Jacob, Michael L., Esq.

Law Ofice of Michael L. Jacob

15420 Smoland Lane NE., Suite A
Bainbridge Island, WA 98110
U.S. Department of Justice
Executive Offce fr Immigration Review
Board of Immigration Appeals
Qfce of the Clerk
5107 leesburg Pike, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - POO
1220 SW Third Avenue, Suite 300
Portland, OR 97204
Name: TOSCANO-CERVANTES, BERTIN A 205-297 -907
Date of this notice: 10/20/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Guendelsberger, John
Adkins-Blanch, Charles K.
Hofman, Sharon
Sincerely,
Do Ct
Donna Carr
Chief Clerk
Userteam: Docket
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For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Bertin Toscano-Cervantes, A205 297 907 (BIA Oct. 20, 2014)
U.S. Department of Justice
Executive Ofce fr I igation Review
Decision of te Boad of Im igation Appeals
Falls Chuch, Vigiia 20530
File: A205 297 907 - Porlad, OR Date:
OCT 20 2014
In re: BERTIN TOSCANO-CERVANTES a.k.a. Bertin Cervantes-Toscao
I REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RSPONDENT: Michael L. Jacob, Esquire
ON BEHALF OF DHS:
CHARGE:
Gina C. Emmauel
Assistat Chief Counsel
Notice: Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.C. 1182(a)(6)(A)(i)] -
Present without being admtted or paoled
APPLICATION: Reopening
The respondent, a native ad citizen of Mexico, has appealed fom the Immigration Judge's
April 9, 2014, decision denying hs motion to reopen his removal proceedings. Te respondent
was ordered removed in absentia on Febrary 24, 2014. Te Depaent of Homeland Security
(DHS) seeks sumay a rmance of te Immigration Judge's decision.
1
The appeal will b
sustained, te proceedings will be reopened, ad the record will be remaded.
We review fr clea eror the fndings of fct, including te deterination of credibility,
made by te Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i) (2013). We review de novo all oter
issues, including whether the paies have met the relevant burden of proof, ad issues of
discretion ad judgment. 8 C.F.R. 1003.l(d)(3)(ii).
The DHS initiated removal proceedings by fling a Notice to Appea (NTA) at the Tacoma
Immigration Cou on August 14, 2012 (I.J. Dec. at 1; Ex. 1). Te respondent subsequently
appeaed wit cousel fr a master calenda heaing at te Seattle Imigraton Cou on
November 20, 2013 (l. J. Dec. at 1). Dung this master calenda heang, the respondent
admited te fctal allegations, conceded removability, ad requested a chage of venue to te
Portlad Immigation Cou (l.J. at 1 ). In addition, the audio records of tis agency indicate that
the respondent's atorey stated that the respondent intended to apply fr asylum, protection
under te Convention Against Torre, ad cacellation of removal.
1 We do not fnd tt suay afrace is appropriate in tis case.
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Cite as: Bertin Toscano-Cervantes, A205 297 907 (BIA Oct. 20, 2014)
A205 297 907
The heaing notice, dated November 26, 2013, states that the respondent's heaing would be
held at the Portlad Immigration Cou on Febry 24, 2014, and indicates that it was mailed to
the respondent's atorey of record (Ex. 3). The address listed on te notice is te sae as the
address where the atorey received correspondence fom the Seatle Imigraton Cou
(l.J. at 2; Ex. 3). Te record does not contan a reted envelope. Neither te respondent nor
his atorey appeaed fr the Februy 24, 2014, hearing at the Porlad Immigraton Cou.
Accordingly, the Immigraton Judge entered a in absentia order of removal.
The respondent fled a motion to reopen on March 24, 2014. Te motion to reopen alleges
that te respondent did not receive notce of his Februay 24, 2014, heag. Te motion also
included a applicaton fr cancellation of removal, a Pettion fr Alien Relative (For I-130),
ad declarations fom te respondent and his attorey stating that neiter received notice of te
hearing. Te Immigration Judge denied te motion to reopen, fnding tat actual notice was sent
to the respondent's counel ad te respondent had not rebutted the weaker presumption of
delivery by regula mail (l.J. at 2).
