U.S.

Department of Justice

\ -
Executive Office for Immigration Review

Board ofImmigration Appeals

Of
f ice ofthe Clerk

5107 leesburg Pike, Sul/e 2000

Falls Church, Vtrgm1a 22041

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Salomon, Ronald S OHS/ICE Office of Chief Counsel - NYC
Ronald S. Salomon, Esq. 26 Federal Plaza, 11th Floor
305 Broadway, Suite 402 New York, NY 10278
New York, NY 10007

Name: MITCHELL, CARLOS A 073-066-831

Date of this notice: 9/11/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Mann, Ana
Grant, Edward R.
Kelly, Edward F.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Carlos Mitchell, A073 066 831 (BIA Sept. 11, 2017)
.

..
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A073 066 831 - New York, NY Date:

SEP 1 1 2017
In re: Carlos MITCHELL

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Ronald S. Salomon, Esquire

APPLICATION: Reopening; reconsideration

The respondent, a native and citizen of Venezuela, was ordered removed from the United States
in absentia on July 14, 2000, after not appearing at a hearing. He filed a motion to reopen on
November 14, 2016, which the Immigration Judge denied on December 22, 2016. On
January 23, 2016, the respondent filed a motion to reconsider, and appeals from the Immigration
Judge's decision dated February 8, 2017, denying that motion. The appeal will be sustained.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i) (2017). We
review all other issues, including issues of law, discretion, or judgment, under a de novo
standard. 8 C.F.R. 1003.l(d)(3)(ii).

The respondent first argues that his motion to reconsider was timely filed. As the thirtieth day
fell on a Sunday, and as the motion was date-stamped received by the Immigration Court on the
following Monday, we agree the motion was timely filed. See 8 C.F.R. 1003.23(b)(l).

In addition, the respondent argues that he was not properly served with the Notice to Appear.
We are unable to determine whether the respondent actually received or can be charged with
receiving the Notice to Appear which contains the required warnings and advisals under section
239(a)(l) of the Immigration and Nationality Act, 8 U.S.C. 1229(a)(l). See Matter of G-Y-R-,
23 I&N Dec. 181(BIA 2001). On April 28, 2000, the Department of Homeland Security (OHS)
sent the Notice to Appear to the respondent at the address that his spouse provided on a 1997
Petition for Alien Relative (Form I-130). The respondent argues that he was in Venezuela during
this time.

In addition, the order of removal, entered in absentia on July 14, 2000, was returned by the
postal service as undeliverable. Hence, the record fails to establish whether the respondent actually
received or can be charged with receiving the Notice to Appear which contains the required
advisals. The proceedings will therefore be reopened based on lack of notice.

Accordingly, the following order will be entered.

Cite as: Carlos Mitchell, A073 066 831 (BIA Sept. 11, 2017)
'A073 066 831

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

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Cite as: Carlos Mitchell, A073 066 831 (BIA Sept. 11, 2017)
 (

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
26 FEDERAL PLZ, 12TH FL RM1237
NEW YORK, NY 10278

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Ronald S. Salomon, Esq.
Salomon, Ronald S
305 Broadway
Suite 402
New York, NY 10007

IN THE MATTER OF FILE A 073-066-831 DATE: Feb 8, 2017

MITCHELL, CARLOS

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 IMMIGRATION APPEALS
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 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
26 FEDERAL PLZ, 12TH FL RM1237
1027E

];;;:;;;y
CO
IM
CLERK
GRATTON COURT FF
 UNITED STATES DEPARTMENT OF JUSTICE
I EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
I
UNITED STATES IMMIGRATION COURT
26 FEDERAL PLAZA
NEW YORK, NEW YORK

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File No.: 073-066-831

In the Matter of :

MITCHELL, Carlos MOTION TO RECONSIDER

The Respondent.

