U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 leeshurg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Name: BUESO-GUERRA, NELSON RENE

A 077-799-300

Date of this notice: 6/30/2016

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

DorutL Ct1/v'u
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
O'Leary, Brian M.

Userteam: Docket

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Chung, Sui, Esq.

Law Office of Sui Chung, P.A.
2964 Aviation Ave
Third Floor
Miami, FL 33133

'"

U.S Department of Justice

J;xecutive Office for Immigration Review

Decision ofthe Board of Immigration Appeals

Falls Church, Virginia 22041

File: A077 799 300 - Dallas, TX

In re: NELSON RENE BUESO-GUERRA

Date:

JUN 3 0 Z016

APPEAL
ON BEHALF OF RESPONDENT: Sui Chung, Esquire
APPLICATION: Reopening

The respondent, a native and citizen of Honduras, appeals from the Immigration Judge's
decision dated April 9, 2015, denying his motion to reopen his order of removal entered in
absentia The Board defers to the factual findings of an Immigration Judge, unless they are
clearly erroneous, but it retains independent judgment and discretion, subject to applicable
governing standards, regarding questions of law and the application of a particular standard of
law to those facts. 8 C.F.R. 1003.l(d)(3)(i), (ii). We have considered the totality of the
circumstances presented in this case, and find that an exceptional situation has been
demonstrated warranting reopening to allow the respondent another opportunity to apply for
relief from removal. See 8 C.F.R. 1003.23(b)(l); Matter ofJ-J-, 21 l&N Dec. 976 (BIA 1997).
Accordingly, the appeal will be sustained, the proceedings will be reopened, and the record will
be remanded.
ORDER: The appeal is sustained, the proceedings are reopened, and the record is remanded
to the Immigration Court for further proceedings.

Cite as: Nelson Rene Bueso-Guerra, A077 799 300 (BIA June 30, 2016)

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IN REMOVAL PROCEEDINGS

. ...f .

,- , ..
.
....

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

IN THE MATTER OF
BUESO-GUERRA, NELSON RENE

DATE: Apr 14, 2015

FILE A 077-799-300

;
i

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED 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
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
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:
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242
OTHER:

CC:

4.r

wRao

cOtJRTCLERK'--=.
IMMIGRATION COURT

'
Cite as: Nelson Rene Bueso-Guerra, A077 799 300 (BIA June 30, 2016)

FF

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Immigration Law & Litigation Group

Chung, Sui
2964 Aviation Ave.
Third Floor
Miami, FL 33133

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE OF IMMIGRATION REVIEW
DALLAS IMMIGRATION COURT
Date: April 9, 2015
A 077-799-300

Charge: Section 212(a)(6)(A)(i), INA

Immigration Removal Proceedings in the Matter of: Nelson Rene Bueso-Guerra,
Respondent
Application: Motion to Reopen
On Behalf of the Respondent: Sui Chung, Esq., Immigration Law & Litigation Group,
2964 Aviation Ave., Third Floor, Miami, FL 33133
On Behalf of Department of Homeland Security/Immigration and Customs Enforcement:
Paul B. Hunker III, Esq., Chief Counsel, 125 E. John Carpenter Freeway, Suite 500, Irving,
Texas 75062
WRITTEN DECISION AND ORDER OF THE IMMIGRATION JUDGE
I. PROCEDURAL HISTORY

The Respondent is a male native and citizen of Honduras. Exhibit 1. On June 26, 1999,
the Government charged the Respondent with being subject to removal from the United States.
Id. On September 21, 1999, the Respondent filed a Motion for Change of Venue. The
Immigration Judge denied the Respondent's request on September 27, 1999. The Respondent
failed to appear for his removal hearing on September 29, 1999 and was ordered removed in
absentia based on the following allegations and charge.
Allegations:
(1) He is not a citizen or national of the United States;
(2) He is a native and citizen of Honduras;
(3) He arrived in the United States at or near Brownsville, Texas on or about June 21,
1999;and
(4) He was not then admitted or paroled after inspection by an Immigration Officer.
Charge: The Government charged the Respondent as subject to removal from the United
States pursuant to Section 212(a)(6)(A)(i), INA, as amended, in that he is an alien present in the
United States without being admitted or paroled, or who arrived in the United States at any time
or place other than as designated by the Attorney General.

