U.S.

Department of Justice
Executive Office for Immigration Review
Board oflmmigration Appeals
Office of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - OKC

4400 SW 44th Street, Suite A
Oklahoma City, OK 73119-2800

Name: REYES-ROJO, LUIS

A 201-185-006

Date of this notice: 9/8/2015

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

DOWtL

a.;vu

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
O'Leary, Brian M.
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Luis Reyes-Rojo, A201 185 006 (BIA Sept. 8, 2015)

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Alvarez de Bennett, Paola Marie

Alvarez de Bennett Law
3508 NW 50th Street
Oklahoma City, OK 73112

('

. U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A201 185 006- Dallas, TX

In re: LUIS REYES-ROJO

Date:

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Paola M. Alvarez de Bennett, Esquire
APPLICATION: Reopening
The respondent has appealed the Immigration Judge's decision dated March 2, 2015, denying
his motion to reopen. The Immigration Judge had previously ordered the respondent's removal
from the United States, following the respondent's failure to appear for a hearing on
December 9, 2014. The appeal will be sustained, proceedings will be reopened, and the record
will be remanded.
We review an Immigration Judge's findings of fact for 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 he did not receive notice of the December 9, 2014,
hearing, and he has presented sufficient evidence to overcome the presumption of receipt. The
respondent asserts that the hearing date was not listed on his Notice to Appear and that he was
not given the chance to review his address listed on the Form 1-830 filled out by an Immigration
and Customs Enforcement official, which did not include the lot number of his address. The
record reflects that after the respondent was released from custody, three hearing notices were
mailed to him on February 22, 2013, August 14, 2014, and September 9, 2014 (I.J. at 1).
However, the notices were returned to the Immigration Court as undeliverable with the notation
"Insufficient Address" (I.J. at 1). The respondent did not appear for his December 9, 2014,
hearing, and he was ordered removed in absentia on that date (I.J. at 1-2).
The Immigration Judge noted the undelivered notices but determined that the respondent had
the duty to provide a written record of his address, rather than rely on the oral address provided
for use on his Form 1-830 (I.J. at 2). The Immigration Judge concluded that it was reasonable for
the Immigration Court to send the notices to the best available address on record. Although the
Immigration Judge states that the respondent did not actually live at the address to which the
notices were sent, the record does not demonstrate such an admission. 1
I

We note that the evidence of the respondent's address is dated up to March 24, 2014.
However, absent other evidence, we do not find this sufficient to state that the respondent was
living elsewhere on September 9, 2014, the date of service for the hearing notice.
Cite as: Luis Reyes-Rojo, A201 185 006 (BIA Sept. 8, 2015)

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SEP - 8 2015

A201 185 006

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, the in absentia order of removal is rescinded, the
proceedings are reopened, and the record is remanded for further proceedings consistent with the
foregoing opinion.

2
Cite as: Luis Reyes-Rojo, A201 185 006 (BIA Sept. 8, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

The evidence of record reflects that the respondent did not receive the hearing notices, and
that his recorded address on the Form I-830 was correct except for the missing lot number. The
respondent also submitted an affidavit stating that he did not move to his current address until
January 1, 2015 (Motion to Reopen, Feb. 13, 2015, at Tab A). Additionally, it appears that when
the respondent learned of his order of removal, he exercised due diligence in obtaining counsel
and requesting reopening of proceedings, as evidenced by the filing of his motion 2 months after
his removal order. Thus, reopening of proceedings is warranted.

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

FILE A 201-185-006

IN THE MATTER OF
EYES-ROJO, LUIS

DATE: Mar 10, 2015

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.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATIOij APPEALS
OFFICE OF THE CLERK
5107 -eesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
ATTACHED 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:
IMI':1IGRATION COURT
(!.{,:
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242
X

OTHER:

SEE ATTACHED ORDER OF THE IMMIGRATION JUDGE DATED 03/02/2015

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CC: GONZALEZ, ROSLYN

125 E. HWY 114; STE 500
IRVING,
75062

rx,

BHL
COURT CLERK
IMMIGRATION COURT

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Alvarez de Bennett Law

Alvarez de Bennett, Paola Marie
3508 NW 50th Street
Oklahoma City, OK 73112

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS

Luis Reyes-Rojo,
RESPONDENT

IN REMOVAL PROCEEDINGS
A201-185-006

ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE DEPARTMENT

OF HOMELAND SECURITY:

Paola M. Alvarez de Bennett, Esq.

Office of Chief Counsel, DHS

Order Denying Motion to Reopen

Respondent seeks reopening ofa removal order entered in absentia on Dec. 9, 2014 based
on a theory oflack of notice. DHS has not responded to the motion. The motion is denied.
The material facts of the case are uncomplicated and not in dispute. Respondent was
personally served with the Notice to Appear while he was in detention. NTA at 2. At the time of
his release from detention, he verbally provided an address where he would reside when
released. MTR at 10, para. 9. DHS issued form 1-830, containing an address for Respondent,
and served it on the Court. 1-830. The Court mailed the notices of hearing to the Respondent at
the address on the form 1-830, but the Notices were returned by the Post Office with the notation,
"Insufficient Address." See NOH dated Sept. 9, 2014 and August 14, 2014. Respondent did not
file a written address. See ROP and Respondent's affidavit, MTR at 10. Respondent did not
appear for his hearings. Tr.
Respondent has cited to two cases, Matter of M-R-A-, 24 l&N Dec. 665 (BIA 2008), and
Matter of C-R-C, 24 l&N Dec. 677 (BIA 2008). However, both of those cases relate to a

Page 1 of2

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IN THE MATTER OF:

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situation where there was uncertainty over whether the hearing notices had been received. That
issue is not present in the instant case; not only were the hearing notices returned to the Court,
but Respondent has admitted that he did not actually live at the address to which the notices were

The issue herein was foreseen by Congress when it amended the statute in 1996, _and the
argument Respondent advances is foreclosed by those amendments. Because receipt of the NTA
is undisputed, it is also undisputed that Respondent was required to provide the government with
a written, not oral, record of an address at which the alien may be contacted with respect to the
Removal Proceeding. INA section 239(a)(l)(F)(i). Because the Respondent failed to provide a
written record of his address, he was not entitled to notice of the hearing, INA section
239(a)(2)(B), and it was reasonable for the Immigration Court to send a notice of hearing to the
best available address. Respondent cannot defeat or delay removal proceedings by failing to
comply with the statute and the instructions stated on the NTA, and then claiming lack of notice.
It was to avoid these kinds of delays that Congress enacted the current statutory scheme. To
maintain an orderly docket and avoid even further backlogs in the Court's already overburdened
docket, the Court needs for the parties appearing before it to comply with the procedures set
forth by Congress.
ORDER
IT IS HEREBY ORDERED that the Respondent's Motion to Reopen is DENIED.

Date: ,
Dallas, Texas

cl lS

w-4
R. Wayne Kimball
Immigration Judge

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sent. The issue in this case is entirely different, and relates to the adequacy of the address.