U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virg1ma 22041

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

Castaneda, Jason OHS/ICE Office of Chief Counsel - HOU
Law Office of Jason Castaneda 126 Northpoint Drive, Suite 2020
4014 Gulf St. Houston, TX 77060
Houston, TX 77087

Name: ORTEGA-ANAYA, ROBERTO M ... A 209-245-963

Date of this notice: 8/17/2017

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:
Grant, Edward R.
Kelly, Edward F.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Roberto Manuel Ortega-Anaya, A209 245 963 (BIA Aug. 17, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A209 245 963 - Houston, TX Date:

AUG 1 7 2017
In re: Roberto Manuel ORTEGA-ANAYA

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

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Jason Castaneda, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of El Salvador, who was ordered removed from the United
States in absentia on November 10, 2016, has filed an appeal from the Immigration Judge's
decision dated February 28, 2017, denying his motion to reopen. The respondent filed an appeal
brief. The Department of Homeland Security (OHS) has not filed a brief in opposition to the
appeal. 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). 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).

Pursuant to section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C.

1229a(b)(5)(C), an in absentia removal order may be rescinded upon a motion to reopen filed at
any time if the alien demonstrates that he or she did not receive notice of the hearing in accordance
with sections 239(a)(l) or (2) of the Act, 8 U.S.C. 1229(a)(l) or (2). Section 240(b)(S)(C)(ii) of
the Act; Matter o/Guzman, 22 I&N Dec. 722, 722-23 (BIA 1999).

In Matter ofM-R-A-, 24 I&N Dec. 665, 674 (BIA 2008), we provided the following framework
for evaluating motions to reopen following an in absentia order where the notice of hearing was
sent by regular mail:

In determining whether a applicant has rebutted the weaker presumption of delivery

applicable in these circumstances, an Immigration Judge may consider a variety of factors
including, but not limited to, the following: (1) the applicant's affidavit; (2) affidavits from
family members or other individuals who are knowledgeable about the facts relevant to
whether notice was received; (3) the applicant's actions upon learning of the in absentia
order, and whether due diligence was exercised in seeking to redress the situation; (4) any
prior affirmative application for relief, indicating that the applicant had an incentive to
appear; (5) any prior application for relief filed with the Immigration Court or any prima
facie evidence in the record or the applicant's motion of statutory eligibility for relief,
indicating that the applicant had an incentive to appear; (6) the applicant's previous
attendance at Immigration Court hearings, if applicable; and (7) any other circumstances
or evidence indicating possible nonreceipt of notice. We emphasize that these are just
examples of the types of evidence that can support a motion to reopen. Immigration Judges

Cite as: Roberto Manuel Ortega-Anaya, A209 245 963 (BIA Aug. 17, 2017)
 A209 245 963

, are neither required to deny reopening if exactly such evidence is not provided nor obliged
to grant a motion, even if every type of evidence is submitted. Each case must be evaluated
based on its own particular circumstances and evidence.

We conclude that the respondent's motion succeeded in rebutting the presumption of delivery
of the hearing notice in his case. The respondent's motion included his signed affidavit in which

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

he claimed that he had not received any communication from the Immigration Court until
November 12, 2016, two days after his scheduled hearing. The respondent asserts that he would
have attended any hearing if he had received notice in a timely manner. The respondent was
detained by DHS in August 2016, and was released on payment of a bond for $12,000. The
respondent contends that this large bond payment and his intent to apply for asylum gave him
substantial incentive to appear of any scheduled hearings (Respondent Motion to Reopen). The
respondent states that he provided DHS the mailing address where he could be reached, 13623
Oleoke Ln., Houston, Texas 77015. The notice of hearing was sent by regular mail to this address
on October 13, 2016 (Exh. 2). The respondent claims that he received the notice of hearing on
November 12, 2016, and that it informed him of his hearing held on November 10, 2016. The
Immigration Judge denied the motion to reopen based on the respondent's failure to file an
application for relief and accompanying supporting documents pursuant to 8 C.F .R. 1003 .23(b)(3).
The aforementioned regulation does not pertain to motions to reopen in absentia orders of removal
premised upon lack of notice. Upon learning of the in absentia order entered on
November 10, 2016, the respondent exercised due diligence in seeking to redress the situation by
consulting counsel and promptly filing a motion to reopen the in absentia order of removal on
November 23, 2016. In these circumstances, the evidence of record does not support a finding
that the respondent can be charged with receiving notice of the hearing and failing to appear.
Accordingly, the following orders will be entered.

ORDER: The appeal is sustained, and the Immigration Judge's decision is vacated. The order
of removal entered in absentia, on November 10, 2016, is rescinded.

FURTHER ORDER: The record is rmanded for to the Immigration Judge for further
proceedings and the entry of a new decision consistent with the foregoing opinion.

'
FOR BOARD

Cite as: Roberto Manuel Ortega-Anaya, A209 245 963 (BIA Aug. 17, 2017)
..

U.S DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
HOUSTON, TEXAS

IN THE MATTER OF: IN REMOVAL PROCEEDINGS

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

ORTEGA-ANA YA, ROBERTO
MANUEL

Respondent A # 209-245-963

In the Matter of: ORTEGA-ANAYA. ROBERTO MANUEL A Nwnber: 209-245-963

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of MOTION TO REOPEN IN ABSENTIA ORDER OF REMOVAL, it

is HEREBY ORDERED that the motion be

0 GRANTED l!Yiii'NIED because:

ODHS does not oppose the motion.

CJThe respondent does not oppose the motion.
CJ A response to the motion has not been filed with the court.
OGood cause has been established for the motion.

:
e court agrees with the reasons stated in the opposition to the motion.
oti un pe

Deadlines: JzQ_.
C-f
JL tooYl3
- Ch r ?) _,...

0 The application(s) for relief mus e filed

OThe respondent must comply with DHS bi

J.7/JAb

Certificate of Service

Date: By: Court Staff ( AJ' .

rx
This document was served by: U.Mail f\tPersonal ServictJ
To: []Alien [ J lien c/o Custodial Officelien's Atty/Rep
'7