Schnider, Mark T., Esq.

1487 Chain Bridge Rd., Suite 302

Mclean, VA 22101
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
JJleesb1rg Pike, S1ite JJJJ
Fals Church, Virginia JJJ4
OHS/ICE Ofice of Chief Counsel - ELP
1545 Hawkins Blvd.
El Paso, TX 79925
Name: SOTO-FERNANDEZ, JUAN CAR. .. A 076-395-660
Date of this notice: 3/15/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Guendelsberger, John
Mann, Ana
Sincerely,
DO c t
Donna Carr
Chief Clerk
Lulseges
Userteam: Docket
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Cite as: Juan Carlos Soto-Hernandez, A076 395 660 (BIA March 15, 2013)
J
U.S. Department of Justice
Executive Ofce fr Immigation Review
Decision of the Board of Immigation Appeals
Falls Church, Virginia 22041
File: A076 395 660 - El Paso, T
In re: JUAN CARLOS SOTO-FERNADEZ
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Mark T. Schnider, Esquire
ON BEHALF OF OHS: William M. Hunt
Assistant Chief Counsel
APPLICATION: Reopening
MAR 152013
The respondent has appealed fom the Immigration Judge's decision dated May 23, 2012,
denying his motion to reopen proceedings in which he had been ordered removed in absentia.
The Department of Homeland Security ("OHS") has fled a motion fr summay affrance.
The appeal will be sustained and the record will be remanded.
On appeal, the respondent argues that his removal proceedings should be reopened. He
asserts that he was not provided notice of the June 8, 1998 hearing, at which he was ordered
removed in absentia. He points out that 1e has presented evidence that he lived at the address
which he had provided to the then Immigration and Naturalization Service during the time fame
in which the notice was sent. He argues that this evidence, in conjunction with the undisputed
fct that the notice was reted by the post ofce as "undeliverable", is sufcient to meet his
burden of proof to overcome the presumption of delivery applying to documents sent by regular
mail. See Mater of Grialva, 21 I&N Dec. 27 (BIA 1995). In the present case, there was no
delivery, and no discrepancy between the address provided by te respondent and the address on
the envelope containing the notice, so the issue befre us is whether the respondent demonstrated
that he did not cause te lack of notice. Specifcally , the respondent must establish that
nondelivery was not due to his "filure to provide an address where he could receive mail."
Mater of Grialva, supra, at 37. Upon de novo review, in light of both the afrative evidence
presented by the respondent in the fr of specifc afdavits, and the fct that the notice was
reted as undeliverable, we conclude that there is a sufcient basis to determine that the
respondent demonstrated the necessary fcts. Thus, under the totality of the circumstances, we
will sustain the respondent's appeal and reopen the proceedings and allow the respondent
another opporunity to ap
l
ear fr a hearing. Accordingly, the fllowing order will be entered.
ORDER: The respondent's appeal is sustained, the proceedings are reopened, and the record
is remanded to the Immigation Court fr frther proceedings consistent with the fregoing
opinion and the entry of a new decision.
FR TH OA
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Cite as: Juan Carlos Soto-Hernandez, A076 395 660 (BIA March 15, 2013)
. t ..
'

. ;

-.
UITED STATES DEPATMNT OF JUSTICE
EXECUTIVE OFFICE FOR IMIGRTION REVIEW
_ . ,
IMMIGRTION COURT
700 E. SA ANIO, SUITE 750
EL PASO, TX 79901
SCHIDER, MK T., ESQ.
1487 CHAIN BRIDGE ROA, SUITE 302
MCLEA, VA 22101
IN THE MTER OF
SOTO-FERADEZ, JUA CALOS
FILE A 076-395-660
UALE TO FORWAD - NO ADRESS PROVIDED
DATE: May 24, 2012
, ATTACHED IS A COPY OF THE DECISION OF THE IMIGRTION JUGE. THIS DECISION
IS FINAL ULESS A APPEAL IS FILED WITH THE BOAD OF IMIGRTION APPEAS
WITHIN 30 CAENA DAYS OF THE DATE OF THE MILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AD INSTRUCTIONS FOR PROPERLY PREPAING YOU APPEA.
YOUR NOTICE OF APPEA, ATTACHED DOCUETS, AD FEE OR FEE WAIVR REQUEST
MUST BE MILED TO: BOAD OF IMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUDGE THE RESULT
OF YOU FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVA HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPE IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMIGRTION AD NATIONAITY ACT, 8_U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
8 L..\. SECTION 1229a(c) (6) IN REMOVA PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
OTHER:
IMIGRATION COURT
700 E. SA ATONIO, SUITE 750
EL PASO, TX 79901
CORK
IMIGRTION COURT
CC: INS DISTRICT COUSEL
1545 HWKINS BLV., SUITE 275
EL PASO, TX, 799250000
FF
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Cite as: Juan Carlos Soto-Hernandez, A076 395 660 (BIA March 15, 2013)
(
I te Matter of
(
U.S. DEPATMENT OF JUSTICE
Executive Ofce fr Immigation Review
Immigation Cou
El Paso, Texas
File A076 395 660
I Removal Proceedings
SOTO-FERNADEZ, Juan Calos
)
)
)
)
)
)
)
)
)
Order of the Imgation Judge
The respondent in this cae was ordered removed in absentia on June 8, 1998. On
December 27, 2011, the respondent, through counsel, fled a moton to reopen. The
Departent of Homeland Security ("DHS") had the opportunit to fle a response to the
respondenfs motion, but declined to do so. The motion will be denied.
The respondent makes a motion to reopen proceedings based on lack of notice.
Motions to reopen ae disfvored, ad the moving party bears a heavy buden.
Altamirano-Lopez V. Gonzales, 435 F.3d 547, 549 (5th Cir. 2006). There is a presumption
that te U.S. Postal Service properly perfrs its duties in the delivery of mail, unless it
is rebuted by an affdavit fom the respondent. Makokija V. Gonzales, 432 F.3d 588,
590 (5th Cir. 2005). However, submission of a afdavit detailing lack of delivery is not
necessarily sufcient in and of itself to rebut the presumpton of successfl delivery by
the Postal Service. Matter of C-R-C-, 24 I&N Dec. 677 (BIA 2008). A alien is not
entitled to rescission of a deportation or removal order where the failure to receive actual
notice of the time of the hearing is the result of the alien's failure to comply with the
obligation to keep the immigation court apprised of his or her curent mailing address.
Gomez-Palacios V Holder, 560 F.3d 354, 361 (5th Cir. 2009).
The Court notes that the NT A was personally sered on the respondent ad he
was provided oral notice in the Spanish language. The Notice to Appea ("N")
infored the respondent that he "must notif the Immigration Court immediately"
whenever he chaged his "address or telephone number during the course of this
proceeding." I a notarized afdavit, the respondent admits receiving the NT A, but
assers that he never received the notice of hearing at the address he provided t the
Court. The record refects that the respondent's notice of hearing was reted to the
Court as undeliverable and the reason was because the respondent did not provide the
Postal Serice with a frwading address, nor did he update his mailing address with the
Court.
While the respondent provided an affdavit supporing the claim that he did not
receive notice of hearing, the Court fnds that the respondent's affdavit is not sufcient
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in establishing that the respondent did not purposeflly avoid appearing at his removal
hearing. It was the respondent's duty to keep the Court apprised of hs current mailing
address, ad he failed to do so. Therefre, the motion to reopen shall be, ad is hereby,
DENED. SO ORDERED.
Date:
$ )1} / 2
Place: El Paso, Texas
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