Te hearing notice was sent to the respondent's atorey via regula mail. Accordingly, a
presumption of efective service applies, but tis presumption is considerably weaker tha the
presumption applied when notice is sent via cerifed mal. See Sembiring v. Gonalez,
499 F.3d 981 (9th Cir. 2010); Mater of M-R-A-, 24 l&N Dec. 665, 673 (BIA 2008). Te
Immigration Judge fund that the respondent had not rebutted this weaker presuption, stating
that there wa no evidence of non-receipt of the notice oter ta counsel's declaaton that he
did not receive it (I.J. at 2). However, the record also contained a declaation fom te
respondent, evidence that the respondent was seeking various frs of relief fom removal, ad
evidence tat the respondent had appeaed fr a previous hearing.
The United Sttes Cour of Appeals fr the Ninth Circuit has explained that "[i]n te tpical
regula mal cae, te only proof of non-receipt beyond the respondent's statement tat he or she
did not receive notice ... will be circumsttial evidence." Sembiring v. Gonalez, supra, at 988
(interal quotations omitted). Tus, adjudicators shoud consider evidence such a: te
respondent's afdavit; afdavits fom other individuals; the respondent's actions upon leag of
the in absentia order, and whether due diligence was exercised in seekng to redress the matter;
any applications or prima fcie eligibility fr relief, indicating that te respondent had a
incentive to appea; and the respondent's previous atendace at Imigration Cour heangs.
Mater of M-R-A-, supra, at 674; accord Sembiring v. Gonzalez, supra, at 988-891.
The respondent appeared fr his initial heaing at the Seattle Immigraton Cour. At that
hearing, the respondent indicated that he planed to seek asylum, protection under the
Convention Aganst Tortre, and cancellation of removal. The applications submited wit the
motion to reopen suppor the respondent's intention to apply fr relief fom removal, ad
consequently hs motivation to appear fr his heag. Additionally, te respondent ad his
atorey both submitted declarations stating they did not receive notice of the heaing. Finally,
te respondent submited a motion to reopen, along with supporing evidence, within one month
of te issuance of the in absentia order. This evidence strongly indicates that neiter te
respondent nor his attorey received notice of the heaing and is sufcient to overcome te
presumption tat the notice was efectvely served via regula mal.
2
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Cite as: Bertin Toscano-Cervantes, A205 297 907 (BIA Oct. 20, 2014)
t
'A205 297 907
Accordingly, te fllowing order will be entered.
ORER: Te appeal is sustaned, te in absenta order of removal is rescinded, te
proceedings ae reopened, ad te record is remanded fr fer proceedings consistent wt te
fregoing opinion.
3
_ _ . Q .... P . . .
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Cite as: Bertin Toscano-Cervantes, A205 297 907 (BIA Oct. 20, 2014)
` .
m
UITED STATES DEPARTMENT OF JSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1220 .SW 3RD AVUE, . SU.TE 500
PORTLD, OR 97204
Law Office of Michael L. Jacob
Jacob, Michael Lucien
15420 Smoland Lane N Suite A
Bainbridge Island, WA 98110
IN THE MTTER OF
TOSCAO-CERVATES, BERTIN
FIL A 205-297-907
UALE TO FORWA - NO ADRESS PROVIDED
TACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JDGE. THIS DECISION
IS FINA UESS A APPEAL IS FILED WITH THE BOA OF IMIGRATION APPEALS
WITHIN 30 CALENAR DAYS OF THE DATE OF THE MILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPAING YOU APPEA.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, A FEE OR FEE WAIVER REQUEST
MST BE MILED TO: BOAD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE A THE RESUT
OF YOUR FAILURE TO APPEA AT YOUR SCHEDULED DEPORTATION OR REMOVA HEAING.