Page 1 of 4
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File:

Sustaining of the Charge: Based upon the evidence of record, the Court sustained the
allegations and charge of removal, specifically finding the Respondent subject to removal from
the United States to his native country of Honduras.

II. MOTION
On March 24, 2015, the Respondent filed a Motion to Reopen based on lack of notice.
The Respondent contends that the address listed on his November 4, 1999 Notice of Hearing
(NOH) was deficient, resulting in his failure to receive proper notice. The Government has not
filed a brief in response.
III. STATEMENT OF LAW & ANALYSIS
A party is limited to one motion to reopen and that motion must be filed no later than 90
days after the date on which the final administrative decision was rendered in the proceedings
sought to be reopened. 8 C.F.R. 1003.23(b)(l). A motion to reopen does not have to conform
to the above time and numerical limitations where it is (1) filed to apply or reapply for asylum
based on changed circumstances in the respondent's home country; (2) filed on the basis of a
removal order issued in absentia, when the motion to reopen is based on lack of notice or
exceptional circumstances; or (3) agreed upon by all parties and jointly filed. See 8 C.F.R.
1003.23(b)(4). An in absentia order may be rescinded upon a motion to reopen filed at any time
if the alien has not received adequate notice of the hearing. INA 240(b)(5)(C)(ii); 8 C.F.R.
1003.23(b)(4){ii).
If an alien does not attend a removal hearing after written notice has been provided to the
alien or the alien's counsel of record, the alien will be ordered removed in absentia if the
Government establishes by clear, unequivocal, and convincing evidence that written notice of the
hearing was provided and that the alien is removable. INA 240(b)(S)(A). Adequate notice can
be accomplished through personal service, or if personal service is not practicable, through
service by mail to the alien. INA 239(a)(l ). Service by mail is proper upon proof of attempted
delivery to the alien's most recently provided address. INA 239(c). The Notice to Appear
(NTA) includes the alien's obligation to immediately provide a written record of any change in
address or telephone number and the consequences of failing to do so, and also includes the
consequences of failing to appear. See INA 239(a)(l)(F), (a)(l)(G). Thus, if the alien receives
actual notice of the hearing or can be charged with receiving constructive notice, through receipt
of a NTA, in absentia proceedings are authorized. Matter of G-Y-R-, 23 l&N Dec. 181, 186 (BIA
2001).
Within five days of any change of address, the alien must provide written notice of the
change of address on Form EOIR-33 to the Immigration Court. 8 C.F.R. 1003.15(d)(2). An

Page 2 of 4

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On November 2, 1999, the Respondent filed a Motion to Reopen claiming that his failure
to attend the hearing was due to an illness. The Court granted the Respondent's motion and
reopened the proceedings. The Respondent again failed to appear for his hearing on January 12,
2000 and was ordered removed in absentia based on the above noted allegations and charge of
removal.

alien's failure to receive actual notice of a removal hearing due to neglect of his obligation to
keep the Immigration Court apprised of his current mailing address does not entitle the alien to
rescission of the removal order. Gomez-Palacios v. Holder, 560 F.3d 354, 360-61 (5th Cir. 2009);
Matter of M-R-A-, 24 I&N Dec. at 675.

