U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office ofthe Clerk
5/07 l.eeshurg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ ICE Office of Chief Counsel - SNA

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

Name: RODRIGUEZ, MOISES ALFONSO

A 205-458-035
Date of this notice: 5/29/2015

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

DOYl.ltL c
Sincerely,

t1/lA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Guendelsberger, John

Userteam: Docket

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Cite as: Moises Alfonso Rodriguez, A205 458 035 (BIA May 29, 2015)

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Albizu-Rivera, Iris Agnes

Albizu Law
PO BOX 202943
Austin, TX 78720

U..S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls 'Church, Vuginia 20530

File: A205 458 035 - San Antonio, TX

Date:

In re: MOISES ALFONSO RODRIGUEZ

MAY 192015

APPEAL
ON BEHALF OF RESPONDENT: Iris A Albizu Rivera, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of Mexico, was ordered removed in absentia on
May 15, 2013. On June 20, 2013, the respondent filed a motion to reopen proceedings, which
the Immigration Judge denied on December 2, 2013. The respondent filed a timely appeal of
that decision. The appeal will be sustained, proceedings will be reopened and the record will be
remanded.
The Immigration Judge denied the respondent's motion to reopen finding that he had not
rebutted the ''weaker" presumption of delivery that attaches to notices sent by regular mail and
that he failed to establish exceptional circumstances for his failure to appear at his hearing.
Section 240(e)(l) of the Act; 8 U.S.C. 1229(e)(l). However, we conclude that the respondent
has presented sufficient evidence to overcome the presumption of delivery in this case. The
respondent submitted a sworn affidavit in which he states he did not receive the June 14, 2012,
notice for his May 15, 2013, hearing which was sent by regular mail to the address at which he
continues to live. Moreover, upon learning of the in absentia order, the respondent acted
diligently, hired counsel and timely filed his motion to reopen proceedings. In addition, he stated
that he did appear at the Court, albeit on the wrong date and there is no evidence to suggest that
the respondent otherwise sought to avoid his scheduled hearing. See Matter ofM-R-A-, 24 l&N
Dec. 665 (BIA 2008). In reaching this conclusion we note that the presumption of regularity in
the delivery of the mail, standing alone, is not sufficient to render an alien's sworn affidavit
incredible, particularly in the circumstances presented in this case. Accordingly, we will allow
the respondent another opportunity to appear for a hearing.
ORDER: The appeal is sustained, the in absen order is rescinded, the proceedings are
reopened, and the record is remanded to the Immigratio udge for further proceedings.

Cite as: Moises Alfonso Rodriguez, A205 458 035 (BIA May 29, 2015)

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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
RODRIGUEZ, MOISES ALFONSO

FILE A 205-458-035

DATE: Jan 2, 2014

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
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
SAN ANTONIO,
OTHER:

CC: JANE THOMSON

8940 FOURWINDS DR., 5TH FLOOR
SAN ANTONIO, TX, 78239

FF

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ALBIZU, IRIS ESQ

P.O. BOX 202943
AUSTIN, TX 78720

UNITED STATES DEPARTMENT OF JUSTICE

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

RODRIGUEZ, MOISES ALFONSO

RESPONDENT
IN REMOVAL PROCEEDINGS

)
)
)
)
)
)

Case No. A205-458-035

CHARGE:

Section 237(a)(l)(B) of the Immigration and Nationality Act: after

admission as non-immigrant, remained in the United States for time longer
than permitted.

APPLICATION:

8 C.F.R. 1003.23(b): Motion to Reopen.

ON BEHALF OF THE RESPONDENT

Iris A. Albizu, Esq.
P.O. Box 202943
Austin, TX 78720

ON BEHALF OF THE GOVERNMENT

U.S. Immigration & Customs Enforcement
Office of the Chief Counsel
8940 Fourwinds Dr., 5th Fl.
San Antonio, TX 78239

WRITTEN DECISION & ORDERS OF THE IMMIGRATION JUDGE

I. Procedural History
Respondent is a forty-four year-old male, native and citizen of Mexico, who entered the
United States at or near Laredo, Texas, on or about June 6, 1999, as a non-immigrant B2 with
authorization to remain in United States for a temporary period not to exceed 6 months. Exhibit I.
On May 14, 2012, the Department of Homeland Security (OHS) personally served Respondent
with a Notice to Appear (NTA), charging him as removable pursuant to section 237(a)(l)(B) of the
Immigration and Nationality Act (the Act), as amended, after admission as non-immigrant,
remained in the United States for time longer than permitted. Id.
The NTA contains a section titled "Failure to appear" that specifies, inter alia, the
consequences of failing to provide a current, valid mailing adress and failing to appear for any
scheduled hearings. Id. The NTA contains Respondent's signature and reflects that Respondent
was advised of the consequences of nonappearance in the English and Spanish languages. Id.
On May 15, 2013, Respondent was not present for his hearing and was unavailable for
examination under oath. Notice was mailed to the Respondent at the address the Respondent gave
when he posted his bond: 1015 Twisted Creek, Kyle, Texas 78640. See Exhibit 2. The
correspondence sent to the Respondent was not returned to the Court by the U.S. Postal Service.
The Court found that the Respondent had been properly notified of the hearing. Pursuant to the

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IN THE MATIER OF

authority provided in 240(b)(5)(A) of the Act, the Court proceeded in absentia and ordered
Respondent removed from the United States to Mexico on the charge contained in the NTA. The
in absentia decision was mailed to Respondent and was not returned to the Court.

