.. .1

Anderson, Jeremy M. Anderson Polozco, PLLC 14433 Dedeaux Road, Suite 2 Gulfport, MS 39503

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Qffice of the Clerk

5/07 Leesburg Pike. Suite 2000 Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - HLG 1717 Zoy Street Harlingen, TX 78552

Name: MATUTE-DELARCA, JOSE ORL. .. A 205-723-875

Date of this notice: 3/18/2016

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

Enclosure

Panel Members: O'Leary, Brian M. Grant, Edward R. Guendelsberger, John

Sincerely,

DO)uu,._ C ,1/Vu

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

Imm

igrant & Refugee A

ppellate Center, LLC

| ww

w.irac.net

Cite as: Jose Orlando Matute-Delarca, A205 723 875 (BIA March 18, 2016)

/ /- U.S. Department of Justice

Executive Office for Immigration Review Decision of the Board of Immigration Appeals

Falls Chmch, Virginia 22041

File: A205 723 875 - Harlingen, TX

In re: JOSE ORLANDO MATUTE-DELARCA

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Jeremy Anderson, Esquire

ON BEHALF OF DHS: Gabriel A. Couriel Assistant Chief Counsel

APPLICATION: Reopening

MAR 1 8 2016

The respondent, a native and citizen of Honduras, was ordered removed in absentia on November 19, 2013. On January 12, 2015, the respondent filed a motion to reopen proceedings, which an Immigration Judge denied on January 29, 2015. The respondent filed a timely appeal of that decision. The appeal will be sustained, the in absentia order will be vacated, proceedings will be reopened, and the record will be remanded.

The Board reviews an Immigration Judge's findings of fact, including fmdings as to the credibility of testimony, under the clearly erroneous standard. 8 C.F.R. § 1003.l(d)(3)(i). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions oflmmigration Judges de novo. 8 C.F.R. § 1003.l(d)(3Xii).

Upon de novo review of the record and in light of the totality of circumstances presented in this case, we conclude that the respondent demonstrated that reopening is warranted. 1 See sections 240(b)(5)(C)(i), (e)(l) of the Immigration and Nationality Act, 8 U.S.C.A §§ 1229a(b)(5)(C)(i), (eXI). We will therefore sustain the respondent's appeal and remand the record for further proceedings.

ORDER: The respondent's appeal is sustained, the in absentia order is vacated, proceedings are reopened and the record is remanded to the Immigration Judge for further proceedings and for the entry of a new decision.

1 Among other factors, we have considered that the respondent's counsel attempted to change venue prior to the hearing and that it is unclear whether the respondent was provided with notice of the entry of the in absentia order as the order was mailed to the respondent

, s former counsel

who indicated in his motion to withdraw representation that he had made numerous attempts to contact the respondent without success.

Imm

igrant & Refugee A

ppellate Center, LLC

| ww

w.irac.net

Cite as: Jose Orlando Matute-Delarca, A205 723 875 (BIA March 18, 2016)

,·. �·

...... . ;J' 1 tt...

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT 2009 W. JEFFERSON AVE, STE 300

HARLINGEN, TX 78550

Anderson Orozco pllc ANDERSON, �EREMY PO Box 666 Gulfport, MS 39502

IN THE MATTER OF MATOTE-DELARCA, JOSE ORLANDO

FILE A 205-723-875

UNABLE TO FORWARD - NO ADDRESS PROVIDED

DATE: Jan 30, 2015

VATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK 5107 Leesburg Pike, Suite 2000 FALLS CHURCH, VA 20530

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c} (6), 8 u.s.c. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

OTHER:

IMMIGRATION COURT 2009 W. JEFFERSON AVE, STE 300 HARLINGEN, TX 78550

-f /1 COUR"I" CLERK IMMIGRATION COURT

CC: ASSISTANT CHIEF COUNSEL 1717 ZOY ST. HARLINGEN, TX, 785520000

FF

Imm

igrant & Refugee A

ppellate Center, LLC

| ww

w.irac.net

(

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW HARLINGEN IMMIGRATION C<\:RT HARLINGEN, TEXAS � IN THE MATTER OF ) Janu�2015

)

) JOSE ORLANDO MATUTE­DELARCA RESPONDENT

)

)

)

APPLICATIONS: Motion to Reopen ON BEHALF OF THE RESPONDENT Jeremy Anderson, Esq. Anderson Orozco, PLLC P.O. Box 666 Gulfport, MS 39502

File Number: A 205 723 875

In Removal Proceedings

ONBEHALF OF THE GOVERNMENT Assistant Chief Counsel U.S. Department of Homeland Security 1 7 I 7 Zoy Street Harlingen, TX 78552 DECISION OF THE IMMIGRATION JUDGE