THIS DECISION IS FINA ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION A NATIONAITY 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 REMOVA PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
CC: EMAUEL, GINA
IMMIGRTION COURT
1220 SW 3RD AVNE, SUITE 500
PORTLD, OR 97204
1220 SW 3rd Avenue, Suite 300
PORTLD, OR, 97204

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In the Mater of
UNITED STATES DEPARTMENT OF JSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
PORTLAND, OREGON
Bertin TOSCANO-CERVANTES,
File Nuber: A 205-297-907
Respondent.
IN REMOVAL PROCEEDINGS
Chage: INA 212(a)(6)(A)(i): Present without admission or parole
Application: Motion to reopen
On Behalf of Respondent:
Michael L. Jacob
Attorey at Law
15420-A Smolad Lane NE
Bainbridge Islad, WA 98110
On Behalf of ICE:
Gina C. Emauel
Assistt Chief Counsel
1220 SW Third Avenue, Suite 300
Portlad, OR 97204
RULING OF THE IMMIGRATION JUDGE
I. Introduction & Procedural Histor
The Depament of Homelad Security ("DHS") initiated removal proceedings by fling a
Notice to Appea ("NTA") against Respondent, Bertin Toscao-Cervates, with te Tacoma,
Washingon, Imigation Cou on August 14, 2012. Ex. I. Te NTA alleged that Respondent
is a native and citizen of Mexico ad that he entered the United States on a unkow date at an
uown location without admission or paole afer inspection by an imigration ofcer. Id.
Based on these allegations, DHS chaged Respondent with removability under section
212(a)(6)(A)(i) of the Immigation ad Nationaity Act ("INA" or "Act"). At a mater calendar
heang on November 20, 2013, befre the Seatle, Washington, Immigration Cou, Respondent
appeared with counsel. He admited the fctual allegations ad conceded the chage of
removabilit. The court sustained the charge and ganted a change of venue to Porlad. On
November 26, 2013, the Portlad cou mailed Respondent's counsel notice of te next heaing
to be held on Febray 24, 2014. Ex. 3. Respondent ad cousel bot filed to appear at that
heaing. None of the hearing notices in the record were ever reted to te cour. Based upon
tis evidence, on February 24, 2014, the Immigation Judge ordered Respondent removed to
Mexico in absentia. On March 24, 2014, Respondent, through counsel, fled a timely motion to
reopen ad rescind the order. For the reasons that fllow, the motion is denied.
A 205-297-907
Page 1 of3
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II. Discussion
The Immigration Cou may upon its ow motion at ay time, or upon motion of te
Goverent or te alien, reopen ay case i which it has made a qecision, uless jusdicton is
vested wit the Boad oflmigration Appeals ("BIA" or "Boad"). 8 C.F.R. 1003.23(b)(l).
When a respondent does not appear fr a heaing, te Goverent may allege tat proper notice
was given. Matter of Lopez-Barrios, 20 I&N Dec. 203 (BIA 1990). If the IJ is satisfed that
sufcient notice was provided, then an in absentia heaing may be held. An in absentia order
may be rescinded where a alien fles a motion to reopen within 180 days and establishes that the
failue to appea was becaue of "exceptional circumstaces," or at ay time where the alien
establishes that she did not receive notice. 8 C.F.R. 1003.23(b)(4)(ii); see Sembiring v.
Gonales, 499 F.3d 981, 989 (9th Cir. 2007). "A motion to reopen is a traditional procedural
mechasm in imigation law wit a basic puose that has remained constat -to give aliens a
meas to provide new infration relevat to their cases to the immigration autorities." Meza
Vallejos v. Holder, 669 F.3d 920, 924 (9th Cir. 2012) (interal quotation maks ad citation
omitted); see also Oyeniran v. Holder, 672 F.3d 800, 808 (9th Cir. 2012).
