RESPONDENTS MOTION TO REOPEN, REMAND, AND FOR AUTOMATIC STAY OF REMOVAL

DETAINED
___________________, Esq. Law Office of _______, P.A. Fifth Avenue North St. Petersburg, FL 33713

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS

_______________________________ ) In the Matter of: ) ) __________, ) ) In removal proceedings ) _______________________________)

File Nos.: A:

RESPONDENTS MOTION TO REOPEN, REMAND,

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AND FOR AUTOMATIC STAY OF REMOVAL

The Respondent respectfully request that this Honorable Board reopen proceedings, under 8 C.F.R. 1003.2(a), that it remand this case to the Immigration Judge for furthis proceedings, and that it allow the automatic stay provisions of section 240(b)(5)(C)(ii) of the Act (INA) to ensue and attach. In support thiseof, the Respondent, through undersigned counsel, respectfully asserts and shows onto the Board as follows:
1. The Board possesses discretion to reopen cases sua sponte. 8 C.F.R.

1003.2(a); see also Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). The Board exercises said discretion sparingly as an extraordinary remedy reserved for truly exceptional situations. Matter of G-D-, 22 I&N Dec. 1132, 1133 -1134 (BIA 1999). The Respondent respectfully submits that his case requires such a remedy, as the Respondents due process rights were violated by the Department of Homeland Securitys (DHS) failure to properly serve the Respondent with a Notice to Appear. Exhibit 1, 5, 13, and 14; Exhibit 2, 7; Exhibit 3 at p. 2, 2.1
2. The Respondent has stated, under oath, that he never received a Notice to

Appear for the instant removal proceedings. Ex. 1, 5, 13, and 14. The
We include the brief on appeal from prior counsel in 2004, not as substantive evidence, but to illustrate that the Respondent has always maintained and asserted that he never received a Notice to Appear in this case.
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entry of an in absentia order of removal is inappropriate where the record reflects that the alien did not receive, or could not be charged with receiving, the Notice to Appear. Matter of G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001); Matter of Huete, 20 I&N Dec. 250, 253 (BIA 1991); see INA 239(a)(1); see generally Contreras-Rodriguez v. U.S. Atty. Gen., 462 F.3d 1314 (11th Cir. 2006). In the case at hand, the Respondent was removed in absentia on October 11, 2002, but he never received, nor can the DHS prove that the Respondent received, a Notice to Appear (NTA) prior to that date. Accordingly, the instant removal proceedings are defective ab initio, as was the in absentia order, which should prompt the Board to reverse said order, and remand to the Immigration Judge with orders to conduct further proceedings in this matter.
3. The DHS may argue that, assuming it did mail the NTA to the Respondent,

via regular mail, that mode of notice is sufficient. However, and again, assuming that the DHS did mail an NTA to the Respondent, said mode of service does not present as strong a presumption of notice as would personal service or service via certified mail. Salta v. I.N.S., 314 F.3d 1076 (9th Cir. 2002) (whise service of notice is attempted by regular as opposed to certified mail, same strong presumption of delivery does not arise, and less is required to rebut this weaker presumption). To wit, the Board has reopened

in absentia removal proceedings where the respondent can overcome the presumption of delivery of an NTA sent by regular mail, by submitting an affidavit stating that he or he did not receive the NTA, as well as by submitting other circumstantial evidence indicating that the Respondent had an incentive to appear. Matter of C-R-C-, 24 I&N Dec. 677 (BIA 2008); see Salta, 314 F.3d at 1076 (where alien has no motive to avoid removal proceedings, a sworn affidavit from alien that he or she did not receive notice of removal proceedings should ordinarily be sufficient to rebut presumption of delivery arising from attempted service by regular mail, and should entitle alien to evidentiary hearing to consider veracity of allegations).
4. In the case at hand, the Respondent has presented affidavits and other

