Sury, Aruna, Esq.

Aruna Sury, Esq.

140 Big Bear Pl. NW
Issaquah, WA 98027
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - POO
1220 SW Third Avenue, Suite 300
Porland, OR 97204
Name: GODINEZ-MORALES, JULIO DA ... A 205-296-691
Date of this notice: 8/7/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Wendtland, Linda S.
Sincerely,
DG ca
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Julio David Godinez-Morales, A205 296 691 (BIA Aug. 7, 2014)
U.. Deparment of Justice
Executive Ofce fr Imigration Review
Decision of the Board of Imigration Appeals
Falls Chuch, Virginia 20530
File: A205 296 691 - Portlad, OR
I re: JULIO DAVID GODIEZ-MORALES
I REMOVAL PROCEEDIGS
APPEAL
ON BEHALF OF RESPONDENT: Ara Sury, Esquire
ON BEHALF OF DHS:
CHAGE:
Gina C. Emauel
Assistat Chief Cousel
Date:
Notice: Sec. 212(a)(6)(A)(i), l&N
Act [8 U.S.C. 1182(a)(6)(A)(i)] -
Present without being admitted or paoled
APPLICATION: Reopening
Te respondent, a native ad citizen of Mexico, appeals fom the Imigraton Judge's
decision dated April 2, 2014, denying his motion to reopen removal proceedings. He ha aso
submited additona evidence on appeal, which we will constue as a motion to remad, togeter
with a agument fr tolling te number limit applicable to motions to reopen and rescind in
absentia orders. See Avagan v. Holder, 646 F.3d 672, 677 (9t Cir. 2011); Mater of L-V-K-, 22
I&N Dec. 976 (BIA 1999); 8 C.F.R. 1003.23(b)(4)(ii). The Depament of Homelad Secwity
(DHS) ha submitted a non-opposition to te reopenng of these proceedings. The record will be
remaded.
We review te fndings of fct made by the Immigation Judge fr clear eror. 8 C.F.R.
1003.l(d)(3)(i). We review all other issues, including questions of judgment, discretion, and
law, de novo. 8 C.F.R. 1003. l(d)(3)(ii).
Te respondent was ordered removed in absentia on Jauay 13, 2014, ad fled a motion to
reopen on Mach 11, 2014, though frer counsel, Ms. Vicky Cure. That motion agued tat
te respondent did not receive actua notice of his Jauay 13, 2014, hearing, which the court had
served on him toug his pror counsel. The motion contended that altough frer counsel
had attempted to frward te heang notice to the respondent via regular ad certifed mal,
tose mailings were reted as udeliverable fr reasons tat were not the respondent's fult.
Additionally, frer counsel fr the respondent acknowledged that she did not appea fr te
Januay 13, 2014, heaing herself, ad asserted that this was because her assistt had failed to
put te hearing on her calenda. Te Immigration Judge dened te motion, concluding that
serice of a heang notice upon counsel constitutes constctive notice to the respondent, tat
scheduling mistaes do not constitute "exceptonal circustaces" under 8 C.F.R.
1003.23(b)(4)(ii), ad that sua sponte reopening was not warated.
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Cite as: Julio David Godinez-Morales, A205 296 691 (BIA Aug. 7, 2014)
A205 296 691
On appea, the respondent is represented by new counsel, ad argues that his falure to appear
was due to inefective assistace by Ms. Cuie. He alleges that when the mailed notices were
reted to Ms. Curie, she filed to contact him by aterate meas (i.e., via emal and hs
family's cell phones) despite having such contact inoration and having contacted hi via
these methods in the past. He has also submitted a afdavit setting frth his ageement with
Ms. Cure regading his legal representation, a complaint against Ms. Cuie to the Washington
Stte Bar Association (WSBA), and an ackowledgment fom the WSBA statig that it had
received te complaint ad frwaded a copy of the grievace to Ms. Curie. See Matter of
Lozada, 19 I&N Dec. 637 (BIA 1988). In its non-opposition, the DHS states that te respondent
appeas to have complied with the requirements set fr in Lozada, supra. We will remad fr
te Imigration Judge to consider the respondent's inefective assistance of counsel claim, as
well as the newly-submited evidence, in the frst instace. See 8 C.F.R. 1003.l(d)(3)(iv)
(discussing te Boad's limited fact-fnding ability); see also Matter of S-H-, 23 l&N Dec. 462,
465 (BIA 2002).
