U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Murphy, Theodore J., Esq. OHS/ICE Office of Chief Counsel - DAL
Murphy Law Firm, PC 125 E. John Carpenter Fwy, Ste. 500
320 N. High Street Irving, TX 75062-2324
West Chester, PA 19380

Name: MATA-SICILIANO, JUAN ALBER . A 094-790-928

Date of this notice: 5/11/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.
Kelly, Edward F.
Mann, Ana

Lu!,;r.ge5
Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Juan Alberto Mata-Siciliano, A094 790 928 (BIA May 11, 2017)
U.S. Department o-r Justice Decision of the Board oflmmigration Appeals
Exec11tive Office for Immigration Review

Falls Church, Virginia 22041

File: A094 790 928 - Dallas, TX Date:

AY 1 1 2017
In re: JUAN ALBERTO MATA-SICILIANO

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Theodore J. Murphy, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of El Salvador, was ordered removed from the United
States in absentia on November 6, 2006, after not appearing at a hearing. He filed a motion to
reopen on September 12, 2016, and appeals from the Immigration Judge's decision dated
November 10, 2016, denying the motion. The appeal will be sustained.

We review Immigration Judges' findings of fact for clear error, but questions of law, discretion,
and judgment, and all other issues in appeals, de novo. 8 C.F.R. 1003.l(d)(3)(i), (ii).

On appeal, the respondent argues that he did not receive notice of the hearing. The respondent
states that he provided his uncle's address as his mailing address, and the Notice of Hearing was
not received by his uncle. See Matter ofM-R-A-, 24 l&N Dec. 665 (BIA 2008) (setting forth the
factors for rebutting the presumption of delivery of regular mail). The Notice of Hearing was
mailed to the address provided by the respondent, and it was not returned as undeliverable.
However, the order of removal, entered in absentia, was mailed to the same address, and it was
returned as undeliverable. In addition, the respondent's uncle submitted a letter wherein he states
that he resided at that address at the time the Notice of Hearing was mailed, and he did not receive
it. The respondent also states in his affidavit that his uncle never informed him that a Notice of
Hearing was received. We recognize, as did the Immigration Judge, that the respondent was not
actually residing with his uncle when the hearing notice was mailed. See section 240(b)(5)(B) of
the Immigration and Nationality Act, 8 U.S.C. 1229a(5)(B) (providing that no written notice
shall be required under this provision if the alien has failed to provide the address required under
section 239(a)(l)(F) of the Act). However, the respondent did not waive his right to notice of his
hearing by designating his uncle's address as his mailing address. In light of the foregoing, we
will reopen these proceedings based on lack of notice. Accordingly, the following order will be
entered.

ORDER: The appeal is sustained, the in absentia order of removal is vacated, and these
proceedings are reopened and remanded for further proceedings consistent with the foregoing
opllllon.

Cite as: Juan Alberto Mata-Siciliano, A094 790 928 (BIA May 11, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS

IN THE MATIER OF: )

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) IN REMOVAL PROCEEDINGS
MATA-SICILIANO, Juan )
) A94-790-928
RESPONDENT )

CHARGE: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA or

Act), as amended, in that you are 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.

APPLICATION: Motion to Reopen

ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT

OF HOMELAND SECURITY:
Theodore K. Murphy, Esq. Paul B. Hunker III, Esq.
Murphy Law Firm, P.C. Chief Counsel
320 North High Street 125 E. John Carpenter Freeway, Suite 500
West Chester, PA 19380 Irving, TX 75062

WRITTEN DECISION OF THE IMMIGRATION JUDGE

This matter is before the Court pursuant to Respondent's motion to reopen filed on

September 12, 2016. Respondent alleges that he did not receive notice of his hearing thus

resulting in an in absentia order entered on November 6, 20016. He also requests reopening to

apply for asylum based on changed country conditions in El Salvador. The Department of

Homeland Security (the Government) has not filed a response. For the reasons set forth below,

the Court will DENY Respondent's Motion.

