\

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Qffice of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church. Virginia 22041

OHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Name: CARRERA-REYES, JAIRO

A 074-259-776

Date of this notice: 3/21/2016

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

DcnrtL, tt1/Vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.
Grant. Edward R.
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Jairo Carrera-Reyes, A074 259 776 (BIA March 21, 2016)

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Larrea, Faustino Bersosa

Attorney at Law
P.O. Box 191947
Dallas, TX 75219

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A074: 259 776 - Dallas, TX

Date:

In re: JAIRO CARRERA-REYES

MAR 2 1 2015

APPEAL
ON BEHALF OF RESPONDENT: Faustino B. Larrea, Esquire
APPLICATION:

Reopening

The respondent has appealed the Immigration Judge's decision dated August 27, 2015,
denying his motion to reopen. 1 The respondent had previously been ordered removed in absentia
for his failure to appear for the scheduled hearing on May 4, 2015. The appeal will be sustained,
proceedings will be reopened, and the record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including credibility
determinations and the likelihood of future events, under a "clearly erroneous" standard.
8 C.F.R. 1003.l(d)(3)(i); Matter ofZ-Z-0-, 26 I&N Dec. 586 (BIA 2015). We review all other
issues, including questions of law, judgment, or discretion, under a de novo standard. 8 C.F.R.
1003.l(d)(3)(ii).
The Board possesses discretion to reopen or reconsider cases sua sponte. See 8 C.F.R.
1003.2(a); see also Matter ofG-D-, 22 I&N Dec. 1132 (BIA 1999); Matter ofJ-J-, 21 I&N
Dec. 976 (BIA 1997). Based on the totality of the circumstances in this case, we will grant the
respondent's motion to reopen to rescind his in absentia order pursuant to our sua sponte
authority. See 8 C.F.R. 1003.2(a); see also Matter ofJ-J-, supra. 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ORDER: The appeal is sustained, the in absentia order of removal is rescinded, the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.

Based on a review of the footnote in the Immigration Judge's decision dated August 27, 2015,
it is clear that the Immigration Judge meant that A075 885 423 (see Notice to Appear, issued on
May 13, 2014), was consolidated with the file herein, A074 259 776, on August 1, 2014. See
'Notice to the Executive Office for Immigration Review' from DHS Assistant Chief Counsel,
filed on August 1, 2014.

Cite as: Jairo Carrera-Reyes, A074 259 776 (BIA March 21, 2016)

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS
)

)
)
)

CARRERA-REYES, Jairo
RESPONDENT

IN REMOVAL PROCEEDINGS
A 074-259-776

CHARGE:

Section 21.2(a)(6)(A)(i) of the Immigration and Nationality Act, as .

amended, in that you are an alien present in the United States without
being admitted or paroled, or who arrived in the United States at any time
or place other than as designated by the Attorney General.

APPLICATION:

Motion to Reopen

ON BEHALF OF THE RESPONDENT:

Faustino B. Lanea, Esq.
P.O. Box 191947
Dallas, Texas 75219

ON BEHALF OF THE DEPARTMENT

OF HOMELAND SECURITY:
Paul B. Hunker Ill, Esq.
Chief Counsel- OHS/ICE
125 E. John Carpenter Freeway, Ste. 500
Da1Jas, Texas 75242

WRITTEN DECISION OF THE IMMIGRATION JUDGE

I.

Factual & procedural history

The Respondent is a native and citizen of Mexico. Exhibit l. He arrived in the United

States at an unknown date and time, without being admitted or paroled after inspection by an
immigration officer.

Id.

The Respondent was taken into ICE custody on May 13, 2014,

following an arrest and conviction for possession of a weapon. See Exhibit 4. He was
subsequently served with a Notice to Appear (NTA) 1 charging him with removability under
section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA or Act). Exhibit l. During

The NTA had the A-nwnber: 074-259-776. That A-file was consolidated into A-file number 074-259-776 on
August l, 2014.

