GASPAR-SANCHEZ, PAULINO 803 EAST ROSE AVE., APT 2 DES PLAINES, IL 60016-3242

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 2000 Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - CHI 525 West Van Buren Street Chicago, IL 60607

Name: GASPAR-SANCHEZ, PAULINO A 200-836-708

Date of this notice: 7/15/2014

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

Enclosure

Panel Members: Grant, Edward R. Guendelsberger, John Adkins-Blanch, Charles K.

Sincerely,

DOYutL CtVvV

Donna Carr Chief Clerk

williame Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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. U.S. Department of Justice Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A200 836 708 - Chicago, IL

In re: PAULINO GASPAR-SANCHEZ

IN REMOVAL PROCEEDINGS

CERTIFICATION

ON BEHALF OF RESPONDENT: Pro se

ON BEHALF OF DHS:

APPLICATION: Reopening

Kristin Linsley Assistant Chief Counsel

Decision of the Board of Immigration Appeals

Date: JUL 15 Z014

The respondent has appealed the Immigration Judge's January 10, 2013, decision that denied the respondent's motion to reopen proceedings in which he was ordered removed in absentia. In order to resolve any issues concerning the timeliness of the appeal, the Board takes the appeal on certification. See 8 C.F .R § 1003 .1 ( c ). The appeal will be sustained and the record will be remanded.

We review Immigration Judges' findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R §§ 1003.l(d)(3)(i), (ii).

On review, in light of the totality of the circumstances presented, we find that the respondent established exceptional circumstances for his failure to appear at the scheduled removal hearing. See section 240(b)(S)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(SXC). In this case, the final notice of hearing sent to the respondent does not draw attention to the fact that the hearing location had been changed. Moreover, the day after the respondent failed to appear for his hearing, he submitted a letter to the Immigration Court stating that he appeared at the previous hearing location. The record also reflects that the respondent has a history of prior appearances and that he was diligent in filing his motion to reopen. Accordingly, the appeal will be sustained and the in absentia removal order will be rescinded. These proceedings will be reopened to allow the respondent another opportunity to appear for a hearing.

ORDER: The appeal is sustained, and the in absentia removal order is rescinded.

FURTHER ORDER: The proceedings are reopened, and the record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and the entry of a new decision.

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MACNEIL, ROSA MARIA

\,_,·

UNITED:$TATES DEPARTMENT OF JUSTICE EXECUTIVE.OFFICE FOR IMMIGRATION REVIEW

I�IGRATION COURT 525 W. VAN BUREN, SUITE 500

CHICAGO, IL 60607

. .. . ; ' .

8 WEST EMERSON STREET ARLINGTON HTS., IL 60005

Date: Jan 10, 2013

File A200-836-708

In the Matter of: GASPAR-SANCHEZ, PAULINO

_______ Attached is a copy of the.written decision of the Immigration Judge. This decision is fi�al:)�·nte� .�:.}m appeal is taken to the Board of Immigration Appeals.:· ·.T��' .'er}c�9sed copies of FORM EOIR 26, Notice of Appeal, and FORMEOIR 27, Notice of Entry as Attorney or Representative, properly exe�uted, must be filed with the Board of Immigration Appeals on.or before The appeal must be accompanied by proof of paid fee ($110.00).

Enclosed is a copy of the oral decision.

Enclosed is a transcript of the testimony of record.

You are granted until to submit a brief office in support of your appeal.

posing counsel is granted until to submit a brief in opposition to the appeal.

Enclosed is a copy of the order/�the Immigration Judge.

All papers filed with the Court shall be accompanied by proof of service upon opposing

cc: KRISTIN MUSTO LINSLEY 525 W. VAN BUREN CHICAGO, IL 60607

I •

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·--- ...._.

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT CHICAGO, ILLINOIS

File#: 200-836-708 Date: January 10, 2013

In the Matter of:

Paulino GASPAR-SANCHEZ

Respondent.

) ) ) ) )

fN REMOVAL PROCEEDINGS

CHARGE: INA § 212(a)(6)(A)(i) - Present in the United States without being admitted or paroled, or arrived at any time or place other than as designated by the Attorney General.

APPLICATION: Motion to Reopen

ON BEHALF OF THE RESPONDENT: Pro Se

ON BEHALF OF THE GOVERNMENT: Kristin Musto Linsley Assistant Chief Counsel Department of Homeland Security 525 West Van Buren Street, Suite 701 Chicago, Illinois 60607

DECISION OF IBE IMMIGRATION JUDGE

For the reasons that follow, the respondent's motion to reopen will be denied.

I. BACKGROUND

The respondent, a native and citizen of Mexico, entered the United States at an unknown place on an unknown date. On July 6, 2010, he was arrested in Chicago, Illinois, for driving under the influence.1 On July 26, 2010, the Department of Homeland Security (DHS) initiated removal proceedings against him by filing a Notice to Appear (NT A) with the Chicago Immigration Court, charging him with removability under INA § 212(a)(6)(A)(i). The respondent was personally served with the NT A, which provided that he was ordered to appear before an Immigration Judge at 55 East Monroe Street in Chicago on a date to be set. See Exh. I (NT A); Exh. 3 (Form I-213).

On August 25, 2010, a hearing notice was mailed to the respondent, informing him that he had been scheduled for a hearing on March 27, 2012, at 55 East Monroe Street. On January

1 The respondent has also been arrested for domestic battery and driving on a suspended license, on July 3, 2003, and February 7, 2009, respectively. See Exh. 3 (Form 1-213).

