U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pzke, Suue 2000

Falls Church, Vzrgmza 22041

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Bremer, Hans J., Esq. OHS/ICE Office of Chief Counsel - BOS
Bremer Law & Associates, LLC P .0. Box 8728
190 Broad Street Boston, MA 02114
Suite 1E
Providence, RI 02903

Name: C -C , M A 36

Date of this notice: 9/29/2017

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:
Greer, Anne J.
Kelly, Edward F.
Kendall Clark, Molly

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: M-C-C-, AXXX XXX 436 (BIA Sept. 29, 2017)
 U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 436 - Boston, MA Date:

SEP 2 9 2017
In re: M C -C

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Hans J. Bremer, Esquire

APPLICATION: Reopening; remand

The respondent, a native and citizen ofGuatemala, has appealed from the Immigration Judge's
March 22, 2017, decision. In that decision, the Immigration Judge denied the respondent's motion
to reopen his removal proceedings in which he was ordered removed in absentia on October 6,
2014. The Department ofHomeland Security ("OHS'') has not filed an opposition to the appeal.
The appeal will be sustained, the motion to reopen will be granted, the in absentia order will be
rescinded, and the record will be remanded for further proceedings.

We review for clear error the findings offact, including the determination of credibility, made
by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i) (2017). We review de novo all other issues,
including issues oflaw,judgment, and discretion. 8 C.F.R. 1003.l(d)(3)(ii).

The respondent entered the United States on June 23, 2014, as a minor. The respondent was
taken into custody, and the OHS served him with a Notice to Appear (Form 1-862). The respondent
was released from detention into the custody ofhis father. The respondent and his father provided
the OHS with an address in Rhode Island at which they could be served with the notice ofhearing.
On September 24, 2014, the Immigration Court mailed a notice of hearing to the address the
respondent and his father had provided. The notice of hearing indicated that the respondent's
removal hearing was scheduled for October 6, 2014. The respondent did not appear at the October
2014 hearing and he was ordered removed in absentia. On March 8, 2017, the respondent moved
to reopen his removal proceedings and rescind the removal order, claiming that he did not receive
the notice ofhearing at the address he had provided. The Immigration Judge denied the motion in
a summary order and this appeal followed.

The respondent's motion to reopen is untimely. See 8 C.F.R. 1003.23(b)(4)(ii).

Nevertheless, he may move to rescind the in absentia order at any time ifhe establishes that he did
not receive notice of the removal hearing in accordance with sections 239(a)(l)-(2) of the
Immigration and Nationality Act, 8 U.S.C. 1229(a)(l)-(2) (2012). See section 240(b)(5)(C)(ii)
ofthe Act, 8 U.S.C. 1229a(b)(5)(C)(ii); see also 8 C.F.R. 1003.23(b)(4)(ii).

To overcome the presumption of receipt of a notice of hearing sent by regular mail, which is
weaker than the presumption applied to a notice of hearing sent by certified mail, an alien must
present sufficient evidence showing that the notice was not received at the most recent address

Cite as: M-C-C-, AXXX XXX 436 (BIA Sept. 29, 2017)
 436

provided. Matter ofM-R-A-, 24 l&N Dec. 665, 673 (BIA 2008).1 In this case, the respondent and
his father have submitted sworn statements indicating that they did not receive the notice of hearing
at the address provided and that they continued to live at this address when the notice was mailed
(Respondent's Motion at Tab D). The respondent and his father also state in their sworn statements
that they would have attended proceedings had they received the notice of hearing, and the
circumstantial evidence in this case indicates that they acted with due diligence in seeking to

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redress the situation after learning of the in absentia removal order by obtaining counsel and
requesting reopening (see Respondent's Motion at 1, Tab D; Respondent's Br. at 1-2). The
Immigration Judge did not address, nor question the veracity of, any of the evidence the respondent
submitted in support of his motion.

In light of this evidence, we conclude that the respondent has overcome the presumption of
delivery of the notice of hearing pursuant to the standards set forth in Matter of M-R-A-. See
Matter of C-R-C-, 24 l&N Dec. 677, 679-80 (BIA 2008) (concluding that reopening was
appropriate where an alien had submitted similar evidence indicating that he had not received
notice). We will therefore sustain the respondent's appeal, reopen his removal proceedings,
rescind the in absentia removal order, and remand the record for further proceedings. Accordingly,
the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: These proceedings are reopened, the Immigration Judge's in absentia
order is rescinded, and the record is remanded to the Immigration Court for further proceedings.

1 We agree with the respondent that neither the Act nor the regulations require an alien to submit
an application for relief along with a motion to reopen asserting that an alien did not receive notice
of his or her removal hearing (see IJ at l; Respondent's Br. at 7-10). See sections 239(a)(l)-(2),
240(b)(5)(C)(ii) of the Act; see also 8 C.F.R. 1003.23(b)(4)(ii).

Cite as: M-C-C-, AXXX XXX 436 (BIA Sept. 29, 2017)
 ( (

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BOSTON, MASSACHUSETTS

)
In the Matter of: )

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

)
M C C ) A 436
)
)
In Removal Proceedings )
------- )

ORDER OF THE IMMIGRATION JUDGE

It is HEREBY ORDERED that the respondent's-Motion To Reopen be:

D GRANTED UJ1}E NIED because:

m(JlLlu.df'u...
D The respondent does not oppose the motion.

D A response to the motion has not been filed with the court.

D Good cause has been established for the motion.

D The court agrees with the reasons stated in the opposition to the motion.

D The motion is untimely per-------- ------

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Other: f!_lu<Jt 11U"'2m:J US- vUf/J. NfJLl'J/
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Date Robin E. Feder

Immigration Judge

CERTIFICATE OF SERVICE

This document was served by:

Mail D Personal Service

2----
To: D Alien D Alien c/o Custodial Officer lien's Atty/Rep HS

Date: fa "Jr+ sy: cour1s1aff