U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204 I

DHS/ICE Office of Chief Counsel - ORL

3535 Lawton Road, Suite 100
Orlando, FL 32803

Name: AGUILAR-GARCIA, EDIBERTO

A 206-472-568

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Bassey, Aniefiok Etim

Bassey Immigration Law Center, P.A.
P.O. Box 272065
Tampa, FL 33688

Date of this notice: 5/4/2016

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

Don.nL C

t1/lA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.
Grant, Edward R.
Mann, Ana

Userteam: Docket

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Cite as: Edilberto Aguilar-Garcia, A206 472 568 (BIA May 4, 2016)
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U.S. Department of Justice

Exacutbre Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A206 472 568 - Orlando, FL

Date:

MAY - it 2U1

In re: EDIBERTO AGUILAR-GARCIA a.k.a. Ediberto Aguilar

APPEAL
ON BEHALF OF RESPONDENT: Aniefiok Bassey, Esquire
ON BEHALF OF DHS: Alexandra Rivas
Assistant Chief Counsel
APPLICATION: Reopening
The respondent, a native and citizen of Mexico, has appealed the Immigration Judge's
decision dated September 23, 2015, denying his motion to reopen. The respondent had
previously been ordered removed in absentia on May 14, 2015, for his failure to appear for his
hearing. The Department of Homeland Security (DHS) has filed a reply opposing the appeal.
The respondent's appeal will be sustained.
Upon de novo review, in light of the totality of circumstances presented in this case,
including the respondent's diligence in filing a motion to reopen, we will sustain the appeal and
allow the respondent another opportunity to appear for a hearing. See Matter of M-R-A-, 24 I&N
Dec. 665 (BIA 2008).
ORDER: The appeal is sustained, the in absentia order is vacated, proceedings are
reopened, and the record is remanded to the Immigration Judge for further proceedings.

Sil

Cite as: Edilberto Aguilar-Garcia, A206 472 568 (BIA May 4, 2016)

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IN REMOVAL PROCEEDINGS

''-'.

IN THE MATTER OF:

AGUILAR-GARCIA, Ediberto
A# 206-472-568

IN REMOVAL PROCEEDINGS

RESPONDENT
CHARGES:

Section 2I2(a)(6)(A)(i) of the Immigration and Nationality Act

("INA" or "Act"), as amended, as an alien present in the United
States without being admitted or paroled.
Section 2I2(a)(7)(A)(i)(I) of the Act, as amended, as an
immigrant who, at the time of application for admission, is not
in possession of a valid entry document as required under
section 21 l(a) of the Act.

MOTION PENDING:

Motion to Reopen

ON BEHALF OF THE RESPONDENT:

Aniefiok Bassey, Esquire
Bassey Immigration Law Center, P.A.
P.O. Box 272065
Tampa, Florida 33688

ON BEHALF OF THE DEPARTMENT:

Alexandra Rivas, Assistant Chief Counsel
U.S. Department of Homeland Security
3535 Lawton Road, Suite 100
Orlando, Florida 32803

WRITTEN DECISION AND ORDERS OF THE IMMIGRATION JUDGE

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE CHIEF IMMIGRATION JUDGE
ORLANDO IMMIGRATION COURT
ORLANDO, FLORIDA

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Respondent, is a native and citizen of Mexico who entered the United States at an
unknown location and on an unknown date, without being admitted or inspected by an

2014, the Department of Homeland Security ("OHS") personally served Respondent with an
NTA charging him as inadmissible under sections 212(a)(6)(A)(i), (a)(7)(A)(i)(I) of the Act.
Respondent acknowledged receipt of the NTA by signing it. See id. at 2. On the NTA,
Respondent provided an address of 14775 Haynes Road Lot 3 in Dover, Florida, 33527. Exh. 1
at 1. On March 12, 2015, the Court mailed a Notice of Hearing to that exact address, indicating
that Respondent was to appear for his initial master hearing on May 14, 2015, at 08:00 A.M.
Notice of Hearing (Mar. 12, 2015). This notice was returned to the Court as undelivered.
Respondent failed to appear for the hearing scheduled on May 14, 2015. Accordingly,
OHS moved for this Court to order Respondent removed to Mexico in absentia. The Court found
that the Record of Deportable / Inadmissible Alien ("Form 1-213"), see Exh. 2, was sufficient
evidence to substantiate the factual allegations in the NTA and to prove the charges of
removability by clear and convincing evidence. See Matter of Ponce-Hernandez, 22 l&N Dec.
784, 785 (BIA 1998) ("It has been held that, absent any evidence that a Form 1-213 contains
information that is incorrect or was obtained by coercion or duress, that document is inherently
trustworthy and admissible as evidence to prove alienage or deportability. ") (citing Matter of
Barcenas, 19 l&N Dec. 609 (BIA 1988)). Consequently, the Court ordered Respondent removed

to Mexico in absentia. See Decision of the Immigration Judge (May 14, 2015).
On September 21, 2015, Respondent filed a motion to reopen proceedings arguing that
his order of removal should be rescinded. See Respondent's Motion to Reopen an In Absentia
2

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immigration officer. Exh. 1, Notice to Appear ("NTA"), at 3 (Mar. 3, 2015). On October 14,

Order of Removal (Sept. 21, 2015) [hereinafter Motion to Reopen]. On September 22, 2015,
DHS filed a motion opposing the Motion to Reopen. See Department of Homeland Security's
Opposition to Respondent's Motion to Reopen (Sept. 21, 2015) [hereinafter DHS's Opposition].

