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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Office of the Clerk
5/07 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - MIA


333 South Miami Ave., Suite 200
Miami, FL 33130

Name: PIERRE, JEAN CLAUDE

A 087-107-915

Date of this notice: 11/2/2016

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

DoYUtL ca.AA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Mann, Ana
O'Connor, Blair

Userteam: Docket

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Militello, Ross A., Esq.


Kurzban Kurzban Weinger Tetzeli & Pratt,
P.A.
2650 SW 27th Avenue, 2nd Floor
Miami, FL 33133

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index
Cite as: Jean Claude Pierre, A087 107 915 (BIA Nov. 2, 2016)

VI

u.s. Department of Justice

Decision of the Board of Immigration Appeals

Exeutive Office for Immigration Review


Falls Church, Virginia 22041

Date:

File: A087 107 915 - Miami, FL


In re: JEAN CLAUDE PIERRE

NOV ... 2 2016

ON APPEAL
ON BEHALF OF RESPONDENT: Ross A. Militello, Esquire
ON BEHALF OF OHS:

Maria T. Annas
Assistant Chief Counsel

APPLICATION: Reopening

The respondent has appealed the Immigration Judge's decision dated June 2, 2015, denying
his motion to reopen. The Immigration Judge had previously ordered the respondent removed in
absentia for his failure to appear at the hearing on January 15, 2014. We review an Immigration
Judge's findings of fact for clear error, but questions of law, discretion, and judgment, and all
other issues in appeals, de novo. 8 C.F.R. 1003. l(d)(3)(i), (ii).
We have considered the totality of the circumstances presented in this case, and find that the
evidence is sufficient to establish that the respondent did not receive proper notice of the hearing
below. Thus, reopening and rescission of the in absentia removal order is therefore warranted.
See Matter ofAnyelo, 25 I&N Dec. 337 (BIA 2010); Matter of G-Y-R-, 23 l&N Dec. 181 (BIA
2001). Accordingly, the following orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: These proceedings are reopened, the in absentia order of removal is
vacated, and the record is remanded to the Immigration Court for further proceedings.

FOR THE BOARD

Cite as: Jean Claude Pierre, A087 107 915 (BIA Nov. 2, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
333 SOUTH MIAMI AVE., STE.700
MIAMI, FL 33130

Date: Jun 3, 2015


File A087-107-915
In the Matter of:
PIERRE, JEAN CLAUDE
Attached is a copy of the written decision of the Immigration Judge.
This decision is final unless an appeal is taken to the Board of
Immigration Appeals. The enclosed copies of FORM EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or
Representative, properly executed, must be filed with the Board of
Immigration Appeals on or before
The appeal must be accompanied by proof of paid fee ($110.00).
Enclosed is a copy of the oral decision.
Enclosed is a transcript of the testimony of record.
You are granted until ________ to submit a brief
to this office in support of your appeal.
Opposing counsel is granted until
brief in opposition to the appeal.

...

to submit a

Enclosed is a copy of the order/decision of the Immigration Judge.


All papers filed with the Court shall be accompanied by proof
of service upon opposing counsel.

.cc: Maria T. Armas, OHS ATTORNEY

333 SOUTH MIAMI AVE #6566


MIAMI, FL 33130

Sincerely,

----- HP---------

Immigration Court Clerk

UL

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Larry R. Fleurantin & Assoc., P.A.


Fleurantin, Larry R
2040 NE 163rd Street
Ste 209
North Miami Beach, FL 33162

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
MIAMI, FLORIDA
)
)

Jean Claude Pierre


Respondent

)
)

File No. 087 107 915


IN REMOVAL PROCEEDINGS

)
)

DECISION ON MOTION TO REOPEN


The respondent, through counsel, filed a Motion to Reopen ("MOTION") on December
8, 2014 for the Court to consider the respondent's request for adjustment of status. The
Department Of Homeland Security ("DHS") has filed an opposition response on February 4,
2015.
The Court has reviewed the record of proceedings ("ROP) and that on August 14, 2009
the respondent was granted conditional resident status and on July 7, 2011 the respondent and his
spouse filed a Form I-751, Petition to Remove Conditions on Residence ("1-751") before the
U.S. Citizenship And Immigration Services ("USCIS"). The respondent and his spouse failed to
appear for their interview so the respondent's Form I-751 was denied and the respondent was
issued a Notice To Appear ("NTA'') on October 31, 2013. The NTA was mailed to the
respondent at the last address furnished by him to the USCIS. On December 10, 20I3the Court
also mailed a master calendar hearing notice to the last address furnished by the respondent to
the USCIS. The Court's notice mailed out on December 10, 2013 was not returned to the Court
by the U.S. Postal Service ("USPS"). The respondent failed to appear for his proceedings on the
scheduled hearing date of January 14, 2014 so the Court went forward in absentia. The
respondent's copy of the in absentia order was mailed out to the respondent on January 16, 2014
and it was returned to the Court on January 27, 2014 by the USPS with the notations: "RETURN
TO SENDER; NOT DELIVERABLE AS ADDRESSED; UNABLE TO FORWARD".

The respondent's I-751 was filed on July 7, 2011, after the effective date of the Real ID
Act. The instructions to the I-751 specifically call for applicants to notify the USCIS of any
changes of address. The respondent's motion contains a statement by the respondent which
provides no information about the I-751 previously filed by the respondent and the statement
makes no mention of the respondent ever providing any change of address notices to USCIS.
There is no proof the respondent ever provided the USCIS the required notices of changes of
address. The respondent's statement simply offers that the respondent did not appear for his

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In The Matter of

hearing because he did not know that he was in removal proceedings until he sought to adjust
status based on a marriage to a second U.S. citizen spouse. The respondent's statement makes
no reference to his prior marriage nor does it explain steps the respondent took following the
filing ofthe I-751.

Under the facts and circumstances herein, the Court finds that the respondent was
properly provided notice of the hearing date, time and location and he did not appear on January
15, 2014. Without proofthat the respondent provided notice ofhis changes ofaddress, the Court
finds further that the respondent's bare-bone assertion that he did not receive notice ofthe
hearing insufficient to warrant a reopening ofthe proceedings. As the Court finds the hearing
notice was properly mailed, the Court finds that the motion to reopen was not timely filed. The
Court finds further that the respondent has not demonstrated that within the one ofthe exceptions
to the filing deadlines. See 8 CFR I003.23(b)(4).
The Court desires to avoid even the slightest hint ofbias or impropriety which could be
seen as insinuated by the respondent's counsel in the motion to reopen. For the record, the Court
would point out that the Court's "relationship" with the respondent's counsel does not extend
beyond counsel's appearance before the Court in the due course of representing respondents.
Accordingly, the respondent's motion to reopen is hereby DENIED. It is further
ORDERED that the respondent's request for stay ofremoval is hereby DENIED.
Dated: June 2, 2015

Immigration

10, 2015 to:

CERTIFICATE OF SERVICE

L Respondent; .:l,_ Respondent's Counsel; A-Assistant ChiefCounsel

Copies sent on

Legal Assistant, Imourt

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The respondent was aware that he initiated a process to remove the conditions on his
residence when he filed the I-751. There is no showing that the respondent took steps to
determine the status ofthe application and that he took steps to notify the USCIS ofhis changes
ofaddress. Section 239(c) of the Immigration and Nationality Act ("ACT") states that service by
mail is sufficient ifthere is proofofattempted delivery to the last address provided by an alien.
Notice ofthe hearing is not even required, pursuant to Section 240(b)(5)(B) of the Act, where a
respondent failed to provide address information.

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