U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - CHL

5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212

Name: MEJIA-VASQUEZ, FRISLID

A 206-091-158
Date of this notice: 11/21/2016

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

Don.nL C

t1.NL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Mann, Ana
O'Connor, Blair

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Frislid Mejia-Vasquez, A206 091 158 (BIA Nov. 21, 2016)

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

Velasquez, Zoila C., Esq.

Velasquez & Associates
5701 Executive Center Drive
Suite 410
Charlotte, NC 28212

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - CHL

5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212

Name: MEJIA-VASQUEZ, FRISLID

A 206-091-158
Date of this notice: 11/21/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

DorutL c

t1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Mann, Ana
O'Connor, Blair

Userteam: L.

Cite as: Frislid Mejia-Vasquez, A206 091 158 (BIA Nov. 21, 2016)

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

MEJIA-VASQUEZ, FRISLID
A206-091-158
IRWIN COUNTY DETENTION CENTER
132 COTTON DRIVE
OCILLA, GA 31774

U.S. Deartment of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A206 091 158 -Charlotte, NC

Date:

NOV 2 1 2016

In re: FRISLID MEJIA-VASQUEZ

APPEAL
ON BEHALF OF RESPONDENT: Zoila C. Velasquez, Esquire
ON BEHALF OF DHS:

Scott D. Criss
Assistant Chief Counsel

APPLICATION: Reopening
The respondent, a native and citizen of Guatemala, appeals the decision of the Immigration
Judge, dated July 22, 2016, denying his motion to reopen. The Department of Homeland
Security is opposed to the respondent's appeal.
We review Immigration Judges' findings of fact for clear error. 8 C.F.R. 1003.l(d)(3)(i).
We review questions of law, discretion, and judgment, and all other issues in appeals de novo.
8 C.F.R. 1003.l(d)(3)(ii).
. Considering the totality of the circumstances presented in this case, including the
respondent's young age at the time of his removal hearing, we conclude that reopened removal
proceedings are warranted in order to provide him with a renewed opportunity to appear before
an Immigration Judge to show why he should not be removed from the United States. See 8
C.F.R. 1003.23(b)(l). However, at the present time, we express no opinion regarding the
ultimate outcome of these proceedings. Accordingly, the following order is entered.
ORDER: The respondent's appeal is sustained, the order of removal, entered in absentia on
September 2, 2014, is vacated, the proceedings are reopened, and the record is remanded to the
Immigration Court for further proceedings and the entry of a new decision.

FOR THE BOARD

Cite as: Frislid Mejia-Vasquez, A206 091 158 (BIA Nov. 21, 2016)

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

IN REMOVAL PROCEEDINGS

.
\(''

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
5701 EXECUTIVE CENTER DR. #400
CHARLOTTE, NC 28212

IN THE MATTER OF
MEJIA-VASQUEZ, FRISLID

FILE A 206-091-158

DATE: Jul 25, 2016

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
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041
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 HERING.
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
5701 EXECUTIVE CENTER DR. #400
CHARLOTTE, NC 28212

OTHER:

COPY OF IJ ORDER MAILED. cy

\ :\' \

\ n

G?\: W{',j ____:\:.- . u, l (C

CC: COLLEEN E. TAYLOR., ESQ

5701 EXECUTIVE CENTER DR, 300
CHARLOTTE, NC, 28212

COURT CLERK
IMMIGRATION COURT

FF

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

Velasquez & Associates

Velasquez, Zoila Catalina
5701 Executive Center Drive
Suite 410
Charlotte, NC 28212

In the matter of:

VASQUEZ MEJIA, Frislyd
Respondent

)
)
)
)
)

File No. A#: 206-091-158

ngs
= =o.;;;...v.a...;;a__l P-"ro"-"ce e d=i=
In;;;....;;R
_..."--_________),
;;..;;.em
=

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of the Respondent's Motion to Reopen, it is HEREBY ORDERED that the
ENIED because:
motion be o GRANTED
o/"
o OHS does not oppose the motion.
o A response to the motion has not been filed with the Court.
o Good cause has been established for the motion.
o The Court agrees with the reasons stated in the opposition to the motion.
o The motion is unti
r

:-Sa. (),tJ-.J

Deadhnes:

o The application(s) for relief must be filed by ___________

o The Respondent must comply with OHS biometric instructions by ----

Date

)/J7llfe

---->

Immigration Judge

Certificate of Service
This document was serve by: aiblt,1 Personal Service
ien c/o Custodial Ofticr Alien's Attorney DHS
To: [ ] Alien
Date:
I
By Court Staff:
7

4u

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

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE OF IMMIGRATION REVIEW
OFFICE OF THE IMMIGRATION JUDGE
CHARLOTTE, NORTH CAROLINA

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
United States Immigration Court
5701 Executive Center Drive

IN THE MATTER OF:

In Removal Proceedings

MEJIA-VASQ.UEZ, FRISLID

File No. # 206-091-158

Respondent

APPLICATION:

Motion to reopen proceedings and rescind in absentia order of removal.

