U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesburg Pi!t--e. Suite 200() Falls Church. Virginia 22041

Wong, Margaret W., Esq. Margaret W. Wong & Associates CO LPA 3150 Chester Ave. Cleveland, OH 44114-114

OHS/ICE Office of Chief Counsel - BAL 31 Hopkins Plaza, Room 1600 Baltimore, MD 21201

Immigrant & Refugee Appellate Center | www.irac.net

Name: RICHARDS, DEXTER BERNARD

A 098-582-406

Date of this notice: 11/16/2012

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

DOYutL ct1/IAJ
Donna Carr Chief Clerk

Enclosure
Panel Members: Guendelsberger, John
Hoffman, Sharon Adkins-Blanch, Charles K.

Lulseges

Userteam: Docket

Cite as: Dexter Bernard Richards, A098 582 406 (BIA Nov. 16, 2012)

U.S. Department of Justice Executive Office for Immigration Review

Falls Church,

Decision of the Board of Immigration Appeals

Virginia 22041
-

File:

A098 582 406 Baltimore, MD

Date:

NOV I l.Z

In re: DEXTER BERNARD RICHARDS

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Margaret Wong, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Veronica N. Puvak Assistant Chief Counsel

APPLICATION: Reopening

The respondent, a native and citizen of Trinidad and Tobago, was ordered removed in absentia on September 14, 2005. On October 24, 2011, the respondent filed a motion to reopen proceedings, which the Immigration Judge denied on December 5, 2011. The appeal will be sustained, proceedings will be reopened and the case will be remanded. The record reflects that the Notice to Appear (NTA) and notice for the September 14, 2005, hearing were mailed to the respondent by regular mail on July 13, 2005, to his address listed in his September 2004, Form 1-485, Application to Register Permanent Resident or Adjust Status. In a sworn affidavit the respondent states that he did not receive the NTA or notice for his hearing. He submitted three additional affidavits attesting to the fact that he moved and was not living with his wife in 2005. Consequently, the record does not est.ablish that the respondent was informed of his address obligations prior to his move. Considering the totality of circumstances presented in this case, we conclude that reopening is warranted under Matter ofG-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, and could not be charged with receiving, the NTA that was served by mail at an address obtained from documents filed with the Service several years earlier. We found that section 239(a)(I) of the Immigration and Nationality Act, 8 U.S.C. 1229(a)(I), authorizes the entry of an in absentia order only after the respondent receives the warnings and advisals contained in the Notice to Appear. See Matter of G-Y-R-, supra. ORDER: The proceeding s are reopened and the record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and the entry of a new decision.

Cite as: Dexter Bernard Richards, A098 582 406 (BIA Nov. 16, 2012)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT BALTIMORE, MARYLAND 21201

Immigrant & Refugee Appellate Center | www.irac.net

IN THE MATTER OF

IN REMOVAL PROCEEDINGS

DEXTER RICHARDS
RESPONDENT

CASE # A098-582-406

CHARGES:

INA 237 (a) (l)(B) (I) Nonimrnigrant overstay

Motion to Reopen to Rescind Prior in Absentia Order ofRemoval

APPLICATIONS:

ON BEHALF OF RESPONDENT:

ON BEHALF OF DHS:

Margaret Wong, Esq. Margaret Wong & Associates Co. LPA

3150 Chester Avenue

Joey Caccarozzo, Esq. Asst. District Counsel, DHS

31 Hopkins Plaza, 7h Floor

Cleveland, Ohio 44114

Baltimore, MD 21201-2825

MEMORANDUM OF DECISION AND ORDER

Respondent has filed the above cited Motion which is opposed by the DHS. The Motion is denied for the following reasons: Respondent was served the Notice to Appear (NT A) at his address of record. It was not returned and deemed to have been delivered. See Matters ofG (BIA 2010).
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Y - R (BIA 2001) and Angelo

Respondent alleges that he moved; however, there is no evidence beyond his affidavit which establishes a new address prior to the issuance of the NTA. Further, the order of the court was mailed to the Respondent at his address of record and not returned. Respondent failed to comply with the statute which requires notice of change of address to
DHS and the court if proceedings begin.

Immigrant & Refugee Appellate Center | www.irac.net

DONE and ORDERED this

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