Due process requires notice of a immgration hearing tat is reasonably calculated to
reach the interested paies. See Khan v. Ashcroft, 374 F.3d 825, 828 (9t Cir. 2004); Flores
Chavez v. Ashcrof, 362 F.3d 1150, 1155-56 (9th Cir. 2004); Farhoudv. INS, 122 F.3d 794, 796
(9th Cir. 1997). A petitioner does not have to actually receive notice fr due process to be
satisfed, but actal notice is, however, sufcient. Farhoud, 122 F.3d at 796. Notice to cousel
is suffcient to establish notice to the applicat. See Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir.
2000) (per curia); Matter of Rivera-Claros, 21 l&N Dec. 599, 602 (BIA 1996); Matter of
Barocio, 19 I&N Dec. 255, 259 (BIA 1985); INA 240(b)(5); 8 U.S.C. 1229(a)(2). A
presumption of efective service applies to notices sent by regula mal. Sembiring v. Gonales,
499 F.3d 981, 987 {9t Cir. 2007). The presumption applies if te notice of heaing was properly
addressed, had suffcient postage, ad was properly deposited in the mails. See Busquets-l vars v.
Ashcrof, 333 F.3d 1008, 1010 (9th Cir. 2003). The presumption of service may be overcome
only if the respondent presents "substatial ad probative evidence" that he did not receive te
notice. Arrieta v. INS, 117 F.3d 429, 431 (9th Cir. 1997) (per cua). A respondent may be
chaged with notce where te method of service is "reasonably caculated" to ensure tat notice
reaches him. Matter of M-D-, 23 I&N Dec. 540, 547 (BIA 2002).
Actual notice was sent to Respondent's counsel. The notice of heaing was not reted
in the mail. It was sent to counsel's current address, the sae addess at which he acknowledges
tat he has received corespondence fom the court in Seatle. Respondent, tough Counsel, had
notice of te heang. Respondent has faled to demonstate either lack of notice or exceptional
circumstaces such tat the matter should be reopened. There is no explaation fr the failue to
appea other tha cousel's declaation tat he did not receive te notice of heaing.
Considering, "on a cae-by-case basis, whether the respondent has presented sufcient evidence
to overcome te weaer presumption of delivery ... by regula mail," I conclude that Respondent
has not done so. See Matter of M-R-A-1 24 I&N Dec. 665, 674 (BIA 2008). The cou had
juisdiction to conduct te heaing in absentia and properly fud by clea, unequivocal, ad
convincing evidence tat Respondent had such suffcient notice. Therefre, tere is no bais
upon which to grant te motion fr lack of notice, and ultimately Respondent has faled to
A 205-297-907
Page 2 of 3
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demonstrate ay frther exceptional circumstances such that the mater should be reopened. See
Chete-Juarez v. Ashcrof, 376 F.3d 944 (9th Cir. 2004); Singh v. INS, 295 F.3d 1037 (9th Cir.
2002). Additionally, if Respondent wishes to fle a motion to reopen based upon inefective
assistace of cousel, he must frst comply with the requirements of Matter of Lozada, 19 I&N
Dec. 637, 638 (BIA 1988).
Lastly, the circustces in tis case ae not appropriate fr sua sponte reopening.
Respondent's motion is accompaed by a "proposed" application fr cancellation of removal
ad an I-130 petition. However, this is not ay new evidence ad I do not fnd tat these
submissions demonstate the type of circumstances appropriate fr te exercise of te court's sua
sponte authorit. Such authorit is used "sparingly, teating it not as a general remedy fr
hadships created by enfrcement of the time ad nuber limits in te motions regulations, but
as a extraordinay remedy reserved fr truly exceptional situations. " Mater of G-D-, 22 l&N
Dec. 1132, 1133-34 (BIA 1999). To fnd otherwise would ignore te statutory ad regulatory
deadlines, which ae designed to bring fnality to immigration proceedings. See, e. g., INS v.
Dohert, 502 U.S. 314 (1992). For these reaons, the motion to reopen is denied.
ORDER
IT IS HERBY ORDERD that Respondent's motion to reopen is DENIED.
Any appeal of ths decision is due to the BIA in not less tha 3 0 calendar days (
Date
A 205-297-907
Page 3 of 3
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