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U.S.

Department of Justice

Executive Office for Immigration Review


Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204 l

OHS/ICE Office of Chief Counsel - HOU


126 Northpoint Drive, Suite 2020
Houston, TX 77060

Name: OGBONNA IROKANULO, ONYE ...

A 099-400-712
Date of this notice: 11/7/2016

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

DOWtL Ca.;vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Wendtland, Linda S.
Greer, Anne J.
Pauley, Roger

Usertea m: Docket

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Cite as: Onyebuchi Ogbonna Irokanulo, A099 400 712 (BIA Nov. 7, 2016)

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Fasidi, Olubusayo Kikelomo


Fasidi Legal Grojp
10039 Bissonnet St., Suite 214
Houston, TX 77036

..

'.

. U.S. Department of Justice


Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A099 400 712 - Houston, TX

Date:

In re: ONYEBUCHI OGBONNA IROKANULO

NOV - 7 2016

APPEAL
ON BEHALF OF RESPONDENT: Olubusayo Kikelomo Fasidi, Esquire
ON BEHALF OF DHS: Bradley A. Sherman
Assistant Chief Counsel
CHARGE:
Notice: Sec.

237(a)(l)(D)(i), I&N Act [8 U.S.C. 1227(a)(l)(D)(i)] Conditional resident status terminated

APPLICATION: Reopening
The respondent, a native and citizen of Nigeria, has appealed from the decision of the
Immigration Judge dated April 29, 2015. In that decision, the Immigration Judge denied the
respondent's December 23, 2014, motion to reopen the proceedings and rescind the in absentia
order of removal entered on April 25, 2013, pursuant to section 240(b)(5)(A) of the Immigration
and Nationality Act, 8 U.S.C. 1229a(b)(5)(A). The respondent's appeal will be sustained, and
the record will be remanded for further proceedings.
The issue in this case is not whether the respondent has rebutted the presumption of
delivery of the Notice to Appear and subsequent hearing notice dated January 29, 2013 (and
mailed the following day). See Matter ofC-R-C-, 24 I&N Dec. 677 (BIA 2008); Matter ofM-R
A-, 24 l&N Dec. 665 (BIA 2008). The issue is whether the respondent can be charged with
receiving those documents on the basis of their service at an address obtained from documents
that he filed with United States Citizenship and Immigration Services ("USCIS") several years
earlier. See Matter ofG-Y-R-, 23 l&N Dec. 181 (BIA 2001). The evidence submitted in support
of the motion to reopen, including the supplemental documents filed on February 13, 2015,
suffices to show that he cannot be charged with receipt of the notices.
The respondent denied receiving the Notice to Appear in his notarized affidavit
(Respondent's M.T.R. at Tab G). The AR-11, Alien's Change of Address dated April 4, 2013,
demonstrates that, before that date, his former address was inconsistent with the address at which
the notices for the removal proceedings were served (Respondent's M.T.R. at Tab F). The
correspondences addressed to USCIS dated December 12, 2011, and May 21, 2013, corroborate
the respondent's addresses reflected in the April 4, 2013, AR-11, and demonstrate that, after
December 12, 2011, if not earlier, the respondent did not reside at the address reflected on the
notices for the removal proceedings, which were mailed on November 26, 2012, and January 30,
Cite as: Onyebuchi Ogbonna Irokanulo, A099 400 712 (BIA Nov. 7, 2016)

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IN REMOVAL PROCEEDINGS

A099 400 712


2013 (Respondent's SUPP. to M.T.R. at 5, 6). Hence, the respondent has established a lack of
notice, and the proceedings will be reopened. 1 The following order will be entered.
ORDER: The respondent's appeal is sustained, and the record is remanded for further
proceedings.

Board Member Roger A. Pauley respectfully dissents and would remand, as the respondent
requested, for the Immigration Judge to consider the evidence he evidently did not.

Accordingly, the respondent's motion for reconsideration, which has been forwarded with the
record on appeal, and the motion to remand are moot.
1

2
Cite as: Onyebuchi Ogbonna Irokanulo, A099 400 712 (BIA Nov. 7, 2016)

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FOR THE BOARD

'

UNITED STATES DEPARTMENT OF JUSTICE


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

Fasidi, Olubusayo Kikelomo

10039 Bissonnet St. Suite 214


Houston, TX 77036
IN THE MATTER OF
OGBONNA IROKANULO, ONYEBUCHI

FILE A 099-400-712

DATE: Apr 30, 2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED


TTACHED 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
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
ATTACHED rs 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
OTHER:

CC: BRADLEY SHERMAN, A.C.C.


126 NORTHPOINT DR, RM 2020
HOUSTON, TX, 77060

COURT CLERK
IMMIGRATION COURT

FF

., .,,.! .

