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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204 I

DHS/ICE Office of Chief Counsel - LOS


606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name: SANCHEZ-ZARAGOZA, MOISES

A 077-273-744
Date of this notice: 7 /14/2016

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

DOWtL C

l1/v\.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Mann i Ana
O'Leary ! Brian M.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Moises Sanchez-Zaragoza, A077 273 744 (BIA July 14, 2016)

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Puente, Alma D
Law Office of Alma D. Puente
9660 Flair Drive
Suite 228
El Monte, CA 91731

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

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A077 273 744 - Los Angeles, CA

Date:

In re: MOISES SANCHEZ-ZARAGOZA

JUL 1 't 2016

APPEAL
ON BEHALF OF RESPONDENT: Alma D. Puente, Esquire
APPLICATION: Reopening
The responden a native and citizen of Mexico, was ordered removed in absentia on
January 4, 2010. On March 4, 2015, the respondent filed a motion to reopen proceedings, which
the Immigration Judge denied on May 26, 2015. The respondent appeals that decision and the
Department of Homeland Security (DHS) has not replied to the appeal. The appeal will be
sustained, proceedings will be reopened and the case will be remanded.
We have found that section 239(a)(1) of the Immigration and Nationality Act, 8 U.S.C.
1229(a)(l), authorizes the entry of an in absentia order only after the respondent receives the
warnings and advisals contained in the Notice to Appear. See Matter of G-Y-R-, 23 l&N Dec.
181 (BIA 2001).
The respondent provided evidence with his motion to reopen that the Application to Register
Permanent Residence or Adjust Status (Form 1-485) that he filed in 1999 was denied on July 5,
2005. He further averred in his motion to reopen sworn statement that he moved to Texas in
September 2005, and he also claims that he lost contact with his former counsel. 1 The
respondent also alleged that he received no notices regarding his removal proceedings.
While we share the concerns raised by the Immigration Judge in her decision regarding the
lack of proof provided by the respondent regarding where he resided in 2008, the respondent
alleges that he did not receive either the Notice to Appear or the notice of hearing. 2 See Celis
Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002) ("[T]he Board must accept the facts in
an alien's affidavit as true unless inherently unbelievable."); Salta v. INS, 314 F.3d 1076, 1079
(9th Cir. 2002) (an applicant's sworn affidavit that neither she nor a responsible party residing at
1

The Form I-485 was reconsidered by the U.S. Citizenship and Immigration Services Field
Office Director, but again denied in a decision dated August 2, 2007, (Exh. 3), which the
respondent alleges he did not receive.
2

The record contains an envelope with a December 12, 2009, stamp marked "return to sender,
not deliverable as addressed, unable to forward" and hand-written notation "does not live at this
address," and while it is not attached to a notice of hearing, it appears to belong to the notice of
hearing mailed on December 2, 2009.
Cite as: Moises Sanchez-Zaragoza, A077 273 744 (BIA July 14, 2016)

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

IN REMOVAL PROCEEDINGS

J,

A011 273 744


her address received the notice should ordinarily be sufficient to rebut the presumption of
delivery when the notice of hearing is sent by regular mail).

Considering the totality of circumstances presented in this case, we conclude that reopening
is warranted under Matter of G-Y-R-, supra, as the address from the 1999 application was stale
when the Notice to Appear was issued on May 1, 2008, and the respondent asserts he never
received the Notice to Appear or any other notices.
ORDER: The proceedings are reopened and the record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion. and the entry of a new
decision.

2
Cite as: Moises Sanchez-Zaragoza, A077 273 744 (BIA July 14, 2016)

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If the respondent did not receive the Notice to Appear, then he-cannot be on notice of the
removal proceedings or the address obligations; as such "the entry of an in absentia order is
precluded." Matter of G-Y-R-, supra. "Simply mailing the Notice to Appear to an address
authorized under section 239(a)(l) does not automatically convert the alien's last known address
into a section 239(a)(l)(F) address." Id. Rather, the alien must have actually received or be
properly charged with receiving the Notice to Appear, before in absentia proceedings may be
authorized. Id.

UNITED STATES GOVERNMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
A 077 273 744

)
)

)
)

In the Matter of:

SANCHEZ-ZARAGOZA, )
Moises,
)

IN REMOVAL PROCEEDINGS

Respondent

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA)


(2009) - alien present in the United States without being admitted or
paroled.

CHARGES:

Section 212(a)(7)(A)(i)(I) of the INA - alien who, at the time of


application for admission, was not in possession of a valid immigrant visa,
reentry permit, border crossing card, or other valid entry document.
APPLICATIONS:

Respondent's Motion to Reopen and Motion for Stay of Removal

ON BEHALF OF RESPONDENT:
Alma D. Puente, Esquire
Law Office of Alma D. Puente
9660 Flair Drive, Suite 228
El Monte, California 91731

ON BEHALF OF THE DEPARTMENT:


Assistant Chief Counsel
U.S. Department of Homeland Security
606 South Olive Street, Eighth Floor
Los Angeles, California 90014

DECISION AND ORDERS OF THE IMMIGRATION JUDGE


I.

