Name: ORTIZ-GARCIA, ERIKA

U.S. Department of Justice

Executive Ofce fr Immigration Review
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OHS/ICE Ofice of Chief Counsel - LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 90014
A076-708-985
Date of this notice: 4/3/2012
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Hofman, Sharon
Manuel, Elise L.
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Erika Ortiz-Garcia, A076 708 985 (BIA Apr. 3, 2012)
For more unpublished BIA decisions, visit www.irac.net/unpublished
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The responden, a native and O of Mec, wa ordere remove i asena on
Febr 24, 2011. On Mch 18, 2011, the repondet fe a moton t repen procegs, which
the Immigon Judge denie on Arl 12, 2011. The respondent fle a timely appe of that
deision. The appe w be se, pegs w be repene ad the rerd w be
remade.
Upn ree, we fnd upon the totalit of ca cs presented in ths case,
including the evidence refeng the repondet's regula aendanc before a deporton ofcer
pMt to a order of sperision we wreopen procesug the repondet's apl
of the Imigaton Judge's denia of moton under our de novo review auhort. Accordingly,
the rponde wprvide the oppornit to atd aother hering.
,.
UKEK. The appe is sse proe gs are reopened, and the reord is remade fr
fhe precne w the above opinion.
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Cite as: Erika Ortiz-Garcia, A076 708 985 (BIA Apr. 3, 2012)
UITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRTION COURT
.
606 SOUTH OLIV ST., lSTH FL.
LOS ANGELES, CA 90014
LAW OFFICES OF GLORIA WEIL-HERRERA
GLORIA WEIL-HERRERA, ESQ.
1545 WILSHIRE BLV., SUITE 710
LOS AGELES, CA 90017
IN THE MTTER OF
ORTIZ-GACIA, ERIK
FILE A 076-708-985
UNALE TO FORWAD - NO ADDRESS PROVIDED
DATE: Apr 15, 2011
X ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUDGE. THIS DECISION
IS FINAL ULESS A 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 AD INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AD FEE OR FEE WAIVER REQQEST
MUST BE MILED TO: BOARD OF IMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEAING.
THIS DECISION IS FINAL ULESS A MOTION.TO.REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMIGRTION AD NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
8 U... SECTION 1229a(c) (6) IN REMOVA PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
OTHER:
CC:
' '
IMMIGRATION COURT
606 SOUTH OLIVE ST., 15TH FL.
LOS AGELES, CA 90014
6T CLK
IMMIGRATION COURT
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File No.:
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
LOS ANGELES IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
A 076-708-985
In the Matter of: IN REMOVAL PROCEEDINGS
ORTIZ-GARCIA, Erika,
Respondent
CHARGE: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act
("INA") - Presence in the United States without admission or parole
APPLICATION: Motion to reopen pursuant to section 240(b)(5)(C)(ii) of the INA and
section 1003.23(b)(4)(ii) of Title 8 of the Code of Federal Regulations
("C.F.R")
ON BEHALF OF RESPONDENT:
Gloria Weil-Herera, Esquire
Law Ofce of Gloria Weil-Herera
1545 Wilshire Boulevard, Suite 710
Los Angeles, Califria 90017
ON BEHALF OF THE DEPARTMENT:
Assistant Chief Counsel
U.S. Department of Homeland Security
U.S. Immigration and Customs Enfrcement
606 South Olive Street, 8th Floor
Los Angeles, Califria 90014
DECISION AND ORDER OF THE IMMIGRATION JUDGE
I. PROCEDURAL HISTORY
Erika Ortiz-Garcia ("Respondent") is a 46-year-old fmale native and citizen of Mexico.
See Ex. l , at l ; Ex. 4, at 1. Respondent entered the United States at or near Nogales, Arizona, on
or about June 15, 2006, either without then having been admitted or paroled afer inspection by
an immigration ofcer or having arrived at a time or place not designated by the Attorey
General. Ex. 1, at l .