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Fasidi Legal Grojp

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
HOUSTON, TEXAS

File Number: A 099-400-712

Onyebuchi OGBONNA IROKANULO


Respondent.
APPLICATION:

The respondent's Motion to Reopen

FOR THE RESPONDENT:


Olubusayo K. Fasidi, Esq.
10039 Bissonnet Street, Suite 214
Houston, Texas 77036

FORDHS:
Bradley A. Sherman, Esq.
Department of Homeland Security
126 Northpoint Drive, Suite 2020
Houston, Texas 77060

ORDER OF THE IMMIGRATION JUDGE


I. Procedural History
The respondent is a native and citizen of Nigeria whose status in the United States was
adjusted to that of a conditional permanent resident on April 12, 2007. Exh. 1. On March 17,
2009, the respondent filed a petition to remove conditions of residency. Id. On June 2, 2011, the
Department of Homeland Security (DHS) denied that application. Id. On November 26, 2012,
DHS served the respondent, by regular mail, with a Notice to Appear (NTA), charging him as
removable from the U.S. pursuant to section 237(a)(l)(D)(i) of the Immigration and Nationality
Act (INA or the Act). Exh. 1. On January 29, 2013 the Court sent a Notice of Hearing to the
respondent, ordering him to appear for a master calendar hearing before the Court on April 25,
2013. On that date, the respondent failed to appear as directed and the Court ordered him
removed in absentia. Order of the Immigration Judge (Apr. 25, 2013).
On December 23, 2014, the respondent filed the present motion to reopen. On January
14, 2015 DHS filed a response in opposition to the respondent's motion.

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In the Matter of:

A 099-400-712
II. Law and Analysis
A.

Motions to reopen

Here, the respondent seeks to have his removal proceedings reopened in order to rescind
the in absentia order of removal entered against him. See Respondent's Motion.
B.

Rescission of in absentia removal orders

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 he or she did not receive notice
in accordance with paragraph (1) or (2) of section 239(a) of the INA, or the alien demonstrates
that he or she was in Federal or State custody. INA 240(b)(5)(C); 8 C.F.R. I003.23(b)(4)(ii)
(2011). Furthermore, the filing of this motion shall stay the removal of the alien until the
Immigration Judge issues a decision. See 8 C.F.R. 1003.23(b)(4)(ii).
Here, the Court ordered the respondent removed in absentia on April 25, 2013. The
respondent filed the present motion to reopen on December 23, 2014; as a result, his motion was
not filed within 180 days of the entry of the in absentia order and the Court finds the motion to
be untimely. The respondent does not assert that he was in federal or state custody at the time of
his hearing. Rather, the respondent asserts that he did not receive notice of the removal
proceedings against him.
C.

Notice

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An in absentia order may only be entered where the alien has receivI'or eged
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with receiving, the charging document. See Matter of G-Y-R-, 23 I&N Dec. ( l 1 (BIA 200 IJ :fhe J
alien must be properly served with the charging document in person, thoug,-)ervice bit\vi.11 1;
suffice if personal service is not practicable. INA 239(a)(l). When a notiof hearing, sent .';/
by regular mail, properly addressed and mailed according to normal office procedes, there i. .{/
presumption of receipt by the respondent. Matter ofM-R-A-, 24 I&N Dec. 665, 673 {BIA 2008)'.;"
In order to overcome the presumption of receipt, the respondent must submit sufficient, relevant
evidence. Id at 673-74. Factors weighing in favor of overcoming the presumption of delivery
include the movant's affidavit, affidavits from other individuals knowledgeable about the
Page 2 of3

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A motion to reopen is subject to strict time and numerical limitations. 8 C.F.R.


I003.23(b)(l); Matter of Yauri, 25 I&N Dec. 103, 104 (BIA 2009). A motion to reopen shall be
filed within 90 days of the date of entry of a final administrative order of deportation or by July
31, I 996, whichever is later. INA 240(c)(7)(C); 8 C.F.R. I003.23(b)(I). There are three main
exceptions to this limitation: (1) motions to apply for asylum based on changed country
conditions; (2) motions to reopen to rescind orders of deportation entered in absentia; and (3)
motions to reopen in which all of the parties agree to the motion and such motion is filed jointly.
See 8 C.F.R. I003.23(b)(4); Matter of J-G-, 26 I&N Dec. 161, 163-64 (BIA 2013). An alien
may file one motion to reOJ!n proceeings. See INA 24Q(c)(7)(A).

A 099-400-712
relevant facts, the rnovant'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.

Accordingly, the Court finds that the respondent has failed to present sufficient
competent evidence to overcome the presumption of receipt by regular mail. Consequently, the
respondent has failed to establish that he did not receive proper notice of the removal
proceedings against him.
III. Conclusion
Based on the foregoing, the Court finds no legal or discretionary basis for reopening the
respondent's removal proceedings. Accordingly, the following order shall be entered:

ORDER

APR i f 201,
Date

Page 3 of3

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The respondent asserts that he never received the NTA and thus was never aware that he
was placed in removal proceedings. The respondent does not claim that he lived at a different
address than the one listed on the NTA. The respondent only asserts that "[a]ll letters from
immigration came to me except the NTA." Respondent's Motion, Tab G. Further, th e
respondent does not indicate whether he received the Notice of Hearing o r the in absentia
removal order, both of which were also mailed to the respondent by the Court at different times.
Notably, the record does not indicate that either of those items were returned to the Court as
undeliverable. The respondent does not provide any evidence-other than his own bare
assertion-that he did not receive the NTA or that the NTA was sent to an incorrect address. He
did not submit Y affi<!ay_ o. . <>the.i:jndividyal _with knowledge of the rleV-ant facts.
Moreover, there is nothing in the record indicating that the respondent was eligible for any forms
of relief which would have provided him with an incentive to appear.