Court's Finding: The Respondent's NTA reflects that he was personally served, as
evidenced by his fingerprint and signature thereon. Thus, the Respondent was on notice of the
initiation of removal proceedings, his obligation to update the Immigration Court with any
change of address, and the consequences of failing to appear as required by Section 239(a)(1),
INA. See Matter ofG-Y-R-, 23 I&N Dec. at 186. In addition, the NTA indicates that the
Respondent was advised in the Spanish language of the consequences of his failure to appear.
However, the Respondent alleges that he did not receive his NOH, mailed November 4,
1999 and thus did not have actual notice of the time and date of his January 12, 2000 hearing.
The last address the Respondent provided to the Court was the address listed in his motion to
reopen filed November 2, 1999. In this motion, he represents his address as "852 E.14th Street,
Stuart, Miami, Florida 34993." The NOH was mailed to the Respondent at this address. Service
by mail of the NOH to the last address provided by the Respondent in accordance with Section
239(a)(l)(F), INA is sufficient due to the presence of proof of attempted delivery to such
address. INA 239(c). Thus, in absentia proceedings were properly authorized. See INA
240(b)(5)(B); Matter ofG-Y-R-, 23 I&N Dec. at 187.
As to the Respondent's claim for rescission based on lack of notice, the Court must
determine whether the Respondent received actual notice of the hearing. See Gomez-Palacios,
560 F.3d at 359-60. The Respondent's motion indicates that the Court made the "crucial
mistake" of mailing his NOH to an improper address in Miami, Florida instead of Stuart, Florida.
Motion to Reopen, pg. 6. However, the Court notes that if the Respondent's address was listed
incorrectly, it was the Respondent's mistake in providing it incorrectly in his November 1999
motion. The Court mailed the Respondent's notice to the address exactly as represented in the
Respondent's pro se motion. An alien's lack of actual notice of a removal hearing due to the
failure to notify the court of his correct address does not entitle him to rescission of a removal
order. Gomez-Palacios, 560 F.3d at 360; Matter of M-R-A-, 24 I&N Dec. at 675.
Moreover, the Court would deny the Respondent's motion to reopen in the exercise of
discretion. The Court finds the Respondent to be incredible. The Respondent's affidavit
submitted with the instant motion indicates that he missed his September 1999 hearing because
his legal representative, whom he erroneously believed was an attorney, did not apprise him of
the outcome of his motion to change venue. However, the Respondent's motion to reopen
submitted to the Court in November 1999 indicates that he missed his September 1999 hearing
because he was ill. This motion is signed by the Respondent. There is no mention in the

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The granting of a motion to reopen lies within the "broad discretion" of the Immigration
Judge. See INS v. Doherty, 502 U.S. 314, 323 (1992). The Court may exercise its sua sponte
authority to reopen in "truly exceptional situations," where the interests of justice would be
served. Matter ofG-D-, 22 I&N Dec. 1132, 1133 (BIA 1999); Matter of J-J.., 21 l&N Dec. 976
(BIA 1997).

'

Respondent's present affidavit of any alleged illness. In addition, the Respondent contends that
he did not know that the person who prepared his motion to change venue was not a lawyer.
However, his motion to change venue states, "the Applicant has no Attorney and this Motion
shall be filed as Pro Se." The Respondent also signed this motion. The Court finds the
Respondent's statements to be inconsistent and incredible.

Accordingly, the following Order shall be entered:

IV. ORDER
IT IS HEREBY ORDERED THAT the Respondent's Motion to Reopen be and is
DENIED.
Date: April 9, 2015

RicardRandallOzmun

Immigration Judge
USDOJ/EOIR

Copy to:
Chief Counsel, DHS/ICE

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Finally, the Court notes that the Respondent waited nearly 15 years to address his lack of
legal status in the United States. He was aware that he was in immigration proceedings and at
least that he had a pending motion to change venue filed. However, he outlines no efforts he
made to discover the outcome of that motion or of his proceedings in general. This demonstrates
a lack of due diligence and attempt to avoid his removal proceedings. For these reasons, the
Court would not exercise discretion to reopen the proceedings and also does not find that the
Respondent has demonstrated the requisite exceptional situation to warrant sua sponte reopening.
See Matter ofG-D-, 22 I&N Dec. at 1133; Matter ofJ-J-, 21 l&N Dec. 976.