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IN THE MATTER OF:

a hearing before the Oakdale, Louisiana Immigration Court, the Respondent admitted to the
factual allegations contained in the NT A and conceded to the charge of removal.
On August 5, 2014, the Respondent was released from ICE custody. See Exhibit 2.

filed a motion for change of venue to Dallas, Texas with that same address. See Motion for
Change of Venue (dated July 31, 2014). That request was granted on August 5, 2014, and on
February 7, 2015, a Notice of Hearing was mailed to the Respondent at 6333 Christensen Dr.,
Dallas, TX 75227, notifying him that he was scheduled to appear before the Dallas Immigration
Court on May 4, 2015 at 9:00 A.M. See Exhibit 3.
At the May 4, 2015 hearing, the Respondent did not appear. The Court concluded that
notice was proper and proceeded in absentia pursuant to sect.ion 240(b)(5)(A) of the Act. During
the hearing, the Government submitted Form I-213, which established the tmth of the factual
allegations contained in the NTA.

Exhibit 4.

Based on the evidence submitted and the

Respondent's prior admissions, the Court found remova.bility established as charged and ordered
the Respondent removed to Mexico. See Decision of the Immigration Judge. That decision was
mailed to the Respondent at 6333 Christensen Dr., Dallas, TX 75227.
The Respondent, through counsel, has now filed a motion to reopen claiming that his in
absentia order should be rescinded basd on lack of notice. The Govemment has not fiJed a

response.
II.

Applicable Law

If an alien does not attend a removal hearing after written notice has been provided to the
alien or the aJien's counsel of record, the alien will be ordered removed in absentia if the
Government establishes by clear, unequivocal, and convincing evidence that written notice of the

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Upon release, he reported his address as 6333 Christensen Dr. Dallas, TX 75227. Id. He also

hearing was provided and that the alien is removable. INA 240(b )(S)(A). Adequate notice can
be accomplished through personal service, or if personal service is not practicable, through
service by mail to the alien. INA 239(a)( l ). Service by mail is proper upon proof of attempted

Within five days of any change of address, the alien must comp1ete and file a change of
address form (Fonn EOIR-33) with the immigration court. 8 C. F .R. l 003.15(d)(2). The NT A
informs the alien of his obligation to immediately provide a written record of any change in
address or telephone number and the consequences of failing to do so. See JNA 239(a)( l )(F).
The NTA also includes the consequences for failing to appear at a scheduled hearing. See INA
239(a)(l )(G). If the a1ien receives actual notice of the hearing or can be charged with receiving
constructive notice, through receipt of a NTA, then in absentia proceedings are thereafter
authorized. Matter ofG- Y-R-, 23 l&N Dec. 1 81, 1 86 (BIA 2001).
An in absentia order may be rescinded upon a motion to reopen filed at any time if an
alien did not receive. adequate notice of the hearing.

INA 240(b)(5)(C)(ii); 8 C.F.R.

1003.23(b)(4)(iii)(2). When written notice is properly addressed and sent to the alien by regular
mail according to nonnal office procedures, a presumption of delivery arises. Matter of M-R-A-,
24 I&N Dec. 665, 673 (BIA 2008). Once the presumption of delivery arises, the burden is on the
alien to provide proof that the document was not received. Id. at 674. The Court may consider
all relevant evidence of record to overcome the presumption of delivery.
Evidence may include, but is not limited to:
(I ) [T]he respondent's affidavit; (2) affidavits from family
individuals who are knowledgeable about the facts relevant to whether
received; (3) the respondent's actions upon learning of the in absentia

Id. at 673-74.

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delivery to the alien's most recently provided address. INA 239(c).

whether due diligence was exercised in seeking to redress the situation; (4) any
prior affitmative application for relief, indicating that the respondent had an
incentive to appear; (5) any prior application for relief filed with the Immigration

statutory eligibility for relief, indicating that the respondent had an incentive to
appear; (6) the respondent's previous attendance at Immigration Cow1 hearings, if
applicable; and (7) any other circumstances or evidence i ndicating possible non
receipt of notice.
Id. at 674.
A motion to reopen may also be submitted for the purpose of acting on an application for
relief. A motion based on an application for relief will not be granted unless it states the new
facts to be proved and is supported by affidavits or other evidentiary material. 8 C.F.R.
1 003.23(b)(3 ). The alien must also show that the evidence sought to be offered. is material, was
previously unavailable, and could not have been discovered or presented at the original hearing.
Id.