Procedural History

Moises Sanchez-Zaragoza (Respondent) is a native and citizen of Mexico. See Ex. I. On


May 1, 2008, the U.S. Department of Homeland Security (the Department) served Respondent
with a Form I-862, Notice to Appear (NTA), by regular mail. Id. The Department mailed the
NTA to Respondent's last known address, 1 as reflected in his 2007 adjustment of status
application. See Exs. 1, 3. Jurisdiction vested and removal proceedings commenced when the
Department filed the NTA with the Court on November 13, 2009. 8 C.F.R. 1003.14(a) (2009).
On December 2, 2009, the Court served Respondent a notice of hearing (NOH) in
removal proceedings, scheduled for January 4, 20 I0. This NOH was also served by regular mail
1

Court records show Respondent's last known address is 10412 Amboy Avenue, Pacoima, California 91331.

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File No.:

t.o Respondenfs last known address. On January 4, 2010, Respondent failed to appear for his
scheduled hearing, and, proceeding in absentia, the Court ordered him removed to Mexico.

For the following reasons, the Court will deny both motions.
II.
A.

Law and Analysis

Motion to Reopen

1.

Notice

The Court may rescind an in absentia removal order upon a motion to reopen filed at any
time if the alien demonstrates that he did not receive notice of the hearing in accordance with
INA 239(a). INA 240(b)(5)(C)(ii); 8 C.F.R. 1003.23(b)(4)(ii).
An NTA may be properly served by regular mail to the alien's last known address.
8 C.F.R. 1003.13; Matter of M-R-A-, 24 I&N Dec. 665, 669 (BIA 2008). When an NTA is
sent by regular mail to an alien's last known address, there is a presumption that service was
proper. See id. at 673; Matter of C-R-C-, 24 I&N Dec. 677, 679 (BIA 2008). The presumption
of proper service may be overcome if the alien submits sufficient evidence of relevant factors,
including, but not limited to, the following:
(I)
(2)
(3)
(4)
(5)
(6)
(7)

the alien's affidavit;


affidavits from family members or other individuals who are
knowledgeable about the facts relevant to whether notice was received;
the alien's actions upon learning of the in absentia order, and whether due
diligence was exercised in seeking to redress the situation;
any prior affirmative application for relief, indicating that the alien had an
incentive to appear;
any prior application for relief filed with the Immigration Court or any
prima facie e_vidence in the record or the alien's motion of statutory
eligibility for relief, indicating that the alien had an incentive to appear;
the alien's previous attendance at Immigration Court hearings, if
applicable; and
any other circumstances or evidence indicating possible nonreceipt of
notice.

M-R-A-, 24 I&N. Dec. at 674; see also Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002).
Here, after considering all the evidence submitted, the Court finds that Respondent failed
to overcome the presumption of proper service. Respondent submitted only one affidavit in
2

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On March 5, 2015, Respondent filed a motion to reopen and a motion for stay of removal
with the Court. Respondent contends that he never received notice of his removal proceedings
and requests the Court to exercise its sua sponte authority to reopen his case. Resp't's Mot. at
1-2.

which he claims that he did not receive the NTA. Resp't's Mot., Tab F. Respondent alleges
that he moved from his California address to Houston, Texas, on September 8, 2005, and, thus,
no longer lived at the California residence of record when the NTA and NOH were mailed to
him. Id. Beyond Respondent's affidavit, he submitted no other evidence to overcome the
presumption of proper service.

Additionally, Respondent demonstrated a lack of due diligence. The USCIS letter of


denial of Respondent's adjustment of status application notified him that failure to depart the
United States would result in the institution of removal proceedings against him. Ex. 3. As
Respondent failed to depart the United States,he knew removal proceedings were imminent. He
chose instead to move to a different state and did not notify the Department or his counsel of
record of his new address. This complete lack of due diligence, compounded with the fact that
he knew or should have known that he would be imminently placed in removal proceedings,
weighs significantly against finding that service of his NTA was not proper.
Given the foregoing, the Court finds that notice of Respondent's NTA was properly
served by regular mail, raising the presumption of proper service. Respondent failed to submit
sufficient evidence to overcome this presumption. As such, the Court will not reopen
Respondent's case for lack of notice.
2.

Sua Sponte Reopening

An immigration judge may, upon her own motion at any time, or upon motion of the
Department or the alien, reopen any case in which she has made a decision. 8 C.F.R.
1003.23(b)(l). The decision to grant or deny a motion to reopen is within the discretion of the
immigration judge. 8 C.F.R. 1003.23(b)(l)(iv). "[T]he power to reopen on our own motion is
not meant to be used as a general cure for filing defects or to otherwise circumvent the
regulations, where enforcing them might result in hardship." Matter of J-J-. 21 I&N Dec. 976,
984 (BIA 1997). Proceedings should be reopened sua sponte only in "exceptional" situations.
Id. Moreover, where finality is a key objective, the threshold for sua sponte reopening is
extremely high. See Matter of 0-. 19 I&N Dec. 871,871 (BIA 1989).
2 In particular, Respondent entered the United States illegally, without being inspected or paroled by an immigration
officer. Ex. 3. Additionally, Respondent was found ineligible to receive an immigrant visa for his involvement in
the illegal smuggling of an alien in 1991. Id. (citing INA 212 (a)(6)(E)(i)).

