W.

Suarez-Silverio, Aruro
Law Ofice of Arturo S. Suarez-Silverio
18 Ferry Street, Suite 2R
Newark, NJ 07105
Name: LITUMA, BRAULIO
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church. Vrginia 2 2041
OHS/ICE Ofice of Chief Counsel - NEW
P.O. Box 1898
Newark, NJ 07101
A077-027-270
Date of this notice: 2/11/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
King, Carol
. W
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Braulio Lituma, A077 027 270 (BIA Feb. 11, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
LITUMA, BRAULIO
A# 077-027-270
171 Belleville Street
Elizabeth, NJ 07202
Name: LITUMA, BRAULIO
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Office of the Clerk
5107 Leesb11rg Pike, S11ite 2000
Fals Ch11rch, Vrginia 22041
OHS/ICE Office of Chief Counsel - NEW
P .0. Box 1898
Newark, NJ 07101
A077-027-270
Date of this notice: 2/11/2011
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be removed
from the United States or afirms an Immigration Judge's decision ordering that you be
removed, any petition for review of the attached decision must be filed with and received by the
appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
King, Carol
,^,V,,/r,,r* , , v ,,, r,m,F ,,, ,r,r, -- -~-~ T
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Braulio Lituma, A077 027 270 (BIA Feb. 11, 2011)
U.S. Deparent of Justice
Executive Ofce fr Ingraton Review
Decision of te Board of Imgaton Appeals
Falls Curch Virginia 22041
File: A077 027 270 - Newark, NJ
I re: BRAULIO LIU
I RMOVAL PROCEEDIGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Arturo Suarez-Silverio, Esquire
ON BEHALF OF DHS: Patrcia M. Medeiros
Assistant Chief Counsel
APPLCATION: Reopening; reconsideration
FEB 11 2011
Te respondent, a citizen of Ecuador, was ordered removed fom the United States in absentia
on September 21, 2000, afer failing to appear at a hearing. He fled a motion to repen on
October 15, 2010. The Immigation Judge dened it on October 25, 2010. The respondent fled a
motion to reconsider with te Immigation Court on November 1, 2010. The Imigation Judge
denied it on November 15, 2010, and this appeal fllowed. The record will be remaded.1
Under 8 C.F.R. 1003. l(d)(3), the Board defrs to te fctual fndings of an Im gation Judge,
unless they are clearly eroneous, but it retains independent judgent and discretion, subject to
applicable goverg standards, regarding pure questions oflaw and the application of a paricular
standard oflaw to tose fcts. Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008). We fer apply
the rules fr reconsideration set frth in Matter of 0-S-G-, 24 I&N Dec. 56 (BIA 2006).
The respondent argues on appeal that he did not receive the Notice to Appear contg the
required wangs. The Imgation Judge deterined in her October 25, 2010, decision that the
respondent conceded in the motion that he had changed his address prior to the mailing of the Notice
to Appear. The Imigation Judge frther concluded that the respondent was not entitled to receive
the charging document because he did not advise the Departent of Homeland Securit (DHS) of
1 We note that the respondent's motion to reopen was fled subsequent to his removal fom the
United States. However, the Board and the Immigaton Judge retain jurisdiction to reopen these
proceedings because the respondent contends that he did not receive proper notice of a hearing
resulting the issuace of an in absentia removal order. See Matter of Bulnes, 25 I&N Dec. 57 (BIA
2009).
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Cite as: Braulio Lituma, A077 027 270 (BIA Feb. 11, 2011)
A077027 270
his updated address. The Immigration Judge based her conclusion on Ramos-Olivieri v. Att orne
General ojUS., 624 F.3d 622 (3d Cir. 2010).
Te record does not refect the respondent admitting changing his address prior to the mailing
of the Notice to Appear. The Notice to Appear was mailed to him on Febrary 23, 2000. The
respendent indicates in his afdavit that he moved fom the address refected on the Notice to
Appea in 2000. He does not indicate that he moved prior to February 23, 2000. f addition, the
Immigation Judge incorectly fund dispositve the Third Circuit's decision in Ramos-Olivieri v.
