
in absentia and cites "Tab F Birth Certificate of Respondent's Child" to support
that contention. However, the Court finds that the only birth certificate
submitted with Respondent's motion to reopen states that Respondent's child

3
was born on November 19, 2015. (Motion to Reopen, Tab F.) The Court finds
that this was three months prior to Respondent's February 22, 2016 removal
hearing which resulted in her removal order entered in absentia.

Respondent also requests reopening to apply for asylum under section

208 of the Act, withholding of removal under section 24 l(b)(3) of the Act, and
withholding of removal pursuant to the Convention Against Torture. The Court

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concludes that the motion to reopen for this purpose is untimely because it
was not filed within 90 days of the date of entry of the final administrative
order of removal. Section 240(c)(7)(C)(i) of the Act; 8 C.F.R. 1003.23(b)(l).
Respondent has not shown, or even contended, that her motion to reopen to
apply for asylum under section 208 of the Act, withholding of removal under
section 241 (b)(3) of the Act, and withholding of removal pursuant to the
Convention Against Torture is exempt from this time limitation because it is
.
based on changed country conditions arising in Mexico since the date of her
removal order. Section 240(c)(7)(C)(ii) of the Act; 8 C.F.R. 1003.23(b)(4)(i);
Matter of S-Y-G-, 24 I&N Dec. 247, 253 (BIA 2007), aff'd, 546 F.3d 138 (2d Cir.
2008).

Respondent also requests that the Court reopen the removal proceeding
sua sponte. The Court concludes that Respondent has not demonstrated that
her case involves an exceptional situation which warrants reopening on the
Court's own motion. See Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999); Matter
of J-J-, 21 I&N Dec. 976, 984-85 (BIA 1997).

WHEREFORE, it is hereby Ordered that Respondent's motion to reopen

be denied.

1_1 4t'1
Dated this + day of April, 2017.

HOWARD E. ACHTSAM
IMMIGRATION JUDGE

HEA/djc