APPEARANCES

ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE GOVERNMENT:

Zoila C. Velasquez, Esq.

Scott Criss, Esq.-Assistant Chief Counsel

5701 Executive Center Dr., Ste. 410

Department of Homeland Security

Charlotte, NC 2821

5701 Executive Center Drive

Charlotte, North Carolina

WRITTEN DECISION OF THE IMMIGRATION JUDGE

I.

Procedural History
On December 5, 2013, the Department of Homeland Security {OHS) issued to the respondent a Notice to Appear

(NTA) (Form 1-862), charging the respondent with removability under section 212{a){6)(A)(i) of the Immigration and
Nationality Act (the Act), as an alien present in the United States without being admitted or paroled.

The OHS alleges that the

respondent is a native and citizen of Guatemala, who entered the United States without inspection, and was not in possession of
a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document.

The charging

document was filed with the Charlotte Immigration Court on July 13, 2015, thereby vesting this Court with jurisdiction.

See 8

C.F.R. ' 1003.14(a) (2005).

The NTA was personally served on the respondent. The hearing notice was mailed to him on July 9, 2014 via regular

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

Charlotte, North Carolina 28212

mail informing him that his case had been scheduled for a hearing on September 2, 2014 and indicating the time and place of
his scheduled hearing.
On September 2, 2014, the date of the scheduled hearing, the respondent was not present in Court.

The OHS

court.

The Court granted the motion and held an in absentia hearing under section 240(b)(S}(A) of the Act, which states that

any alien who, after written notice required under paragraph (1) and (2) of section 239(a} has been provided to the alien, does
not attend a proceeding under this section, shall be ordered removed in absentia if the DHS establishes by clear, unequivocal,
and convincing evidence that the written notice was so provided and that the alien is removable.

The Court found that the

OHS had met its burden of showing that the respondent was removable by clear, unequivocal, and convincing evidence
pursuant to section 240(b)(S)(A) of the Act; and ordered the respondent removed from the United States to Guatemala.

See 8

C.F.R. '3.26(c).
On July 11, 2016, Respondent, through counsel, filed the instant motion to reopen removal proceedings.
Respondent requests that the court reopen removal proceedings and rescind the in absentia order because he did not receive
the Hearing Notice.
II.

For the reasons set forth below, the court will deny Respondent's motion.

Findings of the Court

Generally, only one motion to reopen may be filed before the Immigration Court and such motion must be filed within
90 days of the final administrative order of removal, deportation, or exclusion.

8 C.F.R.' 1003.23(b).

The applicant must

make a prima fade case for the underlying substantive relief by stating new facts that will be proven at a hearing if the motion is
granted, and it must be supported by affidavits and other evidentiary material.
485 U.S. 94 (1988).

8 C.F.R.' 1003.23(b)(3); also INS v. Abudu,

A motion to reopen will not be granted unless the Immigration Judge is satisfied that the evidence offered

is material and was not available and could not have been discovered or presented at the former hearing.

A motion to reopen

to apply for a form of discretionary relief will not be granted if Respondent's right to apply for such relief was fully explained by
the Immigration Judge at the previous hearing, unless the relief is sought on the basis of circumstances that have arisen
subsequent to the hearing.

8 C.F.R.'1003.23(b)(3).

Any motion to reopen for the purpose of acting on an application for

relief must be accompanied by the appropriate application for relief and supporting documentation.

!fl

Finally, if the

ultimate relief is discretionary, the Immigration Judge may deny a motion to reopen even if the moving party demonstrates
prima /acieeligibility for relief.

&; Abudu, 485 U.S. 94.

A motion to reopen for purposes of rescinding an in absentia removal order may be filed at any time where the alien
demonstrates that he did not receive notice of the hearing and the failure to appear was through no fault of his own.
'240(b)(S)(C)(ii); 8 C.F.R.' 1003.23(b)(4)(ii).