Att ore General of US., supra. The alien in that decision received the Notice to Appea containng
the reuired wags. The issue discussed therein was wheter the alien received te Notice of
Hearg.
lnMatter ofG-Y-R-, 23 I&NDec. 181 (BIA 2001), we held that entry of a in absentia order of
removal is inappropriate where the record refects that the alien did not receive, or could not be
charged with receiving, the Notice to Appear that was sered by mail at a address obtained fom
docuents fled with the DHS several years earlier. We fund that section 239(a)(l ) of the
Immigaton and Nationality Act, 8 U.S.C. 1229(a)(l ), authorizes the entry of an in absentia order
only aer the respondent receives the wangs and advisals contained in the Notice to Appea.
See Matter of G-Y-R-, supra. See also Matter of Anyel o, 25 l&N Dec. 337 (BIA 2010).
Here, the Immigration Judge did not render a fctual fnding regarding whether te respondent
received te Notice to Appea containing the required advisals. The Immigation Judge appears to
have presumed it unnecessar to do so because the respondent did not notif the DHS ofhis changed
address. However, the respondent cannot be charged with getting adequate notice under Matter
of G-Y-R- supra unless it is established that he received the Notice to Appea containing the required
wags and advisals instructing him as to his obligations to advise the Attorey General of any
change of address. The respondent's failure to update his address with the DHS does not excuse it
of its obligation to sere the respondent with the charging document. We frther note te
discretionar consideration fr denying reopening that are set frth the Immigation Judge's decision
denying the motion to reconsider. Those considerations do not perit the Immigation Judge to deny
reopening if it is established that the respondent did not receive the Notice to Appea.
We fnd it approprate to remand the record fr the Immigration Judge to deterine in the frst
instance whether the respondent was sered with the Notice to Appear. On remand, the respondent
will be required to establish wheter he was residing at the address refected on the Notice to Appear
when it was mailed. I cannot be presued that the respondent was no longer residing at his last
kown address on Febrary 23, 2000, based on his asserion that he moved in 2000. If the
respondent is unable to establish that he changed his address prior to February 23, 2000, it will then
be his burden of rebutting the weaker presumption that he received the Notice to Appea sent to h
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Cite as: Braulio Lituma, A077 027 270 (BIA Feb. 11, 2011)
A077027 270
at his lat kown address via regular mail. See Santana Gonzalez v. Att ore General of US., 506
F.3d 274 (3rd Cir. 2007); Matter of M-R-A-, 24 l&N Dec. 665 (I 2008).
Accordingly, the fllowing order will be entered.
ORER: The record is remaded fr fher proceedings consistent with the fregoing opinion.
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Cite as: Braulio Lituma, A077 027 270 (BIA Feb. 11, 2011)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
NEWARK, NJ
IN THE MATTER OF:
LITUMA, Braulio
RESPONDENT
CASE NO. A077 027 270
DECISION DENYING RESPONDENT'S
MOTION TO RECONSIDER
On November 1, 2010, Respondent filed a Motion to Reconsider, which
is opposed by the Department of Homeland Security (OHS).
Respondent denies receipt of his Notice to Appear and receipt of any
further notices of hearing. As the record reveals, Respondent was
previously removed pursuant to the same decision under examination
at this time. He alleges that prior counsel provided poor legal
advice, yet has filed no complaint or evidence of compliance with the
Board of Immigration Appeals decision in Lozada.
Providing little to support Respondent's credibility is conduct
subsequent to removal in 2008. He returned to this country the same
year and filed nothing to challenge the order. He filed nothing to
challenge the order before his unlawful return. Only now, when he
has been apprehended, has he taken up the challenge. Thus, the
sincerity or credibility of his claims of lack of notice are not
consistent with his conduct, which has been to avoid apprehension
and to flout our laws. His conduct also convinces the court that
denial of his motion as a matter of discretion would be well
supported by this record.
For all the reasons above, this court finds that the decision must be:
IT IS ORDERED that Respondent's Motion to Reconsider is DENIED.
SIGNED on November 15, 2010 at Newark, NJ.
ANNIE s. GARCY, Immigration
t
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