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27, 2011, another hearing notice was mailed to him, informing him that his hearing had been rescheduled for May 25, 2011. Both notices were sent to the respondent's address of record, 803 East Rose Avenue in Des Plaines, Il1inois.

The respondent appeared in person at his May 25, 2011, hearing, at which time his case was continued to November 6, 2012. He was personally served with a hearing notice advising him to appear at 55 East Monroe Street on November 6th. At the hearing, the respondent confirmed on the record ·that he was still living at 803 East Rose A venue in Des Plaines. The following day, May 26, 2011, the respondent was mailed a hearing notice changing the time of his November 6th hearing. Then, on October 21, 2011, he was mailed a hearing notice changing the location of his November 6th hearing to 525 West Van Buren in Chicago. See Exh. 2. Both hearing notices were mailed to the respondent's Des Plaines address.

The respondent failed to appear for his November 6, 2012, hearing,'however, and the Court ordered him removed in absentia on the basis of the Form I-213, Record of Deportable/lnadmissible Alien, submitted by the DHS. See Exh. 3. The Court mailed the respondent a copy of his removal order to his Des Plaines address. On November 7, 2012, the respondent filed the instant motion to reopen. The DHS did not file a response.

II. ANALYSIS

INA § 240(b )(S)(A) provides that an alien who, after receiving written notice, fails to appear for a hearing in removal proceedings must be ordered removed in absentia if the DHS establishes "by clear, unequivocal, and convincing evidence" that written notice was provided and that the alien is removable. A removal order entered in absentia may only be rescinded (1) upon a motion to reopen filed within 180 days after the date of the order of removal demonstrating that the failure to appear was because of exceptional circumstances, or (2) upon a motion to reopen filed at any time demonstrating that the alien did not receive notice in accordance with INA § 239(a) or that the alien was in Federal or State custody at the time and that the failure to appear was through no fault of the alien. INA§ 240(b)(5)(C).

In the instant case, the respondent was ordered removed in absentia because the DHS had established his removability by clear, unequivocal, and convincing evidence. In his motion to reopen, he states, "I missed my immigration hearing scheduled for yesterday, November 6th

2012, because the address given on the notice I was sent was incorrect. I went to the old address at 55 E. Monroe Street and found the office closed. I did not have transportation or money to make it to the new address for my appointment."

The record reflects that, on October 21, 2011, the respondent was mailed a hearing notice, in accordance with INA§ 239(a)(2), changing the location of his November 61h hearing to 525 West Van Buren. See Exh. 2. Like the other hearing notices in the record, the October 21st notice was mailed to the respondent at his Des Plaines address. The respondent has not alleged that he moved or that the notice was defective in any way. Where a hearing notice is properly addressed and sent by regular mail according to normal office procedures, there is a presumption of delivery. Matter of M-R-A-, 24 I&N Dec. 665, 673-74 (BIA 2008). In determining whether the presumption has been rebutted, the Court must consider all relevant evidence. Id. Here,

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neither the October 21st notice, the other hearing notices, or the in absentia removal order-all of which were mailed to the respondent's Des Plaines address-were returned as undeliverable.2 Cf. Sabir v. Gonzales, 421 F.3d 456 (7th Cir. 2005) (finding that reopening was warranted, even though the alien was personally served with a NT A, where the hearing notice was returned marked "Attempted-Not Known," and the alien made no attempt to thwart delivery). The only evidence the respondent has submitted is his own self-serving summary denial that he knew the hearing location had changed, which is weak evidence. See Joshi v. Ashcroft, 389 F.3d 732, 735 (7th Cir. 2004) ("endorsing the commonsensical proposition that a bare, uncorroborated, self­serving denial of receipt, even if sworn, is weak evidence"). As the Seventh Circuit recognizes, "[n]othing is simpler than submitting an affidavit in which one attests that one didn't receive a particular piece of mail." Id at 736. Unlike the respondent in M-R-A-, the respondent here did not submit affidavits from others who are knowledgeable about whether he received the October 21st notice, whether he in fact appeared at 55 East Monroe on November 6°1, and the circumstances under which he learned that his hearing location had changed. Additionally, unlike the respondent in M-R-A-, the respondent has not identified any eligibility for relief from removal, much less submitted an application or evidence demonstrating his prima facie eligibility for the relief. Moreover, the respondent himself acknowledges that he simply ."did not have transportation or money" in order to arrive at the correct hearing location. On these facts, the respondent has not established that he did not receive notice of the date and location of his November 61h hearing in accordance with INA § 239(a).

Additionally, though the respondent filed his motion to reopen within 180 days after the date of the order of removal, he has not established that his failure to appear for his November 6th

hearing was due to exceptional circumstances. The term "exceptional circumstances" refers to circumstances beyond the alien's control, such as 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. INA § 240(e)( l ). A mistaken belief as to a hearing location and not having the financial resources to secure transportation to the correct hearing location are not compelling circumstances that meet the statutory standard of "exceptional circumstances." As such, the respondent has not established exceptional circumstances excusing his failure to attend the November 6th hearing.

Accordingly, the following order will be entered:

ORDER OF THE IMMIGRATION JUDGE

IT IS HEREBY ORDERED that the respondent's motion to reopen is DENIED.

2 The Court makes a practice of refiling returned and undelivered notices and decisions into the ROP file.

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