A. Lack of Notice

Within five days of any change of address, an alien in removal proceedings must

complete and file a change of address form (Form EOIR-33) with the immigration court. 8

C.F.R. 1003.15(d)(2). The NTA informs the alien of his obligation to immediately provide a

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written record of any change in address or telephone number and the consequences of failing to

do so. See INA 239(a)(l)(F). The NTA also includes the consequences for failing to appear at a

scheduled hearing. See INA 239(a)(l)(G).

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If the alien does not attend a scheduled 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)(5)(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 in absentia order may be rescinded upon a motion to reopen filed at any time if the

alien can demonstrate that he did not receive adequate notice of the hearing. INA

240(b)(5)(C)(ii); 8 C.F.R. 1003.23(b)(4)(iii)(2). However, when written notice is properly

addressed and sent to the alien by regular mail according to normal office procedures, a

presumption of delivery arises. Matter ofM-R-A-, 24 I&N Dec. 665, 673 (BIA 2008). Once the

presumption of delivery arises, the burden is on the alien to provide proof that the document was

not received. Id. at 674. The Court may consider all relevant evidence of record to overcome the

presumption of delivery. Id. at 673-74. Evidence may include, but is not limited to:

(1) [T]he respondent's affidavit; (2) affidavits from family members or other
individuals who are knowledgeable about the facts relevant to whether notice was
received; (3) the respondent's actions upon learning of the in absentia order, and
whether due diligence was exercised in seeking to redress the situation; ( 4) any
prior affirmative application for relief, indicating that the respondent had an
incentive to appear; (5) any prior application for relief filed with the Immigration
Court or any primafacie evidence in the record or the respondent's motion of
statutory eligibility for relief, indicating that the respondent had an incentive to
appear; (6) the respondent's previous attendance at Immigration Court hearings, if

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 applicable; and (7) any other circumstances or evidence indicating possible non
receipt of notice.

Id. at 674. However, an 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

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does not entitle the alien to a rescission of his removal order. Gomez v. Holder, 560 F.3d 354,

360-61 (5th Cir. 2009); Matter ofM-R-A-, 24 I&N Dec. at 675. Also, no written NOH is required

if a respondent fails to provide an address he or she can be contacted at as required under INA

239(a)( l )(F) and reflected in the NTA. See INA 240(b)(5)(B).

In this case, the Court finds that Respondent is not entitled to rescission of his in absentia

order due to his neglect of his obligation to provide an address that he could be contacted at and

he was not entitled to notice. Gomez v. Holder, 560 F.3d at 360-61; INA 240(b)(5)(B). It

appears that Respondent purposefully avoided his removal hearing. Although Respondent

provided his uncle's address at "3333 Webb Chapel, Apt. 221, Dallas, Texas 75220," according

to his affidavit, Respondent was actually living in Houston, Texas. See Resp't. Mot. to Reopen,

Tab Q, at 208-09. The I-213 states that Respondent claimed to be heading to the Webb Chapel

address to reside with his friend, Mario Medina. See Ex. 3. The I-213 also makes no mention of

his uncle, Noe Siciliano. Further, Respondent had been properly served with his NTA as

evidenced by his signature, thus he was on notice that he was in removal proceedings, his

obligations to the Court and consequences of failing to appear. He did not file this motion until a

decade later. Thus this case is not about lack of notice, but rather Respondent's failure to comply

with his obligations to the Court, he was not entitled to notice and is not entitled to rescission of

his in absentia order.

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 Alternatively, even if the Court construed Respondent's motion as a true lack of notice

claim, it will find that Respondent has failed to offer sufficient evidence to rebut the presumption

of delivery using the factors under Matter ofM-R-A-.

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The NTA included Respondent's reported address as "3333 Webb Chapel, Apt. 221,

Dallas, Texas 75220." The Court mailed a notice of hearing to this address on July 18, 2006.

This notice was not returned to the Court as undeliverable. (1) According to Respondent's

affidavit, he relied upon his uncle to receive Respondent's mail at the web chapel address. See

Resp't. Mot. to Reopen, Tab Q, at 208. (2) Noe also claims that he did not receive any mail from

the Court at this address and he lived there from 2006 to 2008. See id. Tab T, at 226. (3) It is

unclear when Respondent learned of his in absentia order but it is clear that he did not take any

action on his case until a decade later. (4)-(5) Respondent did not have any prior applications for

relief nor does it appear that he was eligible for relief when he entered the country on June 26,

2006. In particular, the I-213 indicates that Respondent did not claim any fear of returning to El

Salvador when he was caught at the border. (6) Respondent did not attend any hearing with the

Court. (7) The Court also notes that the in absentia order was mailed to the Webb Chapel address

on November 6, 2006 and returned to the Court as undeliverable.

