U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals O.ffice of the Clerk

5J 0 7 Leesbr1rg Pike, Suite 20(HJ Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel 606 S. Olive Street, 8th Floor Los Angeles, CA 90014

LOS

Immigrant & Refugee Appellate Center | www.irac.net

Name: ZUNIGA-AGUILAR, ALFONSO

A 077-312-584

Date of this notice: 10/31/2012

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

Donna Carr Chief Clerk

Enclosure
Panel Members: Miller, Neil P.

schwarzA

Userteam: Docket

Cite as: Alfonso Zuniga-Aguilar, A077 312 584 (BIA Oct. 31, 2012)

' ..

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A077 312 584- Los Angeles, CA

Date:

OCT 31 Z01Z

In re: ALFONSO ZUNIGA-AGUILAR

IN REMOVAL PROCEEDINGS CERTIFICATION ON BEHALF OF RESPONDENT: APPLICATION: Reopening Pro se

Immigrant & Refugee Appellate Center | www.irac.net

For the reasons that follow, we will certify the record to the Immigration Judge for further proceedings consistent with our decision dated May 3, 2012, including directing the Department of Homeland Security ("DHS") to address the appropriate procedure for allowing the respondent to return from Mexico so that he may be present at a future hearing. On August 31, 2011, this Board sustained the respondent's appeal from the Immigration Judge's decision denying the respondent's motion to reopen. The Board's decision rescinded the respondent's prior order ofremoval in absentia and remanded the record to the Immigration Judge for further proceedings. Our decision observed that the record was not sufficient to show that the respondent had been given proper notice ofhis last hearing. Our decision further observed that the respondent had been removed from the United States in July 2009, that evidence was presented that the respondent's United States citizen daughter had a malignant brain tumor, and that doctors had requested the respondent to be permitted to return to the United States. On remand, a new notice of hearing was mailed to the respondent at his last known United States address.' On November 23, 2011, the respondent did not appear for his hearing, and the attorney for the DHS reported that she had no information about the respondent. The Immigration Judge stated that she was issuing an order of removal in absentia because nothing had been presented to show lack ofnotice of the hearing or good cause for the respondent's failure to appear. The Immigration Judge explained that if the respondent filed a motion to reopen with the Immigration Court explaining that he was still in Mexico, or ifthe DHS reported information that the respondent was still in Mexico, she would consider reopening. On December 19, 20 J 1, an appeal was filed with the Board on behalfofthe respondent from the Immigration Judge's decision. In an appeal brief, the respondent asserted that he was still in Mexico and had not been given permission to return to the United States. In a decision dated May 3, 2012, the Board explained that it did not have jurisdiction to consider an appeal from an Immigration Judge's order of removal in absentia. See section 240(b)(5)(C) of the Immigration and Nationality

Act, 8 U.S.C. I 229b(b)(5)(C); Matter ofGuzman, 22 I&N Dec. 722 (BIA 1999). However, given

1 A statement executed by the respondent on February 28, 20 I 0, reports his address in Mexico as: Matamoros #251 Col. Anahuac Zacapo, Michoacan, Mexico.

Cite as: Alfonso Zuniga-Aguilar, A077 312 584 (BIA Oct. 31, 2012)

A077 312 584 the exceptional and unusual circumstances presented by this case, as well as the reasons presented in the appeal brief for the respondent's failure to appear at the scheduled hearing, we concluded that the appeal should be construed as a timely filed motion to reopen. The Board issued a decision returning the record to the Immigration Judge for the purpose of adjudicating the motion to reopen. Our decision specifically stated that on remand, the Immigration Judge was to require the DHS to address the appropriate procedure for allowing the respondent to be present at any future hearing. The record now before us establishes that, on remand, the Immigration Court issued a new Notice of Hearing, dated June 6, 2012, which was sent to the respondent's United States address. A hearing date of August 15, 2012, was set. The record shows that the Immigration Judge again ordered the respondent removed in absentia.2 However, our last decision contained directions other than simply to schedule another hearing at which the respondent would be unable to be present. There is nothing in the record before us showing that the Immigration Judge directed the DHS to address the appropriate procedure for allowing the respondent to return from Mexico and to be present at a future hearing. Accordingly, we will certify the record to the Immigration Judge for further proceedings consistent with our decision dated May 3, 2012. ORDER: The record is certified to the Immigration Judge for further proceedings consistent with the foregoing opinion and the Board's decision dated May 3, 2012.

