Miles, Jerrold W.

313 Norh Main Street

Spring Valley, NY 10977
Name: AGUILAR-RIVERA, JOSE ISMAEL
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
J!07lcesburg Pike, Suite J00
Fals Clmrcl. lrgi11ia 2J04!
OHS/ICE Ofice of Chief Counsel HLG
P.O. Box 1711
Harlingen, TX 78551
A077-701-378
Date of this notice: 4/20/2012
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
Hof man, Sharon
Sincerely,
Donna Carr
Chief Clerk
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For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Jose Ismael Aguilar-Rivera, A077 701 378 (BIA Apr. 20, 2012)
U.S. Dep4rent of Jutce
EOff Imgon R
Don of te B o Im gton A
._.
Fals C Vu220 l
rde:
A077 701 378-He T
I re: JOSE ISMEL AR
I ROVA PROCEIGS
APEA
Dae:
ON BE OF RSPONDET: Jer old W. Mles, Esqre
ON BE OF DHS: Pack E. McClintock
AsChef Coul
APLICATION: Reopenng
APR JO 2012
The respondent, a natve ad ct of Honduras, appes fom a desion date
Febr 28, 2011, by the Igation Judge i whch he dened the respondent's moton to repe
remova proce gs, whch had ben cnducte i absenta on July 10, 2000. The respondent fle
a tmel appea fom t desion. The appel wlbe sse procegs wlb repee ad
the rerd wlbe remaded.
The I gon Judge denie the rpondent's moton to repe fndng that he dd not
eslsh tat hs flure to appe at the Juy 10, 2000, hearng the result of eceptona
crcces. However, upon de novo revew, i light of te totalty of circucs presee
i ts ce includng tat the respondet was 11 yes old at te tme hs "ant" wa sere wt the
Notc to Ap ad h clam that h aunt did not infor h of hs oblgaon to ap a te
heng a wel as his marae to a ce who h fed a 1-130 on hs beh we wlss te
appel ad alow te respondent aoter oppor to appea for a hearng.
ORE: The appe is sse pre gs ae rpene ad te reord i rde to
the I gaton Judge for fe proce gs.
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Cite as: Jose Ismael Aguilar-Rivera, A077 701 378 (BIA Apr. 20, 2012)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IM IGRATION REVIEW
IMMIGRATION COUT
IN THE M TER OF:
2009 WEST JEFFERSON A VENU, SUITE 300
HARLINGEN, TEXAS 78550
JOSE ISMAEL AGUILAR-RIVER
)
)
)
)
)
)
CASE NO. A077 701 3 78
RESPONDENT
IN REMOVAL PROCEEDINGS
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MEMORADUM AND ORDER
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On October

1, 2010, Respond

nt, through his counsel of re

ord J

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motion to reopen this removal p

oceedm

. Te re

oval order was issued U tse dJJul:

2000 based upon a removal heanng held U absentia on that same date pursuant to Sect

240(b)(5)(A) of the Immigration and Nationality Act (the Act). The Department of HomeJand
Security filed a response in opposition to the moton to reopen.
The Notice to Appea (Exh. #IC) and the Record ofDeporable/ Inadmissible Alien
(For I-2 l 3)(Exh. #2C) state that, when Respondent was apprehended by the Immigration
Serice on February 5, 2000, he was 11 years old and he was accompanied by his adult aunt
Glenda Suyapa Rivas Rodriguez. Respondent's Notice to Appear was properly sered on
Respondent's adult aunt in person on Febrary 5, 2000 because the For 1-213 indicates that
both of Respondent's parents were residing in Honduras at the time of his apprehension by the
Immigation Serice. See Section 239(a)(l) of the Act; 8 C.F.R. 1239.l(b); 8 C.F.R.
1236.2(a); 8 C.F.R. l 03.5a(c)(2)(ii); Matter of Gomez-Gomez, 23 I&N Dec. 522 (BIA 2002);
Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002). The For 1-213 also states that all
Infrmation was provided to the Immigation Service by Ms. Rivas Rodriguez, who
accompanied Respondent fom Hondura to the United States. Respondent's Notice to Appea
contas the heang notice fr Respondent's July 10, 2000 removal hearing pursuant to Section
239(a)(l ) of the Act. Accordingly, the Cour concludes that Respondent was properly sered
with his Notice to Appear and the hearing notice fr his July I 0, 2000 removal hearing.
In Respondent's motion to reopen, Respondent's attorey states that Ms. Rvas
Rodriguez is not Respondent's aunt, but that Respondent was residing with Ms. Rivas Rodriguez
in Honduras because Respondent's mother had abadoned her children in Honduras.
Respondent's motion to reopen also indicates that the location of Respondent's fther is
unkow. Respondent has not presented a affdavit fom himself or anyone else regading his
familial relationship with Ms. Rvas Rodriguez or stating with whom he resided in the United
States on or befre July 10, 2000. The statements of Respondent's attorey in the motion to
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Cite as: Jose Ismael Aguilar-Rivera, A077 701 378 (BIA Apr. 20, 2012)
reopen do not constitute evidence. See IS v. Phinpathya, 464 U.S. 183, 188-89, n.6 (1984);
Matter of S-M-, 22 I&N Dec. 49, 51 (BIA 1998); Matter of Ramirez-Sachez, 17 I&N Dec. 503,
505-506 (BIA 1980). Based upon the record of this proceeding, where the person accompanying
Respondent claimed to be Respondents aunt ad there was no infration provided to the
Immigation Serice or the Court that his pants were in the Unted States, the Court concludes
that Respondent wa properly served with his Notice to Appear which contained the hearing
notice fr his July I 0, 2000 removal hearing. Even assuming arguendo that Ms. Rivas
Rodriguez was the wif of Respondent's cousin, and not Respondent's aunt, that would not
chage the conclusion that Respondent was properly sered with his Notice to Appear. Ms.
Riva Rodriguez was the custodial adult fr Respondent at the time the Notice to Appea was
personally sered on her. Terefre, Respondent was properly served with notice of his July 10,
2000 removal hearing when the Notice to Appear was personally sered on Ms. Rvas
Rodrguez, who had the responsibility to ensure Respondent's appeaance at his removal
heangs. I these circumstances, where Respondent wa not present at his hearing on July I 0,
2000 and nobody appeared on hs behalf it wa proper to proceed with the removal hearing in
absentia on July 10, 2000. See Matter of Gomez-Gomez, supra, at 528-529.
Based upon all of the above, the Court concludes that Respondent has not demonstrated
that he did not receive notice in accordance wt Section 239(a)(l ) of the Act. Terefre,
Respondent's removal order should not be rescinded. See Section 240(b)(S)(C)(ii) of the Act; 8
C.F.R. 1003.23(b)(4)(ii).
If Respondent's motion to reopen can be construed as contending that Respondent's
removal order should be rescinded under Section 240()(5)(C)(i) of the Act, the motion to
reopen is untimely because it was not fled within 180 days afer the date of the order of removal.
See also 8 C.F.R. 1003.23(b)(4)(ii).
Respondent is also requesting reopening in order to apply fr adjustment of status under
Section 245(i) of the Act and temporary protected status. Te Court concludes that
Respondent's motion to reopen to apply fr these frs of relief fom removal is untimely
because it wa not fled within 90 days of the date of enty of the fnal administrative removal
order. See Section 240(c)(7)(C)(i)
_
of te Act; 8 C.F.R. 1003.23(b)(l).
WREFOR, it is hereby Ordered that Respondent's motion to reopen be denied .
."
Dated this f day of Febrary, 2011.
2
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