Bingham Ill, Ellis Dean Bingham at Law LLC 218 16th Street North Bessemer, AL 35020

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Qffice of the Clerk

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - MEM 80 Monroe Ave., Ste 502 Memphis, TN 38102

Name: TULUL TUM, MYNOR SEBASTIAN A 205-756-304

Date of this notice: 3/8/2016

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

Enclosure

Panel Members: Greer, Anne J. Neal, David L O'Herron, Margaret M

Sincerely,

DOYLIU- C WV\)

Donna Carr Chief Clerk

Use rte am= Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

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Cite as: Mynor Sebastian Tulul Tum, A205 756 304 (BIA March 8, 2016)

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

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A205 756 304 - Memphis, TN

In re: MYNOR SEBASTIAN TULUL TUM

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Ellis D. Bingham III, Esquire

APPLICATION: Reopening

ORDER:

MAR - 8 2015

The respondent appeals from the Immigration Judge's October 24, 2014, order denying his

motion to reopen. The respondent was ordered removed in absentia on July 31, 2013. We

review an Immigration Judge's findings of fact for clear error, but questions of law, discretion,

and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R. §§ 1003.l(d)(3)(i),

(ii). On review, in light of the totality of the circumstances presented in this matter, we will

reopen proceedings and allow the respondent another opportunity to appear for a hearing.

Accordingly, the appeal is sustained, 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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Cite as: Mynor Sebastian Tulul Tum, A205 756 304 (BIA March 8, 2016)

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT MEMPHIS, TENNESSEE

IN THE MATTER OF:

TULUL-TUM, MYNOR SEBASTIAN A205-756-304

RESPONDENT

APPLICATION: Motion to Reopen

ON BEHALF OF RESPONDENT Ellis D. Bingham, III, Esq. Bingham at Law, LLC 218 16th Street North Bessemer, AL 35020

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October Z4, 2014

ON BEHALF OF DHS Jonathan M. Larcomb, Esq. Assistant Chief Counsel 167 N. Main Street, Room 73 7 A Memphis, TN 38103

DECISION ON MOTION BY THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

Mynor Sebastian Tulul-Tum (Respondent) a native and citizen of Guatemala, entered the United States at or near Laredo, Texas, on or about November 11, 2012. On November 14, 2012, Respondent was personally served with a Notice To Appear (NTA), which charged him as removable under INA§ 212(a)(6)(A)(i) (entry in the United States without being admitted or paroled). Exh. 1. The NT A scheduled Respondent for a master calendar hearing before the Portland Immigration Court at a date and time to be set. Id On December 2, 2012 the Portland Immigration Court mailed and faxed a Notice of Hearing to Respondent, care of a custodial officer, which directed him to appear for a master calendar hearing on December 13, 2012. Respondent appeared for that hearing and his case was set for a master calendar hearing on March 21, 2013. On or about December 23, 2012, Respondent was released from HHS custody and reported that he would live with Cristobal Tzep Ixtos at 1407 York Street, Sheffield, AL 35660. On January 3, 2013, Immigration Judge Andrea Sloan transferred the jurisdiction of Respondent's case to this Court. Exh. 2. This Court, on January 10, 2013, mailed Respondent a Notice of Hearing for a master calendar hearing on July 31, 2013. Respondent failed to appear for this hearing and the Court ordered Respondent removed in absentia to Guatemala.

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On September 6, 2014, Respondent, through counsel, filed a Motion to Reopen with the Memphis Immigration Court. The Motion to Reopen alleges that Respondent's case should be reopened because Respondent did not receive notice of his July 31, 2013 hearing. Respondent's Motion to Reopen at 1. The Department of Homeland Security (DHS) filed a response to Respondent's Motion to Reopen on September 8, 2014. Respondent's Motion to Reopen is now ripe for decision.

II. ANALYSIS

According to the Immigration and Nationality Act (INA), as well as federal regulations, an order of removal entered in absentia pursuant to INA§ 240(b)(5)(A) may be rescinded upon a motion to reopen filed in only one of the following ways: (i) within 180 days after the date of the order of removal if the alien shows that the failure to appear was due to exceptional circumstances, or (ii) at any time if the alien demonstrates that he or she did not receive notice in accordance with INA§ 239(a)(l) or (a)(2). INA§ 240(b)(5)(C); 8 C.F.R. §1003.23(b)(4)(ii) (2013). Furthermore, the filing of said motion shall stay the removal of the alien pending disposition of the motion by the Immigration Judge. INA§ 240(b)(5)(C); 8 C.F.R. §1003.23(b)(4)(ii). An alien may file only one such motion to reopen. 8 C.F.R. §1003.23(b)(4)(ii).

As Respondent claims a lack of notice, he must demonstrate that he did not receive notice in accordance with INA§ 239(a). INA§ 240(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(ii). INA§ 239(a) provides that in removal proceedings the NTA and all notices of hearing "shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien's counsel of record, if any) .. . . " INA§ 239(a). An Immigration Judge is authorized to proceed in absentia ifDHS "establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable." INA§ 240(b)(5)(A).

