U.S.

Department of Justice

Executive Office for Immigration Review

Board oflmmigration Appeals
Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church. Virginia 22041

DHS/ICE - Office of Chief Counsel - OKT

4400 SW 44th Street, Suite A
Oklahoma City, OK 73119-2800

Name: ESPARZA-FRAUSTO, MARCO A...

A 089-981-198
Date of this notice: 7/12/2016

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

Doruu.. C

t1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
O'Leary, Brian M.

Userteam: Docket

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Cite as: Marco Antonio Esparza-Frausto, A089 981 198 (BIA July 12, 2016)

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Langer, Steven Franklin

Langer Law, PLC
600 N Walker Ave
Ste 220
Oklahoma City, OK 73102

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

, Falls .Church, Virginia 22041

File: A089 981 198-Tulsa, OK

Date:

JUL 1 2 2016

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Steven F. Langer, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of Mexico, was ordered removed in absentia on
December 2, 2014. 1 On February 25, 2015, the respondent filed a motion to reopen proceedings,
which an Immigration Judge denied on June 25, 2015. The respondent filed a timely appeal of
that decision. The appeal will be sustained, the Immigration Judge's order will be vacated,
proceedings will be reopened and the record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the clearly erroneous standard. 8 C.F.R. I003.l(d)(3)(i), (ii) .
The Board reviews questions of law, discretion, and judgment and all other issues in appeals
from decisions of Immigration Judges de novo.
Upon de novo review of the record and in light of the totality of circumstances presented in
this case, we conclude that the respondent demonstrated that reopening is warranted. 2 See
sections 240(b)(S)(C)(i), (e)(l) of the Immigration and Nationality Act, 8 U.S.C.
1229a(b)(S)(C)(i), (e)(l). We will therefore sustain the respondent's appeal and remand the
record for further proceedings.
ORDER: The respondent's appeal is sustained, the in absentia order is vacated, proceedings
are reopened and the record is remanded to the I , gration Judge for further proceedings and
for the entry of a new decision.

The date reflected in the in absentia o de is a typographical error and the correct date is
December 2, 2014.
1

Among other factors, we have considered that the respondent's sworn affidavit, the absence of
opposition from the Department of Homeland Security as well as his possible eligibility for
voluntary departure.
2

Cite as: Marco Antonio Esparza-Frausto, A089 981 198 (BIA July 12, 2016)

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In re: MARCO ANTONIO ESPARZA-FRAUSTO a.k.a. Antonio Esparza-Frausto a.k.a. Marco

Antonio Esparza a.k.a. Jose Antonio Esparza a.k.a. Antonio Esparaza

,.
'

'

...

..

'

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

r-

IN THE MATTER OF
FILE A 089-981-198
ESPARZA-FRAUSTO, MARCO ANTONIO

DATE: Jun 29, 2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION. OF THE IMMIGRATION JUDGE. THIS .DECISION

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
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
_ ATTAC,JiED 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 FILEO 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
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242
OTHER:

CC: MERRILL-JOHNSON, MARGOT

125 E. HWY 114, STE 500
IRVING, TX, 75062

COURT CLERK
IMMIGRATION COURT

FF

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Langer Law, PLC

Langer, Steven Franklin
600 N Walker Ave
Ste 220
Oklahoma City, OK 73102

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS
IN THE MATIER OF:

RESPONDENT

IN REMOVAL PROCEEDINGS
A 089-981-198

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as

amended, in that you are an alien present in the United States without
being admitted or paroled, or who arrived in the United States at any time
or place other than as designated by the Attorney General.

APPLICATION:

Motion to Reopen

ON BEHALF OF THE RESPONDENT:

Steven F. Langer, Esq.
Langer Law, PLC
600 N. Walker Ave., Ste. 220
Oklahoma City, OK 73102

ON BEHALF OF THE DEPARTMENT

OF HOMELAND SECURITY:
Paul B. Hunker Ill, Esq.
Chief Counsel- DHS/ICE
125 E. John Carpenter Freeway, Ste. 500
Dallas, Texas 75242

WRITTEN DECISION OF THE IMMIGRATION JUDGE

I.

Factual & procedural history

The Respondent is a native and citizen of Mexico. Exhibit 1. He arrived in the United

States at an unknown date. Id. At the time of his entry, he was not admitted or paroled after
inspection by an immigration officer. Id.
On November 12, 2014, the Respondent was transported to the custody of ICE and was
placed in detention at the David L. Moss Justice Center in Tulsa, Oklahoma. See Exhibit 3. He
was then personally served with a Notice to Appear charging him with removability under
section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA or Act), as an alien present
in the United States without admission or parole. Exhibit 1.
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ESPARZA-FRAUSTO, Marco Antonio

)
)
)
)
)

On November 25, 2014, the Respondent appeared before the Dallas Immigration Court
via video. During the hearing, the Respondent acknowledged receipt of the NTA and requested
additional time to seek representation. The Court granted his request and rescheduled the

attend the hearing on December 2, 2014, in Dallas whether or not he is released from
Government custody, and that he would be ordered removed if he failed to appear.