Respondent argues that the order of removal entered in absentia should be rescinded and
proceedings reopened because he did not receive proper notice of his hearing in accordance with
section 239(a) of the Act. For the reasons explained below, the Court finds his argument
meritless and will therefore deny his motion to reopen proceedings.
A. Legal Standard

Under section 240(b)(5)(C) of the Act, there are two grounds upon which an order of
removal entered in absentia may be rescinded. In the instant case, the relevant ground is found in
clause (ii) of section 240(b)(5)(C) of the Act, which provides, in pertinent part, that an order of
removal entered in absentia may be rescinded "upon a motion to reopen filed at any time," if the
alien can demonstrate that he did not receive proper notice in accordance with paragraphs (1) or
(2) of section 239(a) of the Act. 1 See 8 C.F.R. I003.23(b)(4)(ii) ("However, in accordance with
section 240(b)(S)(B) of the Act, no written notice of a change in time or place of proceeding
shall be required if the alien has failed to provide the address required under section 239(a)(l)(F)
of the Act."); 8 C.F.R. 1003.15(d)(2) ("Within five days of any change of address, the alien
must provide written notice of the change of address on Form EOIR-33 to the Immigration
Court where the charging document has been filed, or if venue has been changed, to the
Immigration Court to which venue has been changed.").
1

Section 240(b)(5)(C)(ii) of the Act also provides that an order of removal entered in absentia
can be rescinded if "the alien demonstrates that [he] was in Federal or State custody and the failure to
appear was through no fault of the alien."

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II. ANALYSIS

An alien can be charged with proper notice if the notice is sent to the last address
provided by the alien. See Dominguez v. U.S. Atty Gen., 284 F.3d 1258, 1260 (11th Cir. 2002)
(stating that "notice to the alien at the most recent address provided by the alien is sufficient

addressed notice is sent via regular mail according to normal office procedures it is presumed to
have been received by the addressee. See Matter of M-R-A, 24 I&N Dec. 665 (BIA 2008). A
respondent may rebut the presumption of delivery by regular mail by submitting evidence
including, but not limited to, the following:
(1) the respondent's affidavit; (2) affidavits from family members or other
individuals who are knowledgeable about the facts relevant to whether notice was
received; (3) the respondent's actions upon learning of the in absentia order, and
whether due diligence was exercised in seeking to redress the situation; (4) any
prior affirmative application for relief, indicating that the respondent had an
incentive to appear; (5) any prior application for relief filed with the Immigration
Court or any prima facie evidence in the record or the respondent's motion of
statutory eligibility for relief, indicating that the respondent has an incentive to
appear; (6) the respondent's previous attendance at Immigration Court hearings, if
applicable; and (7) any other circumstances or evidence indicating possible non
receipt of notice.
Id. at 674.
B. Applied to the Case

The Court finds that both the NTA and the Notice of Hearing sent out on March 12,
2015, comply with the requirements set out in section 239(a) of the Act. Respondent received
that NTA in person and was further given notice orally in the Spanish language. Respondent
himself provided the address of 14775 Haynes Road Lot 3 in Dover, Florida, 33527. The Notice
of Hearing was sent to that exact address. Buat, as already noted by the Court, that Notice was
returned as undelivered.

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notice, and that there can be an in absentia removal after such notice"). When a properly

Accompanying Respondent's Motion to Reopen is an affidavit from his common-law

partner, Eloina Tellez-Marco. Ms. Tellez-Marco alleges that she resides with Respondent at
14775 Haynes Road in Dover, Florida, 33566. Motion to Reopen at 7 (emphasis added). She

and she "truly believes that [Respondent] was not aware or notified of any removal proceedings
set for May 14, 2015." While the Court is aware of the discrepancy in zip codes, the fact remains
that Respondent, upon receipt of the NTA, was charged with the obligation to maintain his
address current with the Immigration Court. The record does not contain a Form EOIR-33 or any
other evidence to apprise the Court of change in zip code.2 Accordingly, the Court finds that the
Notice of Hearing sent to the address most recently provided by Respondent-namely, 14775
Haynes Road Lot 3 in Dover, Florida, 33527-at the time he was personally served with the
NTA constitutes sufficient notice.
The Court further notes that Respondent has not filed any application for relief with the
Motion to Reopen. In a single sentence in his Motion to Reopen, Respondent states that he "will
be seeking" cancellation of removal under section 240A(b)(1) of the Act. Motion to Reopen at 4.
However, the fact remains that he has failed to file the appropriate application for relief and
supporting documentation. See 8 C.F.R. 1003.23(b)(3) ("Any motion to reopen for the purpose
of acting on an application for relief must be accompanied by the appropriate application for
relief and all supporting documentation.").

2 Moreover, as DHS has pointed out and corroborated with documentary evidence, the United
States Post Office delivers mail to either address despite the variation in zip code. See DHS's Opposition
at ,i 11.

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further alleges that she was not aware of any removal proceedings initiated against her partner,

III. CONCLUSION
Based on the above, the Court concludes that Respondent has not established a basis for
rescinding the order of removal and reopening his proceedings. Accordingly, the Court will deny

ORDERS
It is hereby ordered that Respondent's Motion to Reopen is DENIED;
It is further ordered that Respondent is be REMOVED to Mexico.
DATED this 23

A--

day of September 2015.

The Honorable Rafael B. Ortiz-Segura
Immigration Judge

cc:

Aniefiok Bassey, Esq.

Alexandra Rivas, Asst. Chief Counsel

Certificate of Service

MAIL)

TIDSDOCUMENTWAS SERVEDBY:

) ALIEN c/o Custodial Officer

r{ALIEN'S ATTY/REP/?DHS

DATE: ---------j-,;Y: COURT STAFF

Attachments:

I EOIR-33

I I EOIR-28

PERSON

I Let.s:::.;;;; [ ] Other

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his motion.