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Enclosed is a copy of the Board's decision and order in the above-referenced case.
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Cynthia L. Crosby
Deputy Chief Clerk
Enclosure
Panel Members:
Cole, Patricia A.
Greer, Anne J.
Pauley, Roger
Userteam: Docket
SEP 2 9 2017
In re: Pedro Antonio AVALOS JARQUIN
APPEAL
APPLICATION: Reopening
On February 10, 2017, an Immigration Judge denied the lead respondent's motion to reopen
and rescind his April 5, 2016, in absentia order of removal. The lead respondent, a native and
citizen of El Salvador, now appeals. 1 The appeal will be sustained, and the record will be
remanded.
In general, an alien may file one motion to reopen, and any such motion must be filed within
90 days of the entry of the final administrative order of removal. Section 240(c)(7)(A), (C)(i) of
the Immigration and Nationality Act, 8 U.S.C. 1229a(c)(7)(A), (C)(i); 8 C.F.R. 1003.23(b).
The Act and regulations provide an exception to the general rule in the case of an alien who seeks
to rescind an in absentia order of removal. An in absentia removal order may be rescinded upon
motion to reopen filed at any time if the alien demonstrates that he or she did not receive notice of
the hearing in accordance with sections 239(a)( l ) or (2) of the Act, 8 U.S.C. 1229(a)( l ) or (2).
Section 240(b)(5)(C)(ii) of the Act; Matter ofGuzman, 22 I&N Dec. 722, 722-23 (BIA 1999).
The record reflects that the Notice of Hearing was sent by regular mail. See Matter ofM-R-A-,
24 l&N Dec. 665 (BIA 2008) (providing the framework for evaluating a motion to reopen
following an in absentia order when the notice of hearing was sent by regular mail). The
Immigration Judge acknowledged that the Notice of Hearing was returned to the Immigration
Court for an insufficient address. He concluded, however, that the lead respondent did not
overcome the presumption of notice because he did not claim that the notice was sent to an
incorrect address (IJ at 3). Id. at 674. The Immigration Judge also denied the motion because the
lead respondent failed to include an application for relief (IJ at 3).
We will reverse the Immigration Judge's denial of the motion. As the Immigration Judge
recognized, the record reflects that the Notice of Hearing was returned to the Immigration Court
and was stamped "insufficient address" (Respondent's Br. at 13). The lead respondent sought
reopening within 6 months of the in absentia order, which demonstrates that the lead respondent
exercised due diligence in seeking to redress the situation upon learning of the in absentia removal
order. Id. With the motion, the lead respondent also submitted evidence that he filed an asylum
Further, the lead respondent's failure to include his asylum application with the motion to
reopen does not alter our conclusion that reopening is warranted (U at 3). We have stated that
once a basis for reopening has been established, the alien retained the right to present his asylum
claim at a full evidentiary hearing, regardless of whether prima facie eligibility for relief had been
shown (Respondent's Br. at 15). Matter of Ruiz, 20 l&N Dec. 91 (BIA 1989) (considering a
motion to reopen and rescind an in absentia order in the context of exclusion proceedings). Thus,
we will remand the record to allow the Immigration Judge to adjudicate the lead respondent's case,
including any relief for which he may be eligible.
FURTHER ORDER: The record is remanded for further proceedings consistent with this
opinion and for the entry of a new decision.
Board Member Roger A. Pauley respectfully dissents. The Immigration Judge did not clearly
err in finding that the reason the respondent did not receive notice was that the address he provided
was an insufficient address, which is not a valid basis for reopening.
2
t
APPEARANCES
I. PROCEDURAL HISTORY
Pedro Antonio Avalos Jarquin ("Respondent") is an adult male native and citizen of El
1
Salvador. On or about July 26, 2015, he applied for admission to the United States at or near the
Brownville, Texas Port of Entry.
On July 26, 2015, the Department of Homeland Security ("Department") issued Respondent a
Notice to Appear (''NTA") charging Respondent as removable unaer section 212(a)(7)(A)(i)(I) of
the Immigration and Nationality Act ("INA" or "Act"), in that Respondent who at the time of
application for admission, was not in possession of a valid unexpired immigrant visa, reentry
permit, border crossing card, or other valid entry document required by the Act, or who was not in
possession of a valid unexpired passport, or other suitable document, or identity and nationality
document if such document was required by regulations issued by the Attorney General pursuant
to section 21 l(a) of the Act.
On April 5, 2016, Respondent failed to appear before the Court and was ordered removed to El
Salvador in absentia on that date.2
The Court has carefully reviewed the entire record before it. All evidence has been considered,
even if not specifically discussed further in this decision. For the reasons set forth below, the
Court will deny Respondent's Motion to Reopen.