For te reasons above, the record will be remaded as set frth below.
ORER: Te record is remaded to the Immigration Judge fr fther proceedings
consistent wit the fregoing opinion and fr te ent of a new decision.
2
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Cite as: Julio David Godinez-Morales, A205 296 691 (BIA Aug. 7, 2014)
UNITED STATES DEPARTMENT OF JSTICE
EXECUTIVE OFFICE FOR IMMIGRTION RVIEW
IMMIGRATION COURT
PORTLAND, OREGON
I the Mater of
Julio David
GODINEZ-MORALES,
File Nuber: A 205-296-691
Respondent.
IN RMOVAL PROCEEDINGS
Charge: IA 212(a)(6)(A)(i): Prsent without admission or paole
Application: Motion to reopen
On Behalf of Respondent: On Behalf of ICE:
Vicky Currie
Attorey at Law
732 Paifc Avenue
Tacoma, WA 98402
Gina C. Emanuel
Assistat Chief Counsel
1220 SW Third Avenue, Sute 300
Portlad, OR 97204
RULING OF THE IMMIGRTION JDGE
I. Introduction & Procedural Histor
The Deparment of Homelad Security ("OHS") initiated removal proceedings by fling a
Notice to Appea ("NTA") aganst Respondent, Julio David Godinez-Moraes, wit te Tacoma,
Washngton, Immigration Court on April 30, 2012. Ex. 1. The NTA alleged that Respondent is
a native ad citizen of Mexico ad tat he entered te United States on an unown date at an
uown location witout admission or paole afr inspection by an immigration offcer. Id.
Based on these alegations, DHS chaged Respondent wit removabilit under secton
212(a)(6)(A)(i) of te Immigation and Nationality Act ("IA" or "Act''). At a master calenda
heaing on November 14, 2013, befre the Seatle, Washingon, Immigration Cour Respondent
appeaed wit counsel. He admitted alienge but declined to designte a county of removal,
contested the chage, ad requested a change of venue to Portland. The court grated the chage
of venue, noting tat applications fr relief would be due at the next master calenda heaing in
Porland. Ex. 2. On November 20, 2013, the Portlad cou maled Respondent's counsel notice
of the next hearing to be held on Januay 13, 2014. Ex. 3. Respondent ad counsel bot faled to
appea at tat heaing. None of the heaing notices in the record were ever reted to the cour.
Based upon this evidence, on Jauay 13, 2014, the Imgration Judge sustained the chage and
ordered Respondent removed in absentia. On March 11, 2014, Respondent, throug counsel,
fled a motion to reopen and rescind the order based on exceptional circumstaces. For the
reasons tat fllow, the motion is dened.
A 205-296-691
Page 1 of 3
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. .
II. Discussion
The Immigration Court may upon its own motion at any time, or upon motion of the
Goverent or the alien, reopen ay cae i which it has made a decision, uness jurisdction is
vested with the Boad of Immigration Appeals ("BIA" or "Boad"). 8 C.F.R. 1003.23(b)(l).
When a respondent does not appear fr a hearing, the Goverent may allege that proper notice
was given. Matter of Lopez-Barrios, 20 I&N Dec. 203 (BIA 1990). If the IJ is satisfed that
sufcient notice was provided, then an in absentia heaing may be held. An in absentia order
may be rescinded where an alien fles a motion to reopen within 180 days and establishes tat the
failure to appear was because of"exceptional circumstances," or at ay time where the alien
establishes that she did not receivenotice. 8 C.F.R. 1003.23(b)(4)(ii); see Sembiring v.