On October 14, 2009, the U.S. Department of Homeland Security apprehended
Respondent as she was attempting to board a fight at the Los Angeles Interational Airort
without being in possession of a valid travel document. See Ex. 4, at 2. There, the Deparment
personally served Respondent with a Form 1-862 Notice to Appear ("NT A") charging her wt
removability under section 212(a)(6)(A)(i) of the INA fr allegedly being present in the United
States without admission or parole afer inspection by an immigration ofcer or having arrived at
a time or place not designated by the Attorey General. Ex. l , at 1. Afer serving the NT A, the
Deparment released Respondent on her own recognizance, at which time Respondent reported a
mailing address of "3717 W. 3rd Street 202, Los Angeles, USA, Califria 90020." Ex. 2. Te
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Department then fled the NTA with the Los Angeles Immigration Court on November 30, 20 I 0,
thereby vesting jurisdiction and commencing removal proceedings against Respondent in this
Court pursuant to section 1003.14(a) of Title 8 of the C.F.R. See Ex. 1, at 1.
By way of a notice of hearing sent by regular mail to Respondent's West 3rd Street
address on December I, 20 I 0, the Court set Respondent's case fr a master-calendar hearing to
be held on February 24, 2011. See Ex. 3. The notice of hearing waed Respondent of the
consequences of filing to appear at the scheduled hearing. Id.
Respondent filed to appear at the scheduled hearing held on February 24, 2010. Afer
granting a motion by the Department to proceed in absentia pursuant to section 240(b)(5)(A) of
the IA and reviewing evidence that the Department had submitted, the Court fund Respondent
to be removable as charged by clear, convincing, and unequivocal evidence. See INA
240(b)(5)(A) (2010); 8 C.F.R. 1003.26(b) (2010); Exs. 1-4. Accordingly, the Court ordered
Respondent removed to Mexico. Decision, In re Erika Ortiz-Garcia No. A076-708-985 (L.A.
Immig. Ct. Feb. 24, 2011) (unpublished disposition).
Respondent, through counsel, fled the present motion on March 18, 2011, seeking to
reopen her proceedings in order to rescind her in absentia removal order on the ground that she
filed to appear at her removal hearing because she did not receive notice of the hearing. See
Resp.' s Mot. to Reopen, Mar. 18, 2011, at 5: 1. The Department has not responded to the motion.
Having considered Respondent's submission in light of the applicable law, the Court now denies
Respondent's motion to reopen.
II. LAW & ANALYSIS
The Court may, at any time, reopen the proceedings in a respondent's case in order to
rescind an in absentia order of removal if the respondent demonstrates that he or she did not
receive proper written notice of the date, time, and place of his or her scheduled removal hearing.
INA 240(b)(5)(C)(ii); 8 C.F.R. 1003.23(b)(4)(ii) (2010). Proper written notice requires
personal service of the hearing notice to the respondent or, if personal service is not practicable,
service by mail to the respondent or to the respondent's counsel of record. INA 239(a)(l)
(2010); 8 C.F.R. 1003.13 (2010). A presumption of efective delivery applies to notices of
hearing that are "properly addressed" and sent by regular mail "according to normal ofce
procedures." Mater of M-R-A-, 24 I&N Dec. 665, 673 (BIA 2008).
A respondent may overcome this presumption of efective delivery by presenting
sufcient evidence to support his or her claim that he or she did not receive notice. Salta v. IS,
314 F.3d 1076, 1079 (9th Cir. 2003). Motions to reopen challenging the presumption of
efective delivery demand a case-by-case evaluation. Matter of M-R-A-, 24 l&N Dec. at 674.
Evidence relevant to evaluating a challenge to the presumption of delivery includes
( l) the respondent's afdavit; (2) afdavits fom fmily members or other individuals
who are knowledgeable about the fcts relevant to whether notice was received; (3) the
respondent's actions upon leaing of the in absentia order, and whether due diligence
was exercised in seeking to redress the situation; (4) any prior afrative application fr
relief, indicating that the respondent had an incentive to appear; (S) any prior application
fr relief fled with the Immigration Court or any prima fcie evidence in the record or
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the respondent's motion of statutory eligibility fr relief, indicating that the respondent
had an incentive to appear; (6)the respondent's previous attendance at Immigration Cour
hearings, if applicable; and (7) any other circumstances or evidence indicating possible
nonreceipt of notice.