The motion must be accompanied by the appropriate application and all supporting

documents, and the Respondent must establish a ptima facie case of eligibility. See INS v.
Abudu, 485 U.S. 94, 1 04 (1988); INS v. Doherty, 502 U.S. 3 14 (1 992).

In addition, the Court may exercise its sua sponte authority to reopen in "tm]y
exceptional situations" where the interests of justice would be served. Matter of G-D-, 22 I&N
Dec. 1 1 32, 1 1 33-34 (BIA 1.999) see Matter ofJ-J-, 21 l&N Dec. 976, 984 (BIA 1997).
III.

Analysis
The Respondent claims Jack of notice. He argues that he "did not receive and/or was not

infom1ed of the Removal Hearing set on or about May 4, 201 5." See Motion to Reopen.

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Court or any prima facie evidenqe in the record or the respondent' s motion of

However, the record clearly indicates that a Notice of Hearing was sent to the Respondent at the
last known address he provided to the Court, that is 633 3 Christensen Dr., Dallas, TX 75227.

See Exhibit 3. The notice was never returned as undeliverable. In fact, according to the Notice

address. See Motion to Reopen. Therefore, the Court finds that written notice was properly
addressed and sent to the Respondent by regular mail according to normal office procedures.
Matter of
. M-R-A-, 24. l&N Dec. at 673. As such, a presumption of delivery arises. In his
motion, the Respondent makes no attempt to rebut this presumption. A bare assertion that he did
not receive notice is insufficient to meet his burden to show that the notice was not received.
Accordingly, the Court finds that the Respondent had proper notice.
The Respondent also seeks reopening to apply for adjustment of status based on an
approved 1- 1 3 0 petition. See Motion to Reopen. However, this relief was available and could
have been presented at his former hearing on May 4, 201 5. See 8 C.F.R. 1003.23(b)(3). Thus,
since the Respondent was given an opportunity to apply for this relief before the Court, his
request to reopen on that basis is also denied. See id.
Finally, the Court will decline to exercise its sua sponte authority to reopen these
proceedings as the Respondent has not demonstrated that

an

"exceptional situation" exists that

would warrant a favorable exercise of discretion. Matter ofJ-J-, 2 1 l&N Dec. at 984.
Accordingly, the following order will be entered:
ORDER
IT IS HEREBY ORDERED that the Respondent's Motion to Reopen is DE

Date: 2t11 day of August, 201 5

Dallas, Texas

Deitrich H. S1
Immigration Judge
5

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of Entry of Appearance filed by the Respondent's counsel, the Respondent still resides at that

\ ,...

U N I T E D STATES DE PARTMENT OF J US T I C E
EXECUT I VE OFFICE FOR IMM I GRAT I ON REV I EW
IMM I GRAT ION COU RT
DALLAS , TEXAS

I N THE MATTER OF :

CARRERA- REYES , JAI RO

Ju r i sd i c t i on was
Appear i s s ued by
Execu t i ve O f f i c e
r e s ponden t . S e e

'

- CA:S E: . . NO'. - - ; ro"7 4 - 5 9 - 7 7 6

DEC I S ION

e s tabl i s h e d i n this ma t t e r b y t he f i l i ng o f the Notice to

the Dep a rtme n t o f Home l a nd S e cu r i t y , w i t h t h e
for Immi gr a t ion Rev i e w a n d b y s ervi c e upon t h e
8 C . F . R . 1 0 0 3 . 1 4 ( a ) , 1 03 . Sa .