Gonzales, 499 F.3d 981, 989 (9t Cir. 2007). Exceptional circumstaces include situatior
beyond the respondent's contol, "such as batery or extreme crelty to te alien or ay chid or
paent of the alien, serious illness of the alien, or serious illness or death of the spouse, chld, or
parent of te alien, but not including less compelling circumstaces." 8 C.F.R. 1003.23(b)(4);
IA 240(e)(l); see Valencia-Fragoso v. Ashcrof, 321 F.3d 1204 (9th Cir. 2003); Catellano v.
Ashcrof, 298 F.3d 888 (9th Cir. 2002).
Due process requires notice of an immigation hearing that is reasonably calculated to
reah the interested paies. See Kan v. Ashcrof, 374 F.3d 825, 828 (9t Cir. 2004); Flores
Chavez v. Ashcroft, 362 F.3d 1150, 1155-56 (9th Cir. 2004); Farhoud v. INS, 122 F.3d 794, 796
(9th Cir. 1997). A petitioner does not have to actually receive notice fr due process to be
satisfed, but actua notice is, however, sufcient. Farhoud, 122 F.3d at 796. Notice to counsel
is suffcient to establish notice to te applicant. See Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir.
2000) (per cwiam); Matter of Rivera-Claros, 21 I&N Dec. 599, 602 (BIA 1996); Matter of
Barocio, 19 I&N Dec. 255, 259 (BIA 1985); INA 240(b)(5); 8 U.S.C. 1229(a)(2).
Actual notice was sent to Respondent's counsel, who ackowledges that she received
notice and bases te motion upon exceptional circumstances. Counsel explains in the motion
that Respondent might have had problems with receiving his mail. Respondent stated in a
afdavit that his mail might have been misplaced. Counsel sent two leters, one by cerifed mal
ad one by regula mail, to Respondent in December 2013. They were retured to counsel by
the Postal Service with a frwading address and a note that the frward time had expired.
Counsel also wrote that Respondent works and is not around when the mail a ives and that
someone else might have given "a diferent address and his mail w frwaded and no one
picked it up." Counsel stated that Respondent had good communication with her ofce. The
letters were retued to te offce about a month befre te scheduled heaing. Apat fom
whether Respondent received his mail, counsel noted that her assistant "did not calenda te
date" and that counsel "did not lea of te heaing in time." The Nint Circuit has consistently
held that scheduling mistakes are not exceptional circumstances. Valencia-Fragoso, 321 F.3d at
1206; see Chete-Juarez v. Ashcrof, 376 F.3d 944 (9th Cir. 2004); Singh v. INS, 295 F.3d 1037
(9t Cir. 2002).
Respondent, through Counsel, had notice of te hearing. The cour had juisdiction to
conduct the heaing in absentia ad properly fund by clear, unequvocal, and convincing
evidence that Respondent had such sufcient notice. Therefre, there is no basis upon which to
A 205-296-691
Page 2 of3
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grat the motion fr lack of notice, and ultimately Respondent has failed to demonstrte
exceptional circumstances such that the matter should be reopened. See Chete-Juarez, 376 F.3d
944; Singh, 295 F.3d 1037. Additionally, if Respondent wishes to fle a motion to reopen baed
upon inefective assistance of counsel, he must frst comply with the Lozada requirements.
Matter of Lozada, 19 I&N Dec. 637, 638 (BIA 1988).
Lastly, the circumstances in this cae are not appropriate fr reopenng under the court's
sua sponte authority. Such authority is used "sparingly, treating it not as a genera remedy fr
hardships created by enfrcement of the time and number limits in the motions regulations, but
as an extraordinary remedy reserved fr truly exceptional situations." Matter ofG-D-, 22 I&N
Dec. 1132, 1133-34 (BIA 1999). To fnd otherwise would ignore the statutory and regulatory
deadlines, whch are designed to bring fnality to imgration proceedings. See, e.g., INS v.
Dohert, 502 U.S. 314 (1992). For these reasons, the motion to reopen is denied.
ORDER
IT IS HEREBY ORDERD that Respondent's motion to reopen is DENIED.
Any appeal of ths decision is due to the BIA in not less tha 30 calendar days ( 5 I{ I '

Date
A 205-296-691
Page 3 of3
Immigration Judge
)
.
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