The

Respondent indicated that he understood the Court's warnings. A Notice of Hearing was also
mailed to the Respondent at the David L. Moss Justice Center notifying him of his hearing date.
See Exhibit 2.
On December 1, 2014, the Respondent was released from Government custody. ICE
Form-830E. That next day, on December 2, 2014, the Respondent failed to appear at the
scheduled master calendar hearing. The Court noted that the Respondent had adequate notice
and proceeded in absentia pursuant to section 240(b)(5)(A) of the Act. During the hearing, the
Government counsel submitted documentary evidence, which established the truth of the factual
allegations contained in the NTA. See Exhibit 3. Based on that evidence, the Court found
removability established as charged and ordered the Respondent removed to Mexico.
On February 25, 2015, the Court received the Respondent's motion to reopen in which he
makes three separate arguments in favor of reopening. First, he claims that he did not receive
written notice of the time and place of the hearing as required by the Act. Second, he argues that
exceptional circumstances may exist warranting reopening of the proceedings.

Finally, he

asserts that he is prima facie eligible for voluntary departure. The Government has not submitted
a response.

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hearing to December 2, 2014, at 9:30 a.m. The Court advised the Respondent that he must

II.

Applicable Law & Analysis

An in absentia order may be rescinded upon the filing of a motion to reopen, filed at any
time, if an alien claims that he did not receive adequate notice of the hearing.

INA

personal service, or if personal service is not practicable, through service by mail to the alien or
to the alien's counsel of record. INA 239(a)(l). Service by mail is "sufficient if there is proof
of attempted delivery to the last address provided by the alien in accordance with subsection
(a)(l)(F)." INA 239(c). If written notice is properly addressed and sent to the alien by regular
mail according to normal office procedures, a presumption of delivery arises. Matter ofM-R-A-,
24 I&N Dec. 665, 673 (BIA 2008). Once the presumption of delivery arises, the burden is on the
alien to provide proof that the document was not received. Id. at 674.
An in absentia order may also be rescinded upon a motion to reopen filed 180 days after
an administratively final order of removal is entered if the Respondent shows "exceptional
circumstances" leading to his absence from the hearing. INA 240(b)(5)(C)(i); 8 C.F.R.
1003.23(b)(4)(iii). "Exceptional circumstances" are circumstances beyond the control of the
alien, including "battery or extreme cruelty to the alien or any child or parent of the alien, serious
illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not
including less compelling circumstances." INA 240(e)(l). This "is a difficult burden to meet."
Magdaleno de Morales v. INS, 116 F.3d 145, 148 (5th Cir. 1997). The Court must look to the
"totality of the circumstances" in deciding whether exceptional circumstances exist. In re W-F-,
21 I&N Dec. 503, 509 (BIA 1996).
Additionally, a motion to reopen may be submitted for the purpose of acting on an
application for relief. A motion based on an application for relief will not be granted unless it
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240(b)(5)(C)(ii); 8 C.F.R. 1003.23(b)(4)(iii)(2). Adequate notice can be accomplished through

states the new facts to be proved and is supported by affidavits or other evidentiary material. 8
C.F.R. 1003.23(b)(3). The alien must also show that the evidence sought to be offered is
material, was previously unavailable, and could not have been discovered or presented at the

supporting documents, and the Respondent must establish a prima facie case of eligibility. See
INSv. Abudu, 485 U.S. 94, 104 (1988); INSv. Doherty, 502 U.S. 314 (1992).
IV.

Analysis

The Respondent contends that he failed to attend his scheduled hearing because he did
not receive written notice of the hearing date. However, the record clearly indicates that a Notice
of Hearing was mailed to the Respondent at the David L. Moss Justice Center prior to his release
from custody. See exhibit 2; see also 8 C.F .R. 1003.26(d) ("Written notice to the alien shall be
considered sufficient ... if it was provided by at the most recent address provided by the alien.").
Moreover, at the November 25, 2014, hearing, the Respondent was orally advised in his native
language of his next hearing date and of the consequences for failing to appear. Thus, the Court
finds that the Respondent had adequate notice and was properly removed in absentia.
Furthermore, the Court finds that the Respondent's failure to appear at his scheduled
hearing was not due to "exceptional circumstances" as contemplated by the Act. See INA
240(e)(l). The Respondent claims that upon his release, an officer told him that his hearing
would be rescheduled. However, no evidence has been provided to support that contention other
than the Respondent's affidavit. The Court finds that the Respondent's affidavit is self-serving.
Without more, it is insufficient to establish that exceptional circumstances existed warranting
reopening of the proceedings.

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original hearing. Id. The motion must be accompanied by the appropriate application and all

Lastly, the Respondent argues that the proceedings should be reopened because he is
prima facie eligible for voluntary departure. Yet, he provided no evidence to establish his
eligibility for such discretionary relief. Therefore, based on the foregoing reasons, the following

ORDER
IT IS HEREBY ORDERED that the Respondent's Motion to Reopen i

t, /

Date:
Dallas, Texas

9-(7 1 <"

Immigration Judge

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order will be entered: