Professional Documents
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Department of Justice
Executive Office for Immigration Review
CLAUDIA VALENZUELA, ESQUIRE National Immigrant Justice Center 208 South LaSalle, Suite 1818 Chicago IL 60604-0000
,
OHS/ICE Office of Chief Counsel 3900 Power Line Road Pompano Beach, FL 33072
BTC
A088920-938
Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,
Enclosure
lu
Cite as: Rigoberto Avila-Santoyo, A088 920 938 (BIA Sept. 23, 2011)
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U.S. Department of Justice
File:
Date:
SEP 18 2011
Inre:
RIGOBERTO AVU.A-SANTOYO
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT:
APPLICATION: Reopening
The respondent, a native and citizen of Mexico, appeals the Immigration Judge's decision, dated August 3, 2011, denying his motion to reopen.1 The respondeni's appeal will be dismissed.
we review Immigration Judges' findings of fact for clear error, but questions of law, discretion,
and judgment, and all other issues in appeals, de novo. 8 C.F.R. 1003. l(d)(3Xi), (ii).
We agree with the lnimigration Judge's decision denying the respondent's motion to reopen. On March 13, 2009, the respond ent was ordered removed by the Immigration Judge pursuant to a stipulated order of removal and waiver of hearing. See section 240( d) of the Immigration and Nationality Act, 8U.S.C.1229a(d); 8 C.F.R. 1003.2S(b). Therespondentwasthenremoved to Mexico. After returning to the United States, the respondent tiled a motion to reopen with the Immigration Judge in July 2011.
As the respondent filed his motion subsequent to his removal from the United States, the
Immigration Judge lacked jurisdiction to consider the respondent's motion. See 8 C.F.R. 1003.23(b). Moreover, we are unpersuaded by the respondent's argument that he should be deemed to have been ordered removed in absentia. In order for an Immigration Judge to order an alien removed in absentia, the alien must have been provided notice of his hearing. See section 240(b)(S) of the Act. In this case, as the respondent waived his right to a hearing before an
Immigration Judge, a removal hearing was not held. Thus, we conclude that the Immigration Judge did not have jurisdiction to consider the respondent's motion to reopen and that the untimeliness of his motion could be exempted on the basis oflack ofnotice. See Matter ofBulnes, 25 l&N Dec. 57 (BIA 2009) (holding that an alien's departure from the United States while under an outstandin g order of deportation or removal issued in absentia does not deprive the Immigration Judge of jurisdiction to entertain a motion to reopen to rescind the order if the motion is premised upon lack of notice); see also section 240(b)(S)(C)(ii) of the Act.
Alternatively, the respondent's motion, filed more than 2-years after he was ordered removed was untimely. See section 240( c)(7)(C)(i) of the Act (providing that a motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal). While we
1
Thi.s Board denied the respondent's request for a stay ofremoval on August 4, 2011. Cite as: Rigoberto Avila-Santoyo, A088 920 938 (BIA Sept. 23, 2011)
Cite as: Rigoberto Avila-Santoyo, A088 920 938 (BIA Sept. 23, 2011)