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A 087-107-915
Enclosed is a copy of the Board's decision and order in the above-referenced case.
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Sincerely,
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Mann, Ana
O'Connor, Blair
Userteam: Docket
VI
Date:
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.
Cite as: Jean Claude Pierre, A087 107 915 (BIA Nov. 2, 2016)
IN REMOVAL PROCEEDINGS
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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
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
CERTIFICATE OF SERVICE
Copies sent on
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.