On November 19, 20 I 3, the Court ordered the respondent removed to Honduras in absentia pursuant to section 240(b )(S)(A) of the Immigration and Nationality Act (INA or Act). On January 12, 2015, the respondent, through counsel, filed a motion to reopen requesting that his removal proceedings be reopened based on exceptional circumstances and pursuant to the Court's sua sponte authority. The respondent's motion to reopen will be denied. The motion contends that counsel attempted to change venue from the Harlingen Immigration Court to the New Orleans Immigration Court prior to the respondent's scheduled hearing. The motion to reopen states that the motion to change venue and counsel's Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28) were rejected for improper service of the Department of Homeland Security (OHS) and that the Form EOIR-28 also failed to include counsel's original signature. Counsel states that he served the OHS with a copy of these documents to the address listed on the DHS website. He also asserts that he called the Harlingen Immigration Court inquiring whether he and the respondent were required to appear for the November 19, 2013, hearing since he had submitted a request to change venue. He claims that the Clerk of the Court informed him that neither the respondent nor counsel would need to appear for the hearing so long as the motion to change venue was in the Court's file. The record reflects that the respondent was personally served with a Notice to Appe_� (NT A) on November 22, 2012. See Exh. #1; INA§ 239(a)(l). The respondent was released from detention with the help of former counsel, Eric Bernal, on or about December 19, 2012. Notice to EOIR= Alien Address (Form 1-830). The Court then mailed Mr. Bernal a hearing notice on December 27, 2012, informing the respondent of a removal hearing scheduled for November 19, 2013, in Harlingen,

t .4.

Imm

igrant & Refugee A

ppellate Center, LLC

| ww

w.irac.net

Texas. Mr. Bernal filed a Motion to Withdraw as Attorney of Record on October 31, 2013, indicating that he made multiple unsuccessful attempts to contact the respondent.

The record of proceeding also includes a Motion to Change Venue, Form EOIR-28 for the respondent's current counsel, and Alien's Change of Address Form (EOIR-33) filed originally on November 12, 2013. These documents were rejected by the Court for improper service on the DHS and because the Form EOIR-28 for counsel did not contain an original signature. Once corrected, these documents were refiled and accepted by the Court on November 20, 2013, the day after the respondent was ordered removed in absentia.

The respondent argues that exceptional circumstances under section 240( e )(1) existed and prevented the respondent from attending his November 19, 2013 hearing. However, the Court finds that the respondent's motion is untimely under section 240(b)(S)(C)(i) as the motion was not filed within 180 days of the entry of the final order ofremoval. Even if the motion were timely, the Court would not find these arguments justify reopening under section 240(b )(5)(C)(i) of the Act. The mere filing of a request to change venue does not relieve the respondent of his obligation to appear for a scheduled hearing. See Matter of Rivera, 19 l&N Dec. 688 (BIA 1988); Matter of Patel, 19 I&N Dec. 260 (BIA 1985), ajf'd, Patel v. INS, 803 F.2d 804 (5th Cir. 1986). In the same vein, the respondent should not assume that his request to change venue will be granted. See Matter of Rivera, supra. Until the Immigration Judge grants the motion to change venue, the respondent is responsible for attending the hearing. Reliance on the alleged advice of another, even a member of the Court's staff, does not supersede such well-established law.

Finally, the Court concludes the circumstances of this case do not warrant the exercise of the Court's limited discretion to reopen sua sponte. See Matter of J-J, 21 I&N Dec. 976 (BIA 1997). While counsel's unsuccessful attempt to change venue for the respondent was no doubt done in good faith, the respondent and his counsel's lack of due diligence in following up on the motion to change venue dissuade the Court from exercising its power to reopen sua sponte. 8 C.F .R. § 1003 .23(b )(1 ).

Accordingly, the following orders shall be entered:

ORDER: The respondent's motion to reopen is DENIED.

2

•

David Ayala United States Immigrat1 dge

.a

Imm

igrant & Refugee A

ppellate Center, LLC

| ww

w.irac.net

�

CERTIFICATE OF SERVICE THIS DOCUMENT WAS SERVED BY: MAIL (�ERSONAL SERVIClYr� TO: ( ) ALIEN ( )ALIEN C/0 CUSTODIAN ( )ALIEN'S AFY�p fi:l>'Df.l:S DATE: /'3o .. de!',S BY:COURT STAFF_�r __ fl=........a...._"_r ___ _

ATTACHMENTS: () EOIR-33 () EOIR-28 () LEG:tlsERVICES LIST fl OTHER

3

== 4444. !ID.. .. , $ E .. ES. CQ 44% . ..w.;

Imm

igrant & Refugee A

ppellate Center, LLC

| ww

w.irac.net