CHARGE: INA 237(a)( l )(B) Remaining Longer Than Permitted After

Admission

APPLICATION: 8 C.F.R. 1003.23 Motion to Reconsider

ON BEHALF OF THE RESPONDENT ON BEHALF OF OHS

Ronald Salomon, Esq. Hayden Windrow
305 Broadway Assistant Chief Counsel
Suite 402 26 Federal Plaza Room 1130
New York, NY 10007 New York, NY 10278

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. PROCEDURAL IDSTORY

Carlos Mitchell ("the Respondent") is a native and citizen of Venezuela. (Exh. 1). He
first entered the United States ("U.S.") on or about April 26, 1992 at New York, NY as a B-2
nonimmigrant for pleasure, with permission to stay in the U.S. no longer than six months. Id.
On January 22, 1997, the Respondent married Candice Mitchell, a U.S. citizen. See (Exh. 3).

On January 27, 1997, the Respondent's spouse filed Form I-130, Petition for Alien
Relative ("I-130 Petition" or "1997 I-130 Petition") on his behalf. Id The Respondent and his
wife attended an interview before the legacy Immigration and Naturalization Service ("INS") on
September 9, 1997. See Department of Homeland Security's ("OHS") Opposition to the
Respondent's Motion to Reopen and Terminate ("OHS' Opposition"), Tab A. Their case was
then referred for a Stokes interview, which was scheduled for November 16, 1999. Id. INS
denied the I-130 Petition on December 10, 1999. (Exh. 3).
 On April 28, 2000, INS served the Respondent with a Form 1-862, Notice to Appear
(''NTA") via certified mail, return receipt requested, charging the Respondent with removability
pursuant to section 237(a)(l)(B) of the Immigration and Nationality Act ("INA") as an alien
remaining in the U.S. longer than permitted after admission. (Exh. 1). The Respondent was
scheduled to appear at a master calendar hearing before the New York City Immigration Court
on July 14, 2000. Id

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The Respondent failed to appear at his scheduled hearing on July 14, 2000. INS submitted
a copy of the Respondent's denied 1-130 Petition and a copy of a certified mail return receipt
addressed to his wife. (Exhs. 2-3). The Court found that the documentary evidence established
the truth of the factual allegations contained in the NTA, and found that the Respondent was
removable as charged. The Court ordered the Respondent removed to Venezuela. See Removal
Order, dated July 14, 2000.

The Respondent's wife filed a second 1-130 Petition for the Respondent on April 3, 2000.
See Respondent's Motions, Tab B. INS approved this petition on November 21, 2000. Id.
On November 14, 2016, the Respondent filed a Motion to Reopen and Terminate Proceedings,
alleging that the NTA was not properly served on the Respondent. See The Respondent's
Motion to Reopen and Terminate Proceedings ("the Respondent's Motions"). The Respondent
further argues that proceedings were "improperly and improvidently commenced" because he
had allegedly departed the U.S. prior to its issuance. Id. On November 29, 2016, DHS
submitted an opposition to the Respondent's Motions. See DHS' Opposition.

The Court denied the Respondent's Motions on December 22, 2016. See The Court's
Decision dated December 22, 2016 ("Court's Decision"). The Respondent filed a Motion to
Reconsider on January 23, 2017 See The Respondent's Motion to Reconsider ("Motion to
. .

Reconsider"). Along with his Motion to Reconsider, the Respondent filed his affidavit and
indicated it had been "inadvertently omitted" from the earlier filing. See Motion to Reconsider at
1-2. On January 26, 2017, OHS submitted an opposition to the Motion to Reconsider. See DHS'
Opposition to the Respondent's Motion to Reconsider.

For the following reasons, the Court denies the Respondent's Motion to Reconsider.