See INA

This court must follow the decisions of the Circuit Courts, which held that due

process is satisfied so long as the method of notice is conducted in a manner reasonably calculated to ensure that notice reaches

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

motioned the Court to proceed in the respondent's absence as there was no apparent reason why the respondent was not in

'

the alien.

United States v. Dominguez, 284 F.3d 1258, 1259 (11th Cir. 2002).

provided by the alien to the court is sufficient notice.

Id.

Notice to the alien at the most recent address

The last address provided to OHS qualifies as a proper address,

and notice given to that address is deemed sufficient for purposes of in absentia hearings if the alien has not notified the court of
a change of address. INA' 240(b)(5)(A); Matter of G-Y-R-, 23 I. & N. Dec. 181 (B IA 2001).

Furthermore, it is the affirmative

INA" 262, 265; Dominguez, 284 F.3d at 1260.

In this case, the Respondent claims he never received the Notice of Hearing and, thus, his failure to appear should be
excused.

On July 9, 2014 the hearing notice was mailed to 821 Navaho Drive. Apt. 101, Raleigh North Carolina 27609. On

July 9, 2014 the Notice of Hearing was mailed to this same address via regular mail.

The Certificate of Service on the Notice

or Hearing , provides that the respondent was served, by regular mail at the Navaho Drive address, in accordance with Section
239{a)(1)(F) of the Act.
Change of Address

The OHS has certified that this was the last address provided by the Respondent.

(Form EOIR-33), filed by the Respondent's representative on his behalf

submined into the record by the Respondent, provides the Navaho Drive

Furthermore, the

on March 17, 2014 and

address as the Respondent's address.

The Respondent does not dispute that he resides at the Navaho Drive address.

The Respondent simply alleges that

he did not receive the notice, and that there is trouble with the mail. No other explanation has been provided.

There is also

no evidence that the Respondent provided the DHS with a new address, such as a copy of a change of address form he
submitted to the OHS or a receipt from the OHS indicating that the Respondent's request for change of address had been
updated.
Dec. 181.

Thus, the address is the last address Respondent provided to the Department.

Also, there is no other indication that the NTA was not properly delivered, such as a returned Notice of Hearing

noting that it was undeliverable.

The record lacks any evidence to suggest "that anything had gone awry" with service of the

Hearing Notice that would indicate defective service of the notice of hearing.
(2006).

See Matter of G-Y-R-, 23 I. & N.

See generally lanes v. Flowers, 547 U.S. 220

As such, the Hearing Notice is presumed to have been delivered and, thus, the notice of hearing was conducted in a

manner reasonably calculated to reach Respondent.

Dominguez, 284 F.3d 1258.

However, the BIA has held that a Respondent may overcome the presumption of delivery that applies to regular mail.
Matter of M-R-A, 24 I. & N. Dec. 665 (BIA 2008) (holding that the presumption of delivery for documents sent by regular mail is
weaker than the presumption that applies to documents sent by certified mail); also Matter of G-Y-R-, 23 I. & N. Dec. 181
(holding that application of a strong presumption to the use of regular mail is unwarranted). In determining whether the
Respondent has submitted sufficient evidence to overcome the weaker presumption of delivery that applies to regular mail, the
court should consider the following nonexclusive factors: the Respondent's affidavit of nonreceipt of notice; affidavits from
other family members or individuals with knowledge as to whether norice was received; the Respondent's due diligence in
seeking to redress the in absentia removal order; any affirmative prior application for relief or any other prior application for
relief indicating an incentive to appear; Respondent's previous attendance at Immigration Court proceedings; and, any other
circumstances or evidence indicating possible lack of notice.

Matter of M-R-A, 24 I. & N. Dec. at 674;

see also Matter of

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

duty of an alien to provide the DHS with a correct address in writing within 10 days from the date of a change of address. See

C-R-C-, 24 I. & N. Dec. 677 (BIA 2008). However, in the instant case the only documents received was the respondent's birth
certificate and additional copies of the order of removal and documents relating to his detention.

There are is an affidavit

from the respondent's brother; however the Court has considered the affidavit and does not find it persuasive.

Dec. at 674;

see also Matter of C-R-C-, 24 1. & N. Dec. 677.

Maner of M-R-A, 24 1. & N.

Thus, Respondent's motion to reopen based on defective notice

is denied. In addition the motion is not timely.

Accordingly, the court enters the following order.
ORDER

It is ordered that:

Respondent's Motion to Reopen is DENIED.

Theresa Holmes-Simmons

Date

United States Immigration Judge

Charlotte, North Carolina 2821 2

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

As such, Respondent has not presented sufficient evidence i ndicating possible lack of notice.