U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office of the Clerk
5/07 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - BUF

130 Delaware Avenue, Room 203
Buffalo, NY 14202

Name: PARRA-ARREDONDO, NICOLAS

A 205-704-279
Date of this notice: 11/18/2016

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

DOWtL {!

t1/lA.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Grant, Edward R.
Mann, Ana
O'Connor, Blair

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Nicolas Parra-Arredondo, A205 704 279 (BIA Nov. 18, 2016)

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Cisneros Vilchis, Brenda A., Esq.

Law Offices of Jose Perez, P.C.
651 Delaware Avenue, Suite 118
Buffalo, NY 14202

, u.s: Depaitment of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

Date:

File: A205 704 279 - Buffalo, NY

In re: NICOLAS PARRA-ARREDONDO

NOV 1 8 2016

APPEAL
ON BEHALF OF RESPONDENT: Brenda A. Cisneros Vilchis, Esquire
APPLICATION: Reopening
The respondent appeals from an Immigration Judge's decision dated December 8, 2015,
denying the respondent's November 10, 2015, motion to reopen his October 7, 2015, removal
proceedings, which had been conducted in absentia under section 240(b)(5)(A) of the
Immigration and Nationality Act, 8 U.S.C. I229a(b)(5)(A). The Department of Homeland
The appeal will be sustained.
Security (DHS) has not filed a brief in response to the appeal.
Upon de novo review of the evidence of record, and in light of the totality of circumstances
presented in this case, including that the respondent continues to reside at the same address to
which the hearing notice was sent, his claim of non-receipt of the hearing notice and his
appearance for a hearing on the wrong date as advised by immigration court security guards, as
well as the respondent's diligence in filing a motion to reopen, and DHS' filing of a non
opposition to the motion to reopen, we find that the respondent has presented sufficient evidence
to overcome the presumption of delivery of the notice of hearing. See Matter ofM-R-A-, 24 I&N
Dec. 665, 674-76 (BIA 2008) (setting forth the standards for determining if a respondent has
presented sufficient evidence to overcome the weaker presumption of delivery that attaches to
notices sent by regular mail).
Accordingly, the following order will be entered.
ORDER: The appeal is sustained, the in absentia order is vacated, proceedings are reopened,
and the record is remanded to the Immigration Judge for further proceedings.

FOR THE BOARD

Cite as: Nicolas Parra-Arredondo, A205 704 279 (BIA Nov. 18, 2016)

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BUFFALO, NEW YORK

IN REMOVAL
PROCEEDINGS

PARRA-ARREDONDO, Nicolas
A# 205-704-279
Respondent

Present Without Permission or Parole

CHARGES:

INA 212(a)(6)(A)(i)

MOTIONS:

Motion to Reopen In Absentia Orde,r

ON BEHALF OF THE DHS
Fauzia Mattingly
Assistant Chief Counsel
130 Delaware Avenue, Suite 203
Buffalo, New York 14202

ON BEHALF OF RESPONDENT
Brenda Cisneros Vilchis, Esq.
The Law Offices ofJose Perez, P .C.
651 Delaware Avenue, Suite 118
Buffalo, New York 14292

DECISION AND ORDER OF THE IMMIGRATION JUDGE

Respondent's motion to reopen and rescind his in absentia order of removal is
DENIED.
I.

FACTS AND PROCEDURAL HISTORY

Nicolas Parra-Arredondo ("Respondent") is a native and citizen of Mexico. Exh.

I. He is not a citizen. or national of the United States. Id. He arrived in the U.S. at an
unknown place, date and time. Id. He was not then admitted or paroled by an
immigration officer. Id. On December 16, 2013, based on these factual allegations set
forth in the Notice to Appear ("NT A") issued by the Department of Homeland Security
("DRS"), Respondent was charged that he is removable from the United States pursuant
to INA 212(a)(6)(A)(i) (present in violation oflaw). Id.

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A# 205-704-279

Cite as: Nicolas Parra-Arredondo, A205 704 279 (BIA Nov. 18, 2016)

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In the Matter of:

Another Notice of Hearing was mailed to Respondent (dated September 16, 2014)
requiring him to appear before the Court on October 7, 2015. See (Exh. 4). This Notice of
Hearing was also sent to the last known address of Respondent. Id.
On October 7, 2015, Respondent failed to appear before the Court for his
scheduled hearing. See (Exh. 5). Accordingly, Respondent was ordered removed in
absentia to Mexico. Id.
On November 10, 2015, Respondent filed a motion to reopen and rescind the in
absentia removal order, citing that Respondent did not receive notice of his hearing date.
See (Exh. 6). DHS is not opposed to this motion. See (Exh. 7).

II.

DOCUMENTARY EVIDENCE
The following documents are included in the record of proceedings:

Exhibit 1:

Respondent's Notice to Appear (Dec. 16, 2013)

Exhibit 2:

Respondent's Form I-213 Record of Deportable/Inadmissible Alien (Nov.