II. EXHIBITS

Exhibit 1 NTA, dated April 19, 2000;

Exhibit 2 Copy of certified mail receipt addressed to the Respondent's wife, dated
January 3, 2000;
Exhibit 3 Copy of 1997 1-130 Petition;

The record also contains the following documents:

The Respondent's Motions and supporting documents, filed on November 14, 2016,

Tab A: The Respondent's Motions;

TabB: Copy ofl-130 Petition, filed by the Respondent's wife on April 3,

2
i 2000 ("2000 1-130 Petition");
TabC: Copy of OHS Central Index System print-out, dated June 8, 2012;
TabD: Copy of the Respondent's VaccinationDocumentation Worksheet
and Medical Examination, dated March 15, 2002;
TabE: Copy of certified mail receipt addressed to the Respondent's wife,
dated January 3, 2000;

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TabF: Form EOIR-28, Notice of Entry of Appearance as Attorney or
Representative before the Immigration Court, dated November 10,
2016;
TabG: Proposed Order;
Tabff: Certificate of Service;

OHS' Opposition, filed on November 29, 2016,

TabA: Copy of Form 1-213, Record ofDeportable Alien, dated April 6,

2000;
TabB: Copy of 1997 1-130 Petition;

The Respondent's Motion to Reconsider, filed on January 23, 2017,

TabA: Motion to Reconsider;

TabB: The Respondent's Affidavit;
TabC: Proposed Order

OHS' Opposition to the Respondent's Motion to Reconsider, filed on January 26, 2017.

III. LEGAL STANDARDS AND ANALYSIS

A. Motion to Reconsider

An Immigration Judge ("IJ'') may upon her or his own motion at any time, or upon
motion of OHS or the alien, reconsider any case in which she or he has made a decision unless
jurisdiction is vested with the BIA. 8 C.F.R. 1003.23(b)(l). An alien may file only one motion
to reconsider, and such motion must be filed within thirty days of the date of entry of a final
administrative order of removal, deportation, or exclusion. 8 C.F.R. 1003.23(b)(l). The time
and numerical limitations for motions do not apply to motions by OHS in removal proceedings.
8 C.F.R. 1003.23(b)(l). Nor do they apply to motions filed by OHS in deportation or
exclusion proceedings when the basis of the motion is fraud in the original proceeding or a crime
that would warrant termination of asylum in accordance with 8 C.F.R. 1208.22(e). 8 C.F.R.
1003 .23(b)(1).

A motion to reconsider is a "request that the Board reexamine its decision in light of
additional legal arguments, a change of law, or perhaps an argument or aspect of the case which
was overlooked." Matter of0-S-G-, 24 l&N Dec. 56, 57 (BIA 2006) (quoting Matter of Ramos,
23 l&N Dec. 336, 338 (BIA 2002)). "A motion to reconsider contests the correctness of the
original decision based on the previous factual record, as opposed to a motion to reopen, which

3
seeks a new hearing based on new or previously unavailable evidence." 0-S-G-, 24 I&N Dec. at
57-58. A motion to reconsider must state the reasons for the motion by specifying the errors of
,
fact or law in the Immigration Judge s prior decision and be supported by pertinent authority. 8
C.F.R. 1003.23(b)(2). However, a motion that merely restates the arguments previously raised
will be properly denied. Khan v. Gonzales, 495 F.3d 31, 36-37 (2d Cir. 2007).

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The BIA has held that:

a motion to reconsider should, consistent with the statute and

regulations set forth at 8 C.F.R. 1003.23(b)(2), include the
following: (1) an allegation of material factual or legal errors in the
,
Board s decision that is supported by pertinent authority; (2) if the
,
Board summarily affirmed the Immigration Judge s decision,
showing that the alleged errors and legal argument were previously
raised on appeal and a statement explaining how the Board erred in
affirming the Immigration Judge,s decision under the AWO
regulations; and (3)_ if there has been a change in law, a reference
to the relevant statute, regulation, or precedent and an explanation
of how the outcome of the Board,s decision is materially affected
by the change.

0-S-G-, 24 l&N Dec. at 60.

In this case, the Respondent filed an untimely Motion to Reconsider. The Respondent
,
filed his Motion to Reconsider on January 23, 2017 - 31 days after the Court s Decision. Even if
the Respondent had timely filed his Motion to Reconsider, the Court would nonetheless deny his
motion as it fails to point to any error of fact or law. Instead, the Respondenfs Motion to
Reconsider merely restates the arguments previously raised in his Motion to Reopen regarding
the alleged lack of notice. See Respondenfs Motion to Reconsider at 1-5; see also Khan, 495
F.3d at 36-37 (finding that a motion that merely repeats arguments previously raised will be
properly denied).

