U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Qffice of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 20530

DHS/ICE Office of Chief Counsel - HOU

126 Northpoint Drive, Suite 2020
Houston, TX 77060

Name: BONILLA-CHACON, MARIA BER ...

A 096-179-693

Date of this notice: 7/24/2015

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

DQn/tL

t1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
Holiona, Hope Malia

Usertea m: Docket

For more unpublished BIA decisions, visit

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Cite as: Maria Berlinda Bonilla-Chacon, A096 179 693 (BIA July 24, 2015)

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Suarez-Silverio, Arturo Santiago

Law Office of A Suarez-Silverio, LLC
18 Ferry Street
Suite 2R
Newark, NJ 07105

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A096 179 693 - Houston, TX

Date:

In re: MARIA BERLINDA BONILLA-CHACON

JUL .2 4 20J5

APPEAL
ON BEHALF OF RESPONDENT: Arturo S. Suarez-Silverio, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of Honduras, appeals from a decision dated June 10,
2014, by the Immigration Judge denying the respondent's motion to reopen removal proceedings,
which had been conducted in absentia on February 18, 2004. The respondent filed a timely
appeal from that decision. The Department of Homeland Security (DHS) has filed no reply to
the appeal. The appeal will be sustained, proceedings will be reopened and the record will be
remanded.
The record reflects that the September 24, 2003, Notice of Hearing (NOH) is incomplete
insofar as it does not indicate how the notice was served on the parties (Exh. 3). In light of the
totality of circumstances presented in this case, including the incomplete NOH certificate of
service, coupled with the other irregularities of record, 1 the respondent's sworn statement, and
the respondent's filing of her change of address included in the change of venue request, we will
sustain the appeal and allow the respondent another opportunity to appear for a hearing. See
Matter ofM-R-A, 24 I&N Dec. 665, 674-76 (BIA 2008).
ORDER: The appeal is sustained, the in absentia order is vacated, proceedings are reopened,
and the record is remanded to the Immigration Judge for further proceedings.

The change of venue denial was mailed to the respondent's daughter instead of the respondent
and the Immigration Judge erroneously found there was no sworn statement provided by the
respondent with the motion to reopen.

Cite as: Maria Berlinda Bonilla-Chacon, A096 179 693 (BIA July 24, 2015)

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IN REMOVAL PROCEEDINGS

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
600 JEFFERSON, SUITE 900
HOUSTON, TX 77002

FILE A 096-179-693
IN THE MATTER OF
BONILLA-CHACON, MARIA BERLINDA

DATE: Jun 13, 2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF.THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY-PREPARING YOUR APPEAL.
Y:.iUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR:FEE WAIVER REQUEST
BOARD OF IMMIGRATION APPEALS
MGST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
ArTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION 240:{c)(6),
8 u.s.c. SECTION 1229a{c) {6} IN REMOVAL PROCEEDINGS. 'IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
600 JEFFERSON, SUITE 900
HOUSTON, TX 77002
X

OTHER:

ATTACHED - JUDGE'S DECISION ON A MOTION TO REOPEN PROCEEDINGS

-CC: JENNIFER RIESTER

126 NORTHPQINT DR, RM 2020
-HOUSTON, TX, 77060

FF

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Law Office of A Suarez-Silverio, .LLC

Suarez-Silverio, Arturo Santiago
18 Ferry Street Suite 2R
Newark, NJ 07105

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
HOUSTON, TEXAS

File Number: A 096-179-693

BONILLA-CHACON, Maria Berlinda

Respondent.

APPLICATION:

Respondent's Motion to Reopen

ON BEHALF OF RESPONDENTS:
Arturo S. Suarez-Silverio, Esq.
Law Offices of Arturo S. Suarez-Silverio, LLC
18 Ferry Street, Suite 2-R
Newark, NJ 07105

ON BEHALF OF DHS:
Jennifer Riester, Esq.
Department of Homeland Security
126 Northpoint Drive, # 2020
Houston, Texas 77060

ORDERS ON MOTION
Pending before the Court is Respondent's Motion to Reopen, filed on March 19, 2014.
Respondent, through counsel, asks the Court to reopen his removal proceedings for lack of notice
and rescind its in absentia removal order. The Department of Homeland Security (DRS or the
Department) filed a timely opposition. For the reasons stated below, the Court denies
Respondent's requests.
I.

Factual & Procedural History

Respondent is a native and citizen of Honduras. Exh. 1; Exh. 4. On March 20, 2003, she
entered the United States near Hidalgo, Texas and was not admitted, inspected, or paroled by a
U.S. Immigration Official. See id. On that same day, Respondent was encountered at a border

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In the Matter of:

A 096-179-693
patrol checkpoint accompanied by her two minor daughters. Exh. 4. Respondent was personally
served with a Notice to Appear (NTA) on March 24, _2003, charging her as removable under
section 2 12(a)(6)(A)(i) of the Immigration and Nationality Act (INA or the Act). Exh. 1. She was
ordered to appear before an immigration judge in Houston, Texas on June 26, 2003. Exh. 1.

II.

