Moses, Joshua

Joshua Moses, LLC

8605 Cameron Street, Suite 316
Silver Spring, MD 20910-0000
Name: OKINE, SYDNEY
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leebur Pik. Suite 2000
Fall Church. Vrinia 22041
OHS/ICE Ofice of Chief Counsel BAL
31 Hopkins Plaza, Room 1600
Baltimore, MD 21201
A 097-168-058
Date of this notice:
5/10/
2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Manuel, Elise L.
Hofman, Sharon
Guendelsberger, John
Sincerely,
DOc aA
Donna Carr
Chief Cler
Trane
Userteam: Docket
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Cite as: Sydney Okine, A097 168 058 (BIA May 10, 2013)
U.S. Department of Justce
Executive Ofce fr Immigati
?
n Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 22041
File: A097 168 058 - Baltimore, MD
In re: SYDNEY OKINE a.k.a. Sunday Okine
I RMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Joshua Moses, Esquire
APPLICATION: Reopening
MA' 1 0 20l3
The respondent has appealed the Immigration Judge's decision dated April 23, 2012, denying
his motion to reopen. The respondent had previously been ordered removed in absentia fr his
filure to appear fr the hearing on February 20, 2008. The appeal will be sustained.
We review an Immigration Judge's fndings of fct fr clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R.
1003
.1 (d)(3)(i), (ii).
On appeal, the respondent contends that reopening is waranted because he never received
the Notice to Appear (Form 1-862), containing the date and time of his removal hearing, that was
sent to him by regula mail. See section 240(b)(5) of the Immigration and Nationality Act;
8 U.S.C.

1229a(b)(5); 8 C.F.R.
1003.23(b)(4)(ii). The respondent submitted his own swor
afdavit, as well as tat of his frer household members, to corroborate his assertion of
non-receipt. The record refects that the respondent had previously fled an afrmative
application fr relief, indicating that he had an incentive to appear. In light of the fregoing, we
conclude that he sufciently rebutted the lesser presumption of delivery. See Matter of M-R-A-,
24 l&N Dec. 665, 674-76 (BIA 2008) (setting frth the standards fr determining if a respondent
has presented suffcient evidence to overcome the weaker presumption of delivery that attaches
to notices sent by regular mail); Matter of C-R-C-, 24 l&N Dec. 677 (BIA 2008);
see also Nibagire v. Gonales, 450 F.3d 152 (4th Cir. 2006).
Accordingly, the fllowing order will be entered.
ORDER: The appeal is sustained, the proceedings are reopened, and the record is remanded
fr frther proceedings.
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Cite as: Sydney Okine, A097 168 058 (BIA May 10, 2013)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BALTIMORE, MARYLAND 21201
IN THE MATTER OF
SYDNEY OKINE
RESPONDENT
IN REMOVAL PROCEEDINGS
CASE A# 097-168-058
CHARGES: INA 237(a)(l)(B), nonimmigrant overstay
INA 237 (a) (l)(A), inadmissable for willful misrepresentation,
fraud
INA 212(a)(6)(C)()
APPLICATIONS: Motion to Reopen and Stay Removal
ON BEHALF OF RSPONDENT:
Joshua Moses, Esq.
Joshua Moses LLC
8605 Cameron Steet, suite 316
silver Spring, Marland 20910
ON BEHALF OF DHS:
Assistant Chief Counsel
31 Hopkins Plaza, 7h Floor
Baltimore, Marland 21201-2825
MEMORANDUM OF DECISION AND ORDER
Respondent through counsel has fled a motion to reopen with the cour claiming he did
not receive a Notice to Appear.
The DHS has not responded to the motion.
The motion is denied.
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The court record refects that the Respondent was served by regular mail a Notice to
Appear (NTA) which was not retued to the OHS. The NTA ordered the respondent to appear
on 2-20-2008 at 1 :00 p.m. He failed to appear resulting in an in absentia order.
Motions to reopen removal proceedings befre an immigation judge are peritted by
section 240(c)(6) of the Immigration and Nationality Act("INA"), which states that an alien may
fle only one motion to reopen within 90 days f the date of entry of a fnal administative order
of removal or September 30, 1996, whichever is later. A motion to reopen proceedings in which
an order was entered in absentia must be fled with 180 days of ent of the order and
demonstate exceptional circumstances fr the failure to appear, unless lack of notice is alleged.
8 CF 1003.23(b)(4)(B)(ii). A in absentia heaing may only be conducted when the alien
actally receives or can be charged with receiving the Notice to Appea ad the notice of heaing
it contains. Matter of G-Y-R, 23 I&N Dec 181, 189-90 (BIA2001); see also Matter of M-D-23
I&N Dec 540, 547 (BIA2002) (stating that is the Notice to Appea reaches the corect address
but does not reach the alien "ough some failure in the interal workings of the household," the
alien can be charged with receiving proper notice). When the Notice to Appear is served by
regular mail, the presumption of deliver is weaker than the "strong presumption" accorded to
serice by certifed mail. See Matter of M-R-A, 24 I&N Dec. 665 (BIA 2008); see also
Nibagire v Gonzalez, 450 F3d. 153 {41b 2006) (distinguished reglar mail presumption fom
the stong presumption of deliver fr certifed mail). Notice of hearing may be in person or by
mail to respondent's address of record or his counsel. Notice may be actual of constructive, that
is, actually received by respondent, attorey or agent, or merely mailed to the address of record
provided by respondent. See INA, Section 239, INA Section 240(b)(S)(A); see also Matter of
Grijialva, Int. Dec. Section 246 (BIA 1995); In re Villalbc, Int Dec 3310 (BIA 1997).
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-M
Here the Respondent wa sent an NT A by regular mail to the address of record provided
by him. It contained the date of his
.
hearing. It wa not reted and deemed to have been
delivered. Additionally, the order of removal wa mailed to the Respondent to his address of
record, not reted and deemed to have been delivered.
The motion is supported only by the Respondent's contention that he did not receive the
NTA.
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