An order entered in absentia in removal proceedings may be rescinded only (i) upon a
motion to reopen file within 180 days after the date of the order of removal if the alien
demonstrates that his failure to appear was because of exceptional circumstances or (ii) upon a
,
motion to reopen filed at any time if he demonstrates that he did not receive due notice or that he
was in federal or state custody and his failure to appear was through no fault of his own. 8
C.F.R. 1003.23(b)(4)(ii).

Proper notice includes personal service and, when the alien does not appear physically
before the IJ, service by certified mail to the alien,s last known address (even if the notice is
,
returned as unclaimed) or to the alien s counsel of record. Song Jin Wu v. INS, 436 F.3d 157,
162 (2d Cir. 2006); Matter of Grijalva, 21 l&N Dec. 27 (1995); Matter of Huete, 20 I&N Dec.
250 253 (BIA 1991) (holding that in order to effect service of an Order to Show Cause sent by
,
certified mail, return receipt requested, the receipt must be signed by the addressee or a
responsible person at his address and returned); see also Matter of G-Y-R-, 23 I&N Dec. 181,

4
. .

189 (BIA 2001) (noting that "the alien can be charged with receiving proper notice, and proper
service will have been effected" where the notice reaches the correct address but not the
individual alien "through some failure in the internal workings of the household").

The issue in a claim of nonreceipt under INA 240(b)(5)(C)(ii) is not whether the notice
was properly mailed but whether the alien received the notice. Alrefae v. Chertoff, 471 F.3d 353,

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359 (2d Cir. 2006); see also Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir. 2006). However, there
is a presumption that properly mailed notices are received by the addressee. Alrefae, 471 F.3d at
358-59. In the case of notices sent via certified mail, there is a "strong presumption" of effective
service, which may be overcome only by presenting "substantial and probative evidence" of
improper delivery or nondelivery. Grijalva, 21 I&N Dec. at 37 (finding that there "is no
requirement that the certified mail return receipt be signed by the alien or a responsible person at
his address to effect service."). The BIA has held that where an NTA or notice of hearing is
properly addressed and sent by regular mail according to normal office procedures, there is a
presumption of delivery, but it is weaker than the presumption that applies to documents sent by
certified mail. Matter of M-R-A-, 24 I&N Dec. 665, 673 (BIA 2008).

Where evidence indicates that a respondent would have appeared at his immigration
proceedings had he actually received notice of his hearing, the Second Circuit held that all of the
respondent's evidence - circumstantial or otherwise- should be considered to determine whether
the presumption of receipt of first class mail has been overcome. Silva-Carvalho Lopes v.
Mukasey, 517 F.3d 156, 160 (2d Cir. 2008). The BIA has noted that an IJ may consider
affidavits from the respondent and others who are knowledgeable about whether notice was
received; whether due diligence was exercised in seeking to redress the situation; any prior
applications for relief that would indicate an incentive to appear; the respondent's prior
appearance at immigration proceedings, if applicable; and any other circumstances indicating
nonreceipt of the notice. M-R-A-, 24 I&N Dec. at 674. Additionally, the respondent can
overcome the presumption of delivery by submitting an affidavit that he did not receive the
notice and that he had continued to reside at the address at which it was sent, as well as other
circumstantial evidence indicating that he had an incentive to appear, and by exercising due
diligence in promptly seeking to redress the situation by obtaining counsel and requesting
reopening of the proceedings. Matter ofC-R-C-, 24 I&N Dec. 677, 680 (BIA 2008).

