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U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk


5 J 07 Ln1l111rg Pim, Suite :!ODO Falu Church, Ylrglnio 21041

CLAUDIA VALENZUELA, ESQUIRE National Immigrant Justice Center 208 South LaSalle, Suite 1818 Chicago IL 60604-0000
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OHS/ICE Office of Chief Counsel 3900 Power Line Road Pompano Beach, FL 33072

BTC

Immigrant & Refugee Appellate Center | www.irac.net

Name: AVILA-SANTOYO, RIGOBERTO

A088920-938

J;!ate of this notice: 9/23/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Pauley, Roger

lu
Cite as: Rigoberto Avila-Santoyo, A088 920 938 (BIA Sept. 23, 2011)

..
U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review Falls Church, Virginia 22041

File:

A088 920 938 - Pompano Beach, FL

Date:

SEP 18 2011

Inre:

RIGOBERTO AVU.A-SANTOYO

IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL
ON BEHALF OF RESPONDENT:

C laudia Valenzuela, Esquire

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)

A088 920 938


acknowledge the respondenfs allegation that the Immigration Judge erred in deeming the respondent's waiver of his right to appeal the order ofremoval to be valid, such claim was not raised in (1) a timely appeal of that decision to this Board of the Inunigration Judge's March 13, 2009, decision or (2) a timely motion to reopen or reconsider the Immigration Judge's decision. Accordingly, we find such claims to be untimely. We reject the respondent's assertion that the deadline for a motion to reopen should be tolled. See Abdiv. U.S. Arty Gen., 43 0 F.3d 1148, 1149 (11th Cir. 2005) Additionally, reopening under our sua sponte authority is not warranted. See Matter ofJ..J-, 21 I&N Dec. 976, 984 (BIA 1997). We disagree with the respondent's claims that it would be "extremely unfair'' to hold the respondent to bis prior decision to request an order of removal from the Immigration Judge. Accordingly, following order will be entered.

Immigrant & Refugee Appellate Center | www.irac.net

ORDER: The respondent's appeal is dismissed.

Cite as: Rigoberto Avila-Santoyo, A088 920 938 (BIA Sept. 23, 2011)

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