In balancing the factors, the Court finds that Respondent has not rebutted the presumption

of delivery. The Court is particularly concerned about the ten year gap in Respondent pursuing

his case, his lack of prior incentive to appear, and use of an address where he was not living. The

Court will deny Respondent's motion on this basis.

The Court will also deny Respondent's motion on the basis that if an alien fails to receive

actual notice of his removal hearing "through some failure in the internal workings of the

household" he may still be charged with receiving proper notice. See Ojeda-Calderon v. Holder,

4
726 F.3d 669, 673 (5th Cir. 2013); Matter ofG-Y-R-, 2 3 l&N Dec. at 1 89. Such is the case in this

instance. Thus, the Court finds that Respondent may be charged with receiving proper notice and

the Court will not reopen the proceedings based on lack of notice.

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8. Reopening to apply for asylum, withholding of removal, and protection under the
convention against torture (CAT) based on changed country conditions

A respondent can file a motion to reopen outside the normal filing deadline if the basis of

the motion is to apply for asylum, withholding of removal, or protection under the CAT and is

based on "changed country conditions arising in the country of nationality or the country to

which removal has been ordered." 8 C.F.R. l003.23( b)(4 )( i). The evidence must be material

and must have been unavailable and could not have been discovered or presented at the previous

hearing. Id.; Matter ofS-Y-G-, 24 I&N Dec. at 252 . A respondent must also "make a prima facie

showing that there is a reasonable likelihood that the relief sought would be granted at the

reopened hearing." Ramos, 622 F. App'x. at 433.

The Court finds no evidence in the record to establish a material change in country

conditions in El Salvador since Respondent missed his November 6, 2006 hearing to present.

Respondent submitted evidence of generalized violence in his home country that has been

widespread and ongoing since before he entered the U.S. Much of this evidence details the gangs

that have been an ongoing problem in El Salvador. Respondent even admits that he encountered

a gang member in 2002 before he came to the U.S. See Resp't. Mot. to Reopen, Tab Q, at 209. If

anything, Respondent only discusses changed personal circumstances with events relating to his

friends and family as well as his events related to his partner. The Fifth Circuit very recently

reaffirmed that a change in personal circumstances does not constitute changed country

conditions. See Singh v. Lynch, No. 15-60400 , 2016 U.S. App. LEXIS 18910 at *3 (5th Cir. Oct.

20, 201 6). A motion to reopen can be denied where the evidence only shows a continuance of the

5
 _J

same type of conditions in the home country. See id. As such, the Court will deny Respondent's

motion on this basis.

The Court also notes that Respondent does not appear to have much of an actual asylum

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claim other than fear of generalized violence and gangs. See Resp't Mot. to Reopen, Tab P.

Thus, it does not seem that Respondent will be able to show that he has a well-founded fear of

persecution on account of one of the protected grounds. See INA 208(b)(1 )(B)(i); INS v. Elias-

Zacarias, 502 U.S. 478 (1992); Matter ofMogharrabi, 19 l&N Dec. 439, 447 (BIA 1987)

(finding that applicants fearing retribution over purely personal matters or aliens fleeing general

conditions of violence and upheaval in their countries are ineligible for asylum).

The Court will deny Respondent's motion to reopen for failing to establish a material

change in country conditions.

C. Sua Sponte

The Court declines to exercise its sua sponte authority to reopen as this case is not a truly

exceptional situation. See Matter of G-D-, 22 I&N Dec. 1132, 1133-34 (BIA 1999). "[l]t is not

meant to be used as a general cure for filing defects or to otherwise circumvent regulations,

where enforcing them might result in hardship." Matter ofJ-J-, 21 l&N Dec. at 984 (BIA 1997).

ORDER

IT IS HEREBY ORDERED that Respondent's motion to reopen is DENI

Date: .l.Qth day of November, 2016

Dallas, Texas