The Court notes that the Respondent failed to submit any evidence corroborating his
claim that he was outside the U.S. when the INS served the NTA. In his Motion to Reconsider,
the Respondent indicates that his affidavit was inadvertently omitted from the Motion to Reopen
submission. See Motion to Reconsider at 1. A motion to reconsider, however, must be based
"on the previous factual record," which in this case lacked any evidence in support of the
Respondent's claim that he was living outside the U.S. at the time the NTA was mailed to his
address in the U.S. See Respondent's Motion to Reopen; see also 0-S-G-, 495 F.3d at 36-37.
As the Respondent failed to provide this affidavit along with the motion to reopen, it does not
form part of the factual record to be considered in adjudicating the Respondent's Motion to
Reconsider. While the Respondent's Motion to Reopen included documents noting that he was
in Venezuela as of March 15, 2002 and that he re-entered the U.S. on March 26, 2002, there is no
objective corroboration that he was outside the U.S. by April 19, 2000. See Respondent's

5
Motions, Tab C. Therefore, the relevant factual record lacks any evidence to rebut the
presumption of delivery.1

Even if the Court were to take the Respondent's recently filed affidavit into
consideration, the Court finds that the record does not include sufficient evidence to rebut the
presumption of delivery in his case. First of all, the Court notes that the Respondent's affidavit

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lacks any detail regarding his departure from the U.S. or his time spent in Venezuela. Instead, it
generally states that "[i]n February of 2000, [he] traveled to Venezuela." See Respondent's
Motion to Reconsider at 6. The Court therefore finds that this affidavit contains insufficient
detail to overcome the presumption of delivery.

Moreover, the Respondent did not submit any additional evidence, circumstantial or
otherwise, corroborating his alleged departure from the U.S. prior to the service of the NTA. For
instance, the record does not contain a declaration by his wife, copies of airline tickets, or even
copies of his passport, evidencing his departure prior to April 28, 2000. See M-R-A-, 24 I&N
Dec.at 665 (indicating that in a motion to reopen an in absentia order alleging non-receipt of the
NTA, an IJ may consider various factors, including affidavits from family members, as well as
other circumstances indicating possible nonreceipt of notice). The Respondent contends that the
I-130 Petition filed by his wife on April 3, 2000 constitutes proof that he was not in the U.S. as
of that date and put DHS on notice of his new residence. See Respondent's Motions, Tabs A-B;
see also Respondent's Motion to Reconsider at 2. The Court notes, however, that Question 14
on the 2000 I-130 Petition, which asks "[i]f your relative is currently in the U.S., complete the
following [...]" is filled out, thus contradicting his claim that this document evidences that he
was in Venezuela as of April 3, 2000. Id.

Lastly, the Court finds that the Respondent did not exercise due diligence in reopening
his proceedings, as he waited nearly sixteen years before filing a motion to reopen. See C-R-C-,
24 I&N Dec.at 680 (finding that a respondent's due diligence in seeking to reopen proceedings
is a "significant" factor in overcoming the weaker presumption of delivery of an NTA sent by
regular mail). Although he claims he only learned of his in absentia order upon applying for
naturalization on August 1, 2015, he did not file a motion to reopen until November 14, 2016.
The Court finds that the Respondent's delay of over a year does not amount to due diligence. Cf.
C-R-C-, 24 I&N Dec. at 680 (finding the respondent exercised due diligence when he
"immediately sought assistance" from counsel and filed a motion to reopen within one month of
the in absentia order of removal). Accordingly, the Respondent did not rebut the presumption of
delivery in this case.

In conclusion, the Respondent failed to identify a material error of law or fact to warrant
the Court reconsidering its ruling. As a result, the Court denies the Respondent's Motion to
Reconsider.

1 Since OHS did not submit the return receipt evidencing the NTA's delivery via certified mail, the Court will not
apply the stronger presumption of delivery to the Respondent's case. Therefore, instead of requiring that the
Respondent provide "substantial and probative evidence" of non-delivery or improper delivery, the Court will apply
the weaker presumption of delivery related to notices sent by regular mail. See M-R-A-, 24 I&N Dec. at 673. The
Respondent, however, failed to produce sufficient evidence to rebut this weaker presumption.

6
.
,

ORDER

IT IS HEREBY ORDERED that the Respondent's Motion to Reconsider is DENIED.

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Date Barbara Nelson --

Immigration Judge