Service by mail is sufficient if there is proof of attempted delivery to the last address provided by the alien in accordance with INA§ 239(a)(l )(F). INA§ 239(C); see INA§ 240(b)(5)(A); see also 8 C.F.R. § 1003.26(d) (2013). Service means physically presenting a document or mailing it by "regular mail" to the appropriate party or parties. 8 C.F.R. § 1003.13 (2013). Under INA§ 239(a)( l )(F), the alien has the obligation to immediately provide (or have provided) a written record of his or her most recent address and continually update the Court as to any change of address. INA § 239(a)(l )(F) (emphasis added). For aliens not in detention, written notices of hearing are not required if the alien has failed to provide the address required under INA§ 239(a)(l)(F). INA§ 239(a)(2)(B); see INA§ 240(b)(5)(B); see also 8 C.F.R. § 1003.26(d). When an alien fails to appear at removal proceedings for which notice of the hearing was served by mail, an in absentia order may only be entered where the alien has received, or can be charged with receiving, a Notice to Appear informing the alien of the statutory address obligations associated with removal proceedings and of the consequences of failing to provide a current address, pursuant to INA§ 239(a)(l)(F). Matter ofG-Y-R-, 23 I&N Dec. 181, 189-90 (BIA 2001).

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In the present case, Respondent's affidavit simply states that "I did not receive any notice that I was required to be in Immigration Court in Memphis, Tennessee on July 31, 2013." Respondent's Motion to Reopen at Tab F. DHS opposes Respondent's Motion as Respondent has not provided evidence to support his unsubstantiated claim that he was unaware of his hearing. DHS Response at 2.

The Court does not find that Respondent has demonstrated that he did not receive notice in accordance with INA§ 239(a). Respondent was personally served with the NTA on November 14, 2012, as evidenced by his signature on the document. Exh. 1. Upon release from HHS custody on or about December 23, 2012, Respondent reported that he would be living with Cristobal Tzep Ixtos at "1407 York Street, Sheffield, AL 35660." On January 10, 2013, this Court mailed to Respondent, at that address, a Notice of Hearing, directing him to appear before this Court on July 31, 2013. Exh. 3. Respondent argues that this Notice of Hearing is "ambiguous as to how the notice was delivered to respondent. The bottom of the notice indicates that the document was served by mail and personal service to the alien . . .. If the alien was served by personal service, then an order of removal in absentia could not have been issued. This in turn raises a presumption that he was never served by mail, because staff believed he was served personally." Motion to Reopen at 2. The Court does not find Respondent's argument persuasive. At the bottom of every Notice of Hearing, the Court is given two options for indicating how the document was served: "Mail (M)" and "Personal Service (P)." On Respondent's Notice of Hearing, the Court's staff member who completed the Certificate of Service circled both "M" and "P" on the line how the document was served and marked a "M" next to "Alien" and a "P" next to "DHS." Exh 3. These notations indicate that Respondent was served by mail and DHS was personally served. This system of indicating the type of service is standard procedure by this Court. Had Respondent been personally served, the Certificate of Service would have included a "P" next to "Alien." The Court does not find that Respondent's argument that the Court's staff member believed Respondent had been personally served and as a result did not serve him by mail to have merit. Therefore, the Court finds that Respondent has not met his burden to demonstrate that he did not receive notice of the hearing.

Further, Respondent knew that he was in removal proceedings, as is evidenced by his attendance at the December 13, 2012 hearing before the Portland Immigration Court. At that time, Respondent's case was set for a hearing on March 21, 2013 and Respondent was informed both in written form and orally in his native language of his next hearing. Even if Respondent had not received the notice from this Court of his July 31, 2013 hearing, the Court would have expected the Respondent to have inquired about the status of his case at some point before he learned of the Order of Removal in absentia on October 1, 2013. Motion to Reopen at Tab F. Additionally, Respondent states that after he learned about the Order of Removal, he "immediately hired an attorney to help me with me [sic] case." Id. The Court notes, however, that Respondent's Motion to Reopen was not filed for more than 11 months after Respondent "immediately hired" an attorney. This demonstrates a lack of due diligence on the part of Respondent in rectifying his immigration proceedings.

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Additionally, any motion to reopen in order to proceed with an application for relief must be accompanied by the appropriate application for relief and all supporting documents. 8 C.F.R. § 1003.23(b)(3) (2012). Respondent's Motion states that Respondent "is eligible for relief under the Special Immigrant Juvenile Status." Respondent's Motion to Reopen at 1. Respondent has attached a Form I-360 Petition for Amerasian, Widow( er), or Special Immigrant. Id. at Tab C. On this form, Respondent has indicated that he has been declared dependent by a juvenile court in the United States, that a juvenile court has declared that reunification with one or both of his parents is not viable, and that he has been subject of proceedings in which it was determined that it would not be in his best interest to be returned to his or his parent's country of nationality. Id. However, Respondent provides no supporting documentation of these facts. Therefore, the Court cannot find that Respondent has demonstrated prima facie eligibility for Special Immigrant Juvenile Status.

A party seeking reopening bears a "heavy burden" as motions to reopen are disfavored. Alizoti v. Gonzales, 4 77 F .3d 448, 451 (6th Cir. 2007) (quoting Doherty v. INS, 502 U.S. 314, 323 (1992)). Respondent has not met this burden. In sum, Respondent's Motion to Reopen is denied as he did not demonstrate that he did not receive notice of hearing and he has not demonstrated prima facie eligibility for relief. For the foregoing reasons, Respondent's Motion to Reopen is denied.

III. ORDER

For the foregoing reasons, the following ORDER is HEREBY ENTERED:

It is HEREBY ORDERED that Respondent's Motion to Reopen be DENIED.

DATED this ii day of October, 2014.

��-�� Honorable Charles� Immigration Judge

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