Id. See also Salta, 314 F .3d at I 079 (accepting as sufcient to overcome the presumption of
delivery the respondent's swor afdavit that neither she nor a responsible party residing at her
address receive notice, as well as evidence that she had initiated a proceeding to obtain an
immigration beneft, appeared at an earlier hearing, and had no motive to avoid the hearng);
Matter of C-R-C-, 24 l&N Dec. 677, 679-80 (BIA 2008) (fnding that the respondent overcame
the presumption of delivery by demonstrating that he did not receive the notice, he had an
incentive to appear at the hearing, and he exercised due diligence in promptly obtaining counsel
and requesting reopening of the proceedings).
In the present case, Respondent's motion claims conclusorily that she "never received the
witten notice fom the cour infring her that a hearing was scheduled." Resp.'s Mot. 5:9-10.
However, apart fom this asserion, to which the Court accords no evidentiary weight,
Respondent has filed to present any evidence of non-delivery of the hearing notice. See Matter
of S-M-, 22 I&N Dec. 49, 51 (BIA 1998) (observing that "statements in a .. . motion ... are not
evidence ad thus are not entitled to any evidentiary weight" (citing INS v. Phinpathya, 464 U.S.
183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 l&N Dec. 503 (BIA 1980))); 8 C.F.R.
1003 .23(b )(3) (requiring that motions to reopen "be supported by afdavits and other
evidentiary material").
Contrary to Respondent's unsupported assertion, the record refects that Respondent
received proper notice of her removal hearing. Upon her release fom the Department's custody,
Respondent reported her address as "3717 W. 3rd Street 202, Los Angeles, USA, Califria
90020." Ex. 2. This is the same address to which the Court mailed the hearing notice and,
notably, the same address that Respondent still apparently uses as her current address. See Ex. 3
(sending notice of the hearing to "3717 W. 3RD STREET 202, LOS ANGELES, CA 90020");
Form EOIR-28 Notice of Entr of Appearance as Attorey or Representative Befre the
Immigration Court, In re Erika Ortiz-Garcia, No. A076-708-985 (L.A. Immigr. Ct. Mar. 18,
2011) (listing Respondent's address as "3717 w. 3rd Street #202, Los Angeles, CA 90020").
Indeed, Respondent does not dispute that she resided at the W. 3rd Street address at the time of
service of the hearing notice, nor does she allege that the U.S. Postal Serice filed to deliver the
notice to the address that she had provided to the Department.
Moreover, in contrast to successfl movants in other cases, Respondent did not initiate
these proceedings to obtain a beneft, has no record of previous court appearances, and does not
allege eligibility fr any relief fom removal that might indicate that she had an incentive to
appear. Cf. 314 F.3d at 1079; Matter of C-R-C-, 24 l&N Dec. at 679-80. Although
Respndent relies on Urbina-Osejo v. INS, 124 F.3d 1314 (9th Cir. 1997), in support of her
argument that notice was defctive, this authority is inapposite because Respondent, unlike the
petitioner in that case, received adequate notifcation of the change-of-address requirement via
the NT A and, in any case, does not assert that she ever moved her residence. Compare Ex. 1,
at 2 (advising Respondent of the change-of-address requirement); Urbina-Osejo, 124 F.3d
at 1317 (fnding "no evidence in the record that Urbina was ever infrmed of the requirement").
3 of 4
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III. CONCLUSION
For the reasons set frth above, the Court fnds that Respondent has filed to demonstrate
that the proceedings in her case merit reopening in order to rescind her in absentia order of
removal on the ground that she did not receive proper notice of her removal hearing.
Accordingly, the fllowing order will be entered:
ORDER
IT IS HEREBY ORDERED that Respondent's motion to reopen be DENIED.
Monica M. Little
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 on or befre thirty (30) days from the date of
this Order.
CACT OF SC
DOME WA SD B
J)fMSERCE
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