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In addition, the relevant factors weigh against Respondent. To begin, Respondent had
diminished incentives to appear at his immigration proceedings. By the time the Department
issued Respondent's NTA in May 2008,the U.S. Citizenship and Immigration Services (USCIS)
had denied Respondent's adjustment of status application twice,once in 2005 and again in 2007.
Ex. 3. USCIS denied Respondent's adjustment of status application because he had violated
immigrations laws.2 Id. Given his record of immigration law violations and multiple prior
denials, Respondent had a low likelihood of obtaining relief from removal, resulting in
diminished incentives to appear at his future immigration proceedings. See Matter of Andrade,
19 l&N Dec. 488, 490 (BIA 1988) ("A respondent with a greater likelihood of being granted
relief from deportation has a greater motivation to appear for a deportation hearing than one who,
based on a criminal record or otherwise,has less potential of being granted such relief.").

!.

Here, upon consideration of all the facts and circumstances of this case, the Court finds
that sua sponte reopening is unwarranted. First, Respondent has not presented any evidence of
exceptional situations that warrant the Court's exercise of discretion. Second, Respondent has
not established that he is prima facie eligible for the relief he seeks. Respondent seeks to adjust
status based on an approved Form I-130, Petition for Alien Relative.3 See Resp't's Mot., Tab F.
However, Respondent's presence in the United States without admission or parole and his prior
violations of the immigration laws likely render him ineligible for adjustment of status. See INA
245(a); Ex. 3.
Third, even assuming, arguendo, that Respondent were prima facie eligible for
adjustment of status, prima facie eligibility for relief does not ensure a favorable exercise of the
Court's discretion. See Sequeira-Solano v. INS, 104 F.3d 278, 279 (9th Cir. 1997) (citing INS v.
Abudu, 485 U.S. 94 ( 1988)). The Court still possesses the responsibility to weigh the equities of
the case, which in this instance do not merit granting Respondent's motion. See 8 C.F.R.
1003.23(b)(3). As outlined above, see Part II.A. I, supra, Respondent was found to be
inadmissible to the United States for having violated immigration laws through his involvement
in the illegal smuggling of an alien in 1991. Ex. 3. Respondent also failed to exercise due
diligence in his immigration proceedings, as he (a) failed to notify the Department and his
counsel of record after moving to a different state, (b) failed to depart the United States when his
adjustment of status application was denied for the second time in 2007, and (c) waited at least
another five years before acting on his immigration status.4 See id., Tab F.
The Court also considered the positive factors in Respondent's case. The Court
recognizes that Respondent is married to a United States citizen and has two United States
citizen children. See id., Tab J. In addition, the Court acknowledges that Respondent has
resided in the United States for thirty-two years. See id., Tab F. However, the Court finds these
factors insufficient to outweigh the negative factors in Respondent's case. Based on the
foregoing, and in the interest of finality, the Court will not reopen Respondent's case sua sponte.

Respondent submitted a copy of a Form I-797, Notice of Action, in which the Department notified him that his
Form I-130 petition was approved on September 18, 2014. Resp't's Mot., Tab A.
4
In his motion, Respondent alleges that he, through counsel, filed two additional adjustment of status applications in
2012. Resp't's Mot., Tab F. However, the record does not contain any evidence of an adjustment of status
application filed on Respondent's behalf in 2012.
4

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A motion to reopen must state the new facts that will be proven at a hearing to be held if
the motion is granted. INA 240(c)(6)(B); 8 C.F.R. 1003.23(b)(3). Additionally, where the
alien seeks to reopen proceedings to act on an application for relief, he must establish prima
facie eligibility for the relief sought by showing that there is a reasonable likelihood of success
on the merits so as to make it worthwhile to develop the issues further at an individual hearing .
See INS v. Rios-Pineda, 47 1 U.S. 444, 449 (1985); Delgado-Ortiz v. Holder, 600 F.3d 1 148,
1 15 1 (9th Cir. 2010); Matter of L-0-G-. 21 I&N Dec. 413, 419 (BIA 1996).

B.

Motion for Stay of Removal

Because this Court will deny Respondent's motion to reopen, it finds no basis on which
to grant his motion for a stay of removal. See Nken v. Holder, 556 U.S. 4 1 8, 433 (2009) (noting
that a stay under the regulatory criteria is not "a matter of right").

ORDERS
IT IS HEREBY ORDERED that Respondent's motion to reopen be DENIED.
IT IS FURTHER ORDERED that Respondent's motion for stay o removal be
DENIED.

a o
Immigration Judge

Appeal Rights: Both parties have the right to appeal the decision in this case. Any appeal is due
at the Board of Immigration Appeals within thirty (30) calendar days of the mailing of this
decision. 8 C.F.R. 1 003.38.

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Given the foregoing, the Court will enter the following orders:

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