Immigrant & Refugee Appellate Center | www.irac.net

<

i-----FOR THE BOARD

2 An "appeal" from this decision was filed with the Board on behalf of the respondent on September 17, 2012.

Cite as: Alfonso Zuniga-Aguilar, A077 312 584 (BIA Oct. 31, 2012)

--

--

UNITED STATES DEPARTMENT IMMIGRATION COURT 606 SOUTH OLIVE ST. LOS ANGELES, CA

OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

90014

ZUNIGA-AGUILAR, RESEDA, CA.

ALFONSO APT#204

6650 RESEDA BLVD., 91335

Immigrant & Refugee Appellate Center | www.irac.net

IN THE MATTER OF ZUNIGA-AGUILAR, ALFONSO

FILE A 077-312-584

DATE:

Aug 15,

2012

UNABLE TO FORWARD

NO ADDRESS PROVIDED THIS DECISION

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. WITHIN 3 0 CALENDAR DAYS _OF THE DATE OF THE SEE THE YOUR NOTICE OF APPEAL, MUST BE MAILED TO: ATTACHED DOCUMENTS, OFFICE OF THE CLERK P.O. BOX 8530 VA 22041 FALLS CHURCH, X MAILING OF

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. BOARD OF IMMIGRATION APPEALS THIS WRITTEN DECISION.

AND FEE OR FEE WAIVER REQUEST : -

ATTACHED IS A COPY OF THE-DECISION OF THE IMMIGRATION JUDGE AS THE RESULT 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) SECTION 1252B(c) (3) 8 TO REOPEN, OF THE IMMIGRATION AND NATIONALITY ACT, IN REMOVAL PROCEEDINGS. WITH THIS COURT: 8 U.S.C. IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6), IF YOU FILE A MOTION OF YOUR FAILURE

u.s.c. SECTION 1229a(c) (6)

YOUR MOTION MUST BE FILED

IMMIGRATION COURT 606 SOUTH OLIVE ST. CA 90014 LOS ANGELES, X OTHER:

INABSENTIA ORDER.

FF CC: RAZVI, 606 S. RUBAB, ESQ. 8th FLOOR CA, 90014 OLIVE STREET,

LOS ANGELES .

'

UNITED STATES DEPARTMENT OF ,JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIElv IM_"'IIGRATION COURT LOS ANGELES, IN THE MATTER OF: ZLTNIGA-}\.GUILAR, ALFONSO CASE NO. RESPONDENT IN REMOVAL PROCEEDINGS DECISION CALIFORNIA DATE: Aug

15, 2012

A077-312-584

Immigrant & Refugee Appellate Center | www.irac.net

Jurisdiction was established in this matter by the filing of the No t i ce to

Appear issued by the Department of Homeland Security, Executive Office for respondent. See 8 C.F.R. with the Immigration Review and by service upon the

1003.14(a),

103.Sa. date and for other

The respondent was provided written notification of the time, location of the respondent's removal hearing. than exceptional circumstances,

The respondent was alsc

provided a written warning that failure to attend this hearing,

would result in the issuance of an order of the respondent iailed to appear

remcval in the respondent's absence provided that removability was established. Despite the written notification provided, at his/her hearing, falure to appear. to section 240 (b) This heang was, (A) and no exceptional. circumstances were shown for his/her threfore, conducted in absentia pursuant of the Immigration and Nationality Act.

(5)

At a prior hearing the responden admitted the factual allegations in the Notice to Appear and conceded rernovability. removabiliy established as charged. The Department of Ho1ueland Security evidence of the factual submitted documentary I I find

relating to the respondent which established the truth allegations contained in the Notice to Appear.

find removability established as charged. I further find that the respoderit's failure to appear and proceed with

any applications for relief from removal constitutes an abandonment of any pending applications and any applications the respondent may have been eligible to (BIA 1969); file. Those applications are deemed abandoned and See Matter of Pearson, 433 (BIA Perez, denied for lack of prosecution. 20 I&N Dec. Matter of

547

(BIA

1992).

19 I&N Dec.

1987);

13 I&N Dec.

152

Matter of R-R,

ORDER:

The respondent shall be removed to MEXICO or in the on the charge(s)

alternative to

contained in the Notice to Appear.

cc:

Assistant District Counsel _Z\ttorney for Respondent/Respor:.dent

/J'W
I:nn1igration Judge Zl