Statement of the Law

An in absentia order of removal may be rescinded only in the following circumstances:

(i) upon a motion to reopen filed within 180 days after the date of the order of removal if the
alien demonstrates that the failure to appear was due to exceptional circumstances; or (ii) upon a
motion to reopen filed at any time if the alien demonstrates that she did not receive notice in
accordance with paragraph (1) or (2) of section 239(a) of the INA, or the alien demonstrates that
she was in Federal or State custody and the failure to appear was through no fault of her own.
INA 240(b)(5)(C); 8 C.F.R. 1003.23(b)(4)(ii) (2011). Furthermore, the filing of this motion
shall stay the removal of the alien until the Immigration Judge issues her decision. See 8 C.F.R.
1003.23{b)(4)(ii). An alien may file one motion to reopen proceedings. See INA 240(c)(7)(A).
An in absentia order may only be entered where the alien has received, or can be charged
with receiving, the charging document. See Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). The
alien must be properly served with the charging document in person, though service by mail will
suffice if personal service is not practicable. INA 239(a)(l). The charging document informs
the alien of the statutory address obligations associated with removal proceedings and of the
consequences of failing to provide a current address. See G-Y-R-, 23 I&N Dec. 181. An in
absentia removal order should not be revoked when the alien did not receive the hearing notice
because she neglected these obligations by failing to provide the immigration court with her
current mailing address. INA 240(b)(5)(B); see also Gomez-Palacios v. Holder, 560 F.3d 354,
360 (5th Cir. 2009) (finding that failure to receive a hearing notice because respondent did not
notify the Court of his change of address did not mean he "did not receive notice" for purposes
of section 240(b)(5)(C)(ii)).
If the hearing notice was sent by certified mail, there is a presumption of effective service
that may be overcome only by "substantial and probative evidence." Maknojiya v. Gonzales, 432
F.3d 588, 589 (5th Cir. 2005) (quoting Matter of Grijalva, 21 l&N Dec. 27, 37-38 (BIA 1995),
superseded by statute on other grounds, 8 U.S.C. 1229(a)(l)). Presumption of receipt of the
hearing notice is weaker when the document is sent by regular mail instead of certified mail.
Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008); see Maknojiya, 432 F.3d at 590. Factors
weighing in favor of overcoming the weak presumption of delivery include the movant's
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Respondent moved to New Jersey and supplied the Court with her new mailing address
on May 14, 2003. See Exh. 2. Her hearing was rescheduled to February 17, 2004 and a reset
notice was mailed by the Court to her New Jersey address on September 24, 2003. See Exh. 3.
Respondent failed to appear at the scheduled hearing and was ordered removed to Honduras in
absentia. See Order of the Immigration Judge (Feb 18, 2004). The order was mailed to
Respondent via regular mail to the address on record but subsequently returned to the Court as
undeliverable.

'.....--

A 096-179-693
affidavit, affidavits from other individuals knowledgeable about the relevant facts, the movant's
actions upon learning of the removal order, any prior application for relief indicating an
incentive for the movant to appear, and any prior attendance at hearings. See M-R-A-, 24 I&N
Dec. at 674.
Analysis

Here, Respondent argues that her removal proceedings should be reopened because she
did not receive notice of her hearing. See Respondent's Motion to Reopen at 4 (Mar. 19, 2014). 1
Respondent's claim is without merit.
On March 24, 2003, Respondent was personally served with an NTA in compliance with
INA 239(a)(l). See G-Y-R-, 23 I&N Dec. at 181. The NTA informed Respondent of the
statutory address obligations associated with removal proceedings and of the consequences of
failing to provide a current address. See id. She properly updated her address after moving to
New Jersey and the Court mailed notice of the reset hearing to her new address. See Exh. 2; Exh.
3.
Respondent contends that she never received notice of the hearing reset. See
Respondent's Motion to Reopen at 1. To determine whether Respondent has overcome the weak
presumption of receipt, the Court must consider the factors weighing in favor of overcoming this
weak presumption. M-R-A-, 24 I&N Dec. at 674; see Maknojiya, 432 F.3d at 590. Respondent
argues that she met her burden because the Court's order, dated February 18, 2004, was returned
to the Court as undeliverable despite being mailed to the proper address in New Jersey. See
Respondent's Motion to Reopen at 4. In essence, Respondent argues that nondelivery of one
properly addressed mailing indicates nondelivery of all mailings to that address. Id. This
reasoning is clearly fallacious. See, e.g., Respondent's Motion to Reopen, Tab J, at 15.
While the nondelivery of the Court's order is one factor weighing in favor of overcoming
the presumption of delivery, it is not, in and of itself, enough to overcome the presumption. See
M-R-A-, 24 I&N Dec. at 674. Respondent submits no affidavits supporting her contention that
the reset notice was never delivered. See id. Furthermore, nothing in the record demonstrates that
Respondent had an incentive to attend her hearing. There are no prior applications for relief on
record, nor is there evidence that she was eligible for relief. See id. Finally, Respondent's letter
notifying the Court of her address change and requesting a change of venue is evidence that she
understood removal proceedings were underway and her presence at the hearing was mandatory.
See Exh. 2. Despite this understanding, she failed to follow-up with the Court for more than ten
years and fails to explain this passage of time. If Respondent had an incentive to appear and truly
intended to comply with her obligations, it is unlikely she would have waited this long to

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III.

Respondent also argues that the Court lacked jurisdiction to deny her motion to change venue because the NTA
was not filed until June 16, 2003. See Respondent's Motion to Reopen at 3; see also Order ofthe Immigration Judge
(May 15, 2003). While this is true, see C.F.R. 1003.14(a), Respondent does not make the Court aware ofwhy this
would impact its decision today. The Court had jurisdiction over Respondent's proceedings when the reset notice
was mailed and her in absentia removal order was entered. See id; Exh. I. As a result, the key inquiry is whether
Respondent was properly notified ofher reset hearing. As discussed in the Court's analysis here, Respondent
received proper notice.

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A 096-179-693
communicate with the Court and ask about her case. The Court finds that the presumption of
receipt has not been overcome and Respondent can be charged with receiving the reset notice. As
a result, Respondent's Motion to Reopen is denied.
Conclusion
Based upon the foregoing, the following shall be entered:
ORDER
IT IS HEREBY ORDERED that Respondent's Motion to Reopen be DENIED.

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IV.