II. Motion to Reopen

An in absentia order of removal may be rescinded only (i) upon a motion to reopen filed
within 180 days after the date of the order of removal if the alien demonstrates that the failure to
appear was because of exceptional circumstances, or (ii) upon a motion to reopen filed at any time
if the alien demonstrates that she did not receive notice in accordance with paragraph (1) or (2) of
section 239(a) of the Act or the alien demonstrates that she was in Federal or State custody and the
failure to appear was through no fault of her own. Section 240(b)(5)(C) of the Act; 8 C.F.R.
1003.23(b)(4)(ii).
A.

Exceptional Circumstances

Less than 180 days passed between the date the Respondent was ordered removed in
absentia and the date the Respondent filed his motion to reopen. Accordingly, the Respondent's
motion to reopen based on exceptional circumstances is not time-barred. Id.
There is no claim of exceptional circumstances as the Respondent seeks to reopen his
removal proceedings "exclusively because he did not receive the notice of hearing." See
Respondent's Motion to Reopen. However, the Respondent does state he believed that he did not
have a court date until May 20. A notice of hearing was sent to the address provided by the
Respondent and it was not returned to the Court. Exhibit 2. The notice of hearing clearly states
that the hearing was to be held in San Antonio, TX on May 15, 2013. Id Additionally, the
Respondent claims to still live at the address he provided. See Respondent's Motion to Reopen.
The Respondent's mistaken belief that his hearing would be on May 20 is not an exceptional
circumstance.
Accordingly, the Respondent has not established that he failed to appear or attend to his
removal proceedings because of exceptional circumstances. See Section 240(b)(5)(C) of the Act; 8
C.F.R. 1003.23(b)(4)(ii).
B.

Notice

Paragraphs (I) and (2) of section 239(a) of the Act state that an alien in removal
proceedings must be provided with an NTA, and the Court must provide the alien with a
subsequent notice of hearing if the Court postpones or changes the time and place of the alien's
removal proceedings. INA 239(a). Section 239(c) of the Act also provides that "[s]ervice by
mail 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)." This is precisely what the record contains as the
notice of hearing and the Court's order were sent to the address specified by the Respondent. See
Exhibit 2.
2

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On June 20, 2013, the Respondent, through counsel, filed with the Court a motion to
reopen her removal proceedings. DHS did not file a response to the motion.

The record reveals, however, that the Court sent the Respondent written notice of his May
15, 2013 hearing on June 14, 2012 to the address he provided upon release. Exhibit 2. The notice
of hearing was not returned as undelivered. See Section 239(c) of the Act. A statement in his
affidavit, that no notice was received, is not credible considering the presumption of regularity in
the mail and considering that the U.S. Postal Service never returned the correspondence as
undeliverable. There was no evidence submitted showing that the Respondent or some other
responsible adult at his address did not receive the notice of hearing. In view of the circumstances,
the Court is not persuaded by the affidavit that the Respondent submitted. Thus, the Respondent
received notice in accordance with paragraph (1) or (2) of section 239(a) of the Act and his motion
to reopen cannot be granted for failure to receive notice. Section 240(b)(5)(C) of the Act; 8 C.F.R.
1003.23(b)(4)(ii).
Based on the totality of the circumstances, the Respondent has not established that his
notice of hearing was not received or that his failure to appear was through no fault of his own.
See Section 240(b)(5)(C) of the Act; see also 8 C.F.R. 1003.23(b)(4)(ii).
Accordingly, the following order is hereby entered:
ORDER
IT IS HEREBY ORDERED that the Respondent's motion to reopen is DENIED.

Date:

;2, 2013

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Counsel for the Respondent claims the Respondent never received notice of his hearing.
See Respondent's Motion to Reopen. Counsel for the Respondent claims that the Respondent did
not receive his notice of hearing in the mail and that the Respondent still lives at the address
provided. See id The Respondent claims that he was told that his hearing would be on May 20,
that he appeared at the Court on May 20, and that his name was not on a docket on that date. See
id at Tab B. The Respondent states that he then called the 1-800 court system number and learned
he had been ordered deported. See id. Additionally, the Respondent states he never received
notice of a court date from the Court. See id