evidence to attest that he never received an NTA, Exhibits 1-3, and he can further demonstrate that he has, and always had, every reason to want to comply with the procedures of his removal proceedings, as he is eligible for relief through Adjustment of Status, Exhibit 4, and through Cancellation of Removal, Exhibit 5-6, Tabs A-C, and G-N.
5. Moreover, as there is no time limitation for motions to reopen in absentia

orders based on lack of notice, Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004), the Board should exercise its sua sponte authority to reopen the

instant proceedings because to not do so would result in an egregious violation of the Respondents due process rights, the very rights that are at the core and foundation of our legal system. Aliens facing deportation are entitled to due process under the Fifth Amendment, encompassing a full and fair hearing and notice of that hearing. Dobrota v. INS, 311 F.3d 1206, 1210 (9th Cir. 2002). The Due Process Clause protects aliens in deportation proceedings and includes the right to a full and fair hearing as well as notice of that hearing. Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997).
6. Aside from the fact that the Respondents due process rights were violated

by the DHS failure to properly serve his with a Notice to Appear, the Board should also reconsider the fact that the Respondent was unable to attend his October 11, 2002, Master Calendar hearing because he was suffering from severe medical illnesses on the day of that hearing, which were indeed exceptional circumstances that would have made it impossible for the Respondent to appear for said hearing. The term "exceptional circumstances" refers to exceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien. INA 240(e)(1) (emphasis added); Matter of W-F-, 21 I. & N.

Dec. 503, 509 (BIA 1996). In the case at hand, the Respondent was suffering from a severe hemorrhage, a condition that causes heavy bleeding, anemia and severe pain, on October 11, 2002. Exhibit 5. The Respondent was also possibly suffering from a possibly life threatening aortic aneurysm that day as well. Id. These conditions led the Respondents doctor to order him to bed-rest for several days, one of them being October 11, 2002. Id.
7. The Board should also give weight to the other truly exceptional situations

surrounding this case. The Board should consider the immense hardship that will befall the Respondents family if the Respondent is deported. Exhibit 7, psychological evaluation of the Respondents wife and children; Tabs A-B, affidavits and statements from the Respondents wife and minor children. The Board should also consider that: the Respondent has numerous and ample family ties in the United States, Tabs C-F; that the Respondent has had a presence of long duration in the United States, Tabs G-H; that the Respondent is beloved by, and gives great and inspirational service to, his community, Tabs I-M; that the Respondent is a person of good moral character, Tab N; that the Respondent has property and business ties in the United States, Tab O-P; and that the Respondent would be deported to a country where crime is rampant, Tab Q.

8. Moreover, DHS Counsel should not oppose this motion, as DHS own

guidelines on Prosecutorial Discretion, Exhibit 8 at pages 5 and 7, militate in favor of DHS Counsel embracing the equities and arguments brought forth in this motion, and joining the Respondent in requesting that the Board indeed reopen and remand this case for further proceedings.
9. Lastly, the Respondent begs the Board to allow the automatic stay

provisions of INA 240(b)(5)(C)(ii), and of Matter of Cecilia RiveraClaros, 21 I. & N. Dec. 232, 234 (BIA 1996), to ensue in this matter, thereby staying the Respondents removal from the United States until the instant removal proceedings reach their ultimate conclusion. FOR THESE REASONS, the Respondent respectfully moves the Board of Immigration Appeals to reopen proceedings, under 8 C.F.R. 1003.2(a), to remand this case to the Immigration Judge for further proceedings, and to allow the automatic stay provisions of section 240(b)(5)(C)(ii) of the Act to ensue and attach. RESPECTFULLY SUBMITTED on this 9th day of December, 2008.

_______________
, Esq. Florida Bar # LAW OFFICE OF _______________, P.A. Fifth Avenue North St. Petersburg, Florida 33713 Phone: (727) Fax: (727) Email: __________
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CERTIFICATE OF SERVICE
On December 9, 2008, I, Attorney, mailed, via U.S. Priority Mail, a copy of this motion to the Office of the Chief Counsel/DHS-ICE at 26 Federal Plaza, 11th Floor, New York, NY 10278.

_______________
_____________, Esq.