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

RES PON DENT IN REMOVAL P ROCEEDING S

Ma y 4 , 2 0 1 5

The respondent was provi ded w ri t t en not i f i c a t i on o f t he t ime , d a t e and

l o c a t i o n o f t he re spond e n t ' s removal h earing . The r, sponde n t was a l so
provi de d a wr i t t e n war n ng t h a t fai l ur e t o a t t e nd t h i s h e a r i n g , for o t he r
t h a n excep t i o n a l ci r cum s t an ce s , would r e s u l t i n t h e i s s ua n c e o f a n order o f
r emova l in t he re spon d e n t ' s absence prov ided t ha t rernovab i l i t y wa s e s t abl i s hed .
De s p i t e t h e wri t t en not i f i ca t i on provided , t h e r e sponde n t fa i l ed to appea r
a t h i s / h e r he a ri ng , and n o e x cept i onal c i r cums t a n c e s we r e s hown for h i s / her
f a i lure t o appe a r . Th i s h e a r i'hg wa s , t here fore , condu c t ed in abs e n t i a pursuant
t o s e c t ion
2 4 0 ( b ) { 5 ) (A) o f t he Immi gr a t ion and Na t i on a l i t y Ac t .
.,

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t
1

At a pri or h e a r i n g t h e responde nt admi t t e d t h e fac t u a l a l l e ga t i on s

I f i nd
in t h e Not i c e to App ea r a n d conc eded r emovab i l i t y .
removabi l i t y e s t abl i s he d a s cha rged .
Th Depart me n t o f Home l and S e curi t y s ubmi t t e d documen t a ry
evidence r e l a t i n g t o t he re spondent whi c h e s t ab l i s h e d the t ruth
o f the fa c t u a l a l l e ga t i ons contained in t he N o t i c e t o Appear . I
f i nd r emovabi l i t y e s t abl i s h e d a s cha rged .

I furt h e r f i nd t hat t h e r e s p onde n t ' s f a i lure t o appe a r and proce ed wi th

ay appl i ca t i on s for r e l i e f from remova l cons t i t u t e s an bandonrnen t
o f a ny pendi ng appl i c a t i o n s a nd a ny appl i ca t i o n s t h e r e sponden t ma y have
been e l i g i ble t o .f i l e . Thos e app l i c a t i ons a r e de emed abando n e d and .. .
de n i ed for la c k o f pro s e cu t i o n . S e e Ma t t er o f Pe a r s on , 1 3 I & N Dec . 1 5 2
( BI A 1 9 6 9 } ; Mat t e r o f P e r e z , 1 9 I & N Dec . 4 3 3 ( B IA 1 9 8 7 ) ; Ma t t e r, o f R- R ,
2 0 I & N Dec . 5 4 7 ( B I A 1 9 9 2 } .
ORDER :

The r esponde n t s ha l l be removed to MEXICO

on t he charge ( s }

co n t a i n e d i n the Not i ce t o Appe a r .

cc :

As s i s t a n t Di s t r i c t Cou n s e l
At t o rney f o r Re sponden t / Re s ponaent

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J_.,.. .. ........

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:-EP 2015
Received
BIA

Jose Jairo Carrera-Reyes

A# 074-259-776
Respondent

IN REMOVAL PROCEEDINGS

AFFIDAVIT OF JOSE JAffiO CARRERA REYES

COMES NOW, Jose Jairo Carrera-Reyes, Af.fiant, and swears that the
following information is tTue and correct:
I . My name is Jose Jairo Carrera-Reyes. I was born on January 22, 1 97 1 in Mexico.
I am 44-years of age, and of sound mind and health.
2. I came to the United States without inspection on or about June of 1 986.
3 . I am the beneficiary o f an approved I-1 30 Petition received on December 3 1 ,
1 997.
4. With respect to the Notice of Hearing, I did not receive and/or was not informed
of the Removal Hearing set on or about May 4, 20 1 5 .
The statements contained within this Affidavit are true and within my personal
lrnowledge."

Jose Jairo Carrera-Reyes

. Affian.t on oath swears that the statements are true and correct based on his or her
personal knowledge and af:fiant has:

...,,..JJ.......

SWORN TO AND SUBSCR1BED BEFORE

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AFFI DAVIT OF JOSE JAJ RO CARRE.RA REYES

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IN THE MATTER OF:

CLAUDIA DE LEON

My Commission Expires
My 3, 201 8

(printed name)

My commission expires:

[Notary Seal]

AFFlDAV.IT OF JOSE JAI RO CARR.ERA REYES

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Notary Public in and for the State of Texas.