Generally, motions to reopen for the purpose of rescinding an in absentia removal order must
be filed within 180 days after the date of the removal order, and the respondent must demonstrate
that the failure to appear was due to exceptional circumstances. See INA 240(b)(5)(C)(i); 8
C.F.R. 1003.23(b)(4)(ii). However, motions to reopen for the purpose of rescinding an in
absentia removal order may be filed at any time, including after the 180-day deadline, if the alien
argues that he did not receive notice of the hearing or asserts that he was in Federal or State
custody and the failure to appear was through no fault of his own. See INA 240(b)(5)(C)(ii); 8
C.F.R. 1003.23(b)(4)(ii). All motions to reopen must "be supported by affidavits and other
evidentiary material." 8 C.F.R. 1003.23(b)(3).
When a Notice of Hearing is sent to an alien by regular mail, properly addressed, and mailed
according to normal office procedures, there is a presumption that the alien received proper notice.
Matter of M-R-A-, 24 I&N Dec. 665, 673 (BIA 2008). However, the presumption of notice is
weak.er when the notice is sent by regular mail, as opposed to certified mail. Id.; Qi Hu Sun v. U.S.
Atty. Gen., 543 F.Appx. 987, 989 (IIth Cir. 2013) (unpublished and cited for persuasiveness).
Finally, the Supreme Court has held that "motions to reopen are disfavored" and "[t]here is a
strong public interest in bringing litigation to a close as promptly as is consistent with the interest
in giving the adversaries a fair opportunity to develop and present their respective cases." See
citing INS v. Abudu, 485 U.S. 94, 107 (1988). "This is especially true in a deportation proceeding,
where, as a general matter, every delay works to the advantage of the deportable alien who wishes
merely to remain in the United States." INS v. Doherty, 502 U.S. 314, 323 (1992) (internal
citations omitted).
III. DISCUSSION
When a Notice of Hearing is sent to an alien by regular mail, properly addressed, and mailed
according to normal office procedures, there is a presumption that the alien received proper notice.
Matter of M-R-A-, 24 I&N Dec. at 673. An Immigration Judge may consider various factors to
determine whether a respondent has rebutted the weak.er presumption of delivery when notice is
sent via regular mail, including, but not limited to, the following: (1) affidavits from the alien and
other individuals with knowledge of facts relevant to receipt of notice; (2) whether the alien
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exercised due diligence upon learning of the in absentia removal order; (3) any prior applications
for immigration relief that would indicate an incentive to appear at the removal hearing; (4) the
alien's attendance at earlier immigration hearings; and (5) any other circumstances indicating
possible nonreceipt of notice. Markova v. U.S. Atty. Gen., 537 F.Appx. 871, 874 (IIth Cir. 2013)
(unpublished and cited for persuasiveness);Matter ofM-R-A-, 24 I&N Dec. at 674.
In the present case, Respondent was served with the NTA in person. See NTA. The Notice of
Further, the Motion to Reopen indicates that Respondent would apply for asylum upon the
reopening of his case and has filed with an application with the United States Citizenship and
Immigration services ("USCIS"). First, the Court notes that while Respondent is in removal
proceedings, the Court has jurisdiction over her case and he cannot file for asylum with the
USCIS. See 8 C.F.R. 1003.14(b); 8 C.F.R. 208.2(b), 1208.2(b). Second, Respondent has
failed to include an application for such relief, as required by regulation. See 8 C.F.R.
1003 .23(b)(3) (stating that a motion to reopen for the purpose of acting on an application for relief
must be accompanied by the appropriate application and all supporting documents).
The Court may sua sponte reopen a case over which it has jurisdiction at any time. 8 C.F.R.
1003.23(b)( l ); see also Matter of J-J-, 21 I&N Dec. 976. However, such power should only be
exercised in cases of "exceptional situations." Id. at 984. The respondent has the burden to show
that an exceptional situation exists.Matter of Beckford, 22 I&N Dec. 1216, 1218-19 (BIA 2000).
Moreover, the power to reopen a case sua sponte "is not meant to be used as a general cure for
filing defects or to otherwise circumvent the regulations, where enforcing may result in hardship."
Matter of J-J-, 21 I&N Dec. at 984. As a general matter, the Court "invokes [its] sua sponte
authority sparingly, treating it not as a general remedy for any hardships created by enforcement of
the time and number limits in the motions regulations, but as an extraordinary remedy reserved for
truly exceptional situations." Matter of G-D-, 22 l&N Dec. 1132, 1133-34 (BIA 1999) (citing
Matter of J-J-, supra). Finally, the Eleventh Circuit has held that the Board's discretion to reopen
proceedings sua sponte is exceptionally broad and not subject to judicial review. Lenis v. U.S.
Atty. Gen., 525 F.3d 1291, 1293 (1 lth Cir. 2008). He has not established exceptional
circumstances. As a result, the Court will not exercise its sua sponte authority.
Therefore, Respondent's Motion to Reopen will be denied. In light of the foregoing, the Court
will enter the following order:
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ORDER
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