4, 2013)

Exhibit 3:

Notice of Hearing (Feb. 26, 2014)

Exhibit 4:

Notice of Hearing (Sept. 16, 2014)

Exhibit S:

Order of the IJ (removing Respondent in absentia) (Oct. 7, 2015)

Exhibit 6:

Respondent's Motion to Reopen and Rescind in Absentia Removal Order

and supporting documentation (Nov. 10, 2015)
6A: Respondent's Marriage Certificate, New York State Dep't of
Health (dated Jun. 16, 2011); Lissette Rivera Valentin's Puerto Rico Birth
Certificate
6B: Respondent's Affidavit (sworn on Oct. 22, 2015)
6C: Copy of Order of the IJ (Oct. 7, 2015)

Exhibit 7:

DHS Memorandum in Respondent to the Motion (Nov. 23, 2015)

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The U.S. Immigration Court in Buffalo, New York ("the Court") mailed a Notice
of Hearing to Respondent requiring him to appear on October 17, 2014, dated February
26, 2014, to Respondent at his last known address: 99 Franklin Avenue, Upper
Apartment, Dunkirk, New York 14048. See (Exh. 3). Respondent states that he has not
moved from this address since the commencement of his removal proceedings. See (Exh.
6B at15).

,,
III.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Respondent's Motion to Reopen in Absentia Order of Removal

Respondent, through this motion, states that he did not receive notice of his
scheduled hearing. See (Exh. 6 at S). Specifically, Respondent explains that he appeared
for his hearing scheduled for October 17, 2014, but the security guards in the building
allegedly informed him his hearing date was rescheduled for October 9, 2015. Id.
Respondent then appeared on October 9, 2015 for this rescheduled hearing, only to be
told that he was ordered removed in absentia because his rescheduled hearing was
actually for October 7, 2015. Id. Respondent states that he never received a new Notice of
Hearing for this rescheduled hearing. Id.
The issue in a claim of nonreceipt under INA 240(b)(5)(C)(ii) is not whether the
notice was properly mailed but whether the alien received the notice. Alrefae v. Chertojf,
471 F.3d 353, 359 (2d Cir. 2006); see also Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir.
2006). However, there is a presumption that properly mailed notices are received by the
addressee. Alrefae, 471 F.3d at 358-59. The BIA has held that where an NTA or notice
of hearing is properly addressed and sent by regular mail according to normal office
procedures, there is a presumption of delivery, but it is weaker than the presumption that
applies to documents sent by certified mail. Matter of M-R-A-, 24 l&N Dec. 665, 673
(BIA 2008).
In this case, however, Respondent does not contest that 99 Franklin Avenue,
Upper Apartment, Dunkirk, New York 14048 is not his current and correct address. See
(Exh. 4B at ,I 5) (stating in his sworn affidavit "I have not changed my address. Since
before my removal proceedings commenced, I ha,ve been living in the same place.). In
fact, Respondent successfully received the first Notice of Hearing, dated February 26,
2014, as he states he appeared for the subsequently scheduled hearing (a hearing that was
then rescheduled). See (Exh. 3). The second Notice of Hearing was also sent to this same
address, and was not returned to the Court as undeliverable. See (Exh. 4). The Court
finds there is a strong presumption of delivery to Respondent.
The only evidence Respondent provided in support of his motion is his affidavit;
however, if the Court accepted only a respondent's self-serving statement as the basis to
reopen proceedings, many respondents would simply offer the same, without any other

A# 205-704-279

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An order of removal entered in absentia may be rescinded only upon a motion to

reopen filed: "(1) Within 180 days after the date of the order of deportation if the alien
demonstrates that the failure to appear was because of exceptional circumstances beyond
the control of the alien (e.g., serious illness of the alien or serious illness or death of an
immediate relative of the alien, but not including less compelling circumstances); or (2)
At any time if the alien demonstrates that he or she did not receive notice or if the alien
was in federal or state custody and the failure to appear was through no fault of the
alien." 8 C.F.R. I003.23(b)(4)(iii)(A).

_.,

supporting documentation to evidence true nonreceipt. There would be no way for the
Court to verify such a claim.

The record is limited since Respondent had only one scheduled hearing, so the
Court cannot make a determination whether Respondent would have likely shown had he
received proper notice. The Court cannot verify that there is a "strong possibility" of
improper service when it only has the self-serving affidavit of the Respondent as
evidence.
The Court declines to reopen Respondent's case sua sponte. See 8 C.F.R.
1003.23(b). To the extent that the Court retains the authority to reopen a matter sua
sponte, that extraordinary remedy is reserved for "truly exceptional situations." Matter of
G-D-, 22 I&N Dec. 1132, 1134 (BIA 1999); see also Matter of J-J-, 21 l&N Dec. 976,
984 (BIA 1997). Even though Respondent states his wife intends to file an I-130 Petition
for Alien Relative, and Respondent intends to file for an I-601A Provisional Waiver of
Inadmissibility, this form of relief at this point is merely speculative. The Court is not
convinced that reopening Respondent's removal proceedings would be appropriate under
the circumstances presented. Accordingly, the Court shall enter the following order:

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The BIA has noted that an Immigration Judge may consider affidavits from the
respondent and others who are knowledgeable about whether notice was received,
whether due diligence was exercised in seeking to redress the situation, any prior
applications for relief that would indicate an incentive to appear, the respondent's prior
appearance at immigration proceedings, if applicable, and any other circumstances
indicating nonreceipt of the notice. M-R-A-, 24 I&N Dec. at 674. Additionally, the
respondent can overcome the presumption of delivery by submitting an affidavit that the
respondent did not receive the notice and that he had continued to reside at the address at
which it was sent, as well as other circumstantial evidence indicating that he had an
incentive to appear, and by exercising due diligence in promptly seeking to redress the
situation by obtaining counsel and requesting reopening of the proceedings. Matter of C
R-C-, 24 l&N Dec. 677, 680 (BIA 2008) (emphasis added).

ORDER
IT IS HEREBY ORDERED that Respondent's motion to reopen and rescind the
order of removal in absentia is DENIED.

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A# 205-704-279