U.S.

Department of Justice
Executive O ffice for Immigration Review
Board of immigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Cl111rch, Virginia 2204 I

DHS/ICE Office of Chief Counsel - SNA

8940 Fourwinds Drive, 5th Floor
San Antonio, TX 78239

Name: HERRERA, YURIS ISMARY

A 098-559-063

Date of this notice: 3/17/2016

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

DQn.JtL

C{1_/VL)

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
O'Leary, Brian M.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Yuris Ismary Herrera, A098 559 063 (BIA April 8, 2016)

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Aguinaga, .Melissa, Esq.

Legal Center for Immigration
& Naturalization Serv
520 N. Semoran Boulevard
Suite 240
Orlando, FL 32807

'U.S. Department of Justice

I,

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A098 559 063 - San Antonio, TX

Date:

In re: YURIS ISMARY HERRERA

APPEAL
ON BEHALF OF RESPONDENT: Melissa Aguinaga, Esquire
ON BEHALF OF OHS: Cori White
Assistant Chief Counsel
APPLICATION: Reopening

The respondent, a native and citizen of Mexico, was ordered removed from the United States
in absentia on June 23, 2005, after not appearing at a hearing. She appeals from the Immigration
Judge's decision dated October 17, 2014, denying her October 2, 2014, motion to reopen. 1
Under the totality of the circumstances, we are persuaded by the respondent's argument that the
Immigration Judge should have exercised his sua sponte authority to reopen these proceedings.
See 8 C.F.R. 1003.23(b)(l). See also Matter ofJ-J-, 21 I&N Dec. 976 (BIA 1997).
Accordingly, the following order will be entered.
ORDER: The appeal is sustained, the in absentia order of removal is rescinded, these
proceedings are reopened, and the record is remanded for further proceedings consistent with the
foregoing opinion.

The Immigration Judge's decision contains a typographical error, inasmuch as it states that the
decision was issued on October 17, 2013.

Cite as: Yuris Ismary Herrera, A098 559 063 (BIA April 8, 2016)

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IN REMOVAL PROCEEDINGS

..

.. -........._,,

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

IN THE MATTER OF
HERRERA, YURIS ISMARY

FILE A 098-559-063

DATE: Oct 20, 2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
ifTTACHED
is FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS 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
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT

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
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207
OTHER:

CC: CARMEN A. LEAL

8940 FOURWINDS DR., 5TH FLOOR
SAN ANTONIO, TX, 782971939

COURT CLERK
IMMIGRATION COURT

FF

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Michaelangelo Rosario Immigration Attorneys

Aguinaga, Melissa
635 North Hyer Avenue
Orlando, FL 32803

..............

UNITED STATES DEPARTMENT OF JUSTICE

Executive Office for Immigration Review
Immigration Court

)
)
)
)

In the Matter of

In Removal Proceedings

)
)

Yuris lsmary Herrera

)
)

Order of the Immigration Judge

The respondent in the above captioned case was scheduled for a Master Docket hearing before the Immigration
Court on June 23, 2005 and did not appear. At the request of counsel for the Department of Homeland Security, a
hearing was conducted in the respondent's absence and she was ordered removed. The respondent, through
counsel, has subsequently filed a motion to reopen the proceeding, alleging that she had not received notice of her
hearing, thereby meeting the requirement for reopening under 240(b)(5){C)(ii) of the Act. The motion will be
denied.
With respect to the issue of notice to the respondent, proper notice of the hearing was mailed to the address
provided by the respondent as required under 239{a)(2)(A) and 239(c) of the Act. The notice was returned as
undeliverable by the United States Postal Service. The Notice to Appear served on the respondent on November 24,
2005 contained the address of the court in San Antonio, Texas and specific instructions for notifying the court at that
address with Form EOIR - 33 (provided to the respondent) should any change or correction of address occur and
giving the respondent the consequences of failure to do so. Oral notice was given to the respondent in Spanish of
the consequences of failure to app.ear. A change of address signed by the respondent was received by the court May
6, 2005. The hearing notice was sent to the respondent on May 18, 2005 at the identical address as that given on
the change of address. The hearing notice to the respondent was returned by the United States Postal Service with
the notation NO SUCH NUMBER". I find that notice properly sent to the address provided by the respondent and
returned by the United States Postal Service marked "NO SUCH NUMBER" is sufficient and requires the court to
proceed in absentia. "Service by mail under this section shall be sufficient if there is proof of attempted delivery to
the last address provided by the alien in accordance with subsection {a)(l)(F)." See 239(c) of the Act. That is
precisely what this record contains. See also Matter of Grijalva, 21 l&N Dec. 2 7 (BIA 1995). It is the respondent's
responsibility to provide any new or corrected address to the court within 5 days. Title 8 CFR l003. l5(d)(l) & (2).
The motion to reopen filed October 2, 2014 provides a corrected address almost ten years after the fact and in
another state. The United States Postal Service reference internet site confirms that the address as presented by
respondent in May, 2005 does not exist and therefore is not valid for notice purposes under the act. The
11

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File A098 559 063

respondent has not given any record of what addresses she has actually been at or how many different addresses she
has had. The Board of Immigration Appeals in Matter of M - R - A - 24 l&N Dec. 665 (BIA 2008) dealt with the
question of adjudicating motions to reopen involving the presumption of delivery of documents sent by regular mail.
This case does not involve presumptions in any way. Rather, the record makes clear that the respondent's notice of
her hearing was not delivered, but was returned to the court as undeliverable. The plain language of the statute has
been met on this record and the respondent was given the notice of her hearing specified by the statute. Where the
respondent provides an invalid or undeliverable address and fails to provide notice to the court of any changes or
corrections to the address as required by law and regulation [Title 8 CFR 1003.1 S(d), 239(a)(l )(F)(ii) of the Act]
then the proof of attempted delivery contained in this record is conclusive notice to the respondent. Where the
respondent has not provided an valid address for notice purposes, no notice is required. See Gomez-Palacios v.
Holder, 560 F. 3rd 354 (5th Cir. 2009). Where the respondent did not timely file a motion to reopen or provide any
valid address, reopening for "exceptional circumstances" is not available. Any deferred action, prosecutorial
discretion, or other exercise of priorities by the USICE or OHS is outside of and independent of the authority of the
Immigration Court. Any of these actions can be taken prior to, at any stage of, or subsequent to removal
proceedings and would not provide any justification to reopen the proceedings. Where she has only attempted to
contact the court upon re-apprehension by USICE sua sponte reopening will not be considered. I find that the
motion presented does not meet the requirements for reopening under Title 8 CFR 1003.23(b)(4)(ii). I therefore
find that the requirements for reopening have not been met on this record and the motion to reopen shall be and is
hereby DENIED. SO ORDERED.
1

Gary Burkholder
Immigration Judge

CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAI
PERONAL SERVIC
.
TO: [ 1 ALIEN 1 I .4lEN c/o Custodial Offic
er

'(frMlf

T'/REP rToHS

DATE: \0
: COURT.STAFfu
Attachments: [ J EOIR-33 [ ] EOIR-28
[ J Legal Services List [ J Other

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Date: October 17, 2013

Place: San Antonio, Texas