Department of Justice
Name: C -C , M A 36
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Cynthia L. Crosby
Deputy Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
Kelly, Edward F.
Kendall Clark, Molly
Userteam: Docket
Cite as: M-C-C-, AXXX XXX 436 (BIA Sept. 29, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
APPEAL
The respondent, a native and citizen ofGuatemala, has appealed from the Immigration Judge's
March 22, 2017, decision. In that decision, the Immigration Judge denied the respondent's motion
to reopen his removal proceedings in which he was ordered removed in absentia on October 6,
2014. The Department ofHomeland Security ("OHS'') has not filed an opposition to the appeal.
The appeal will be sustained, the motion to reopen will be granted, the in absentia order will be
rescinded, and the record will be remanded for further proceedings.
We review for clear error the findings offact, including the determination of credibility, made
by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i) (2017). We review de novo all other issues,
including issues oflaw,judgment, and discretion. 8 C.F.R. 1003.l(d)(3)(ii).
The respondent entered the United States on June 23, 2014, as a minor. The respondent was
taken into custody, and the OHS served him with a Notice to Appear (Form 1-862). The respondent
was released from detention into the custody ofhis father. The respondent and his father provided
the OHS with an address in Rhode Island at which they could be served with the notice ofhearing.
On September 24, 2014, the Immigration Court mailed a notice of hearing to the address the
respondent and his father had provided. The notice of hearing indicated that the respondent's
removal hearing was scheduled for October 6, 2014. The respondent did not appear at the October
2014 hearing and he was ordered removed in absentia. On March 8, 2017, the respondent moved
to reopen his removal proceedings and rescind the removal order, claiming that he did not receive
the notice ofhearing at the address he had provided. The Immigration Judge denied the motion in
a summary order and this appeal followed.
To overcome the presumption of receipt of a notice of hearing sent by regular mail, which is
weaker than the presumption applied to a notice of hearing sent by certified mail, an alien must
present sufficient evidence showing that the notice was not received at the most recent address
Cite as: M-C-C-, AXXX XXX 436 (BIA Sept. 29, 2017)
436
provided. Matter ofM-R-A-, 24 l&N Dec. 665, 673 (BIA 2008).1 In this case, the respondent and
his father have submitted sworn statements indicating that they did not receive the notice of hearing
at the address provided and that they continued to live at this address when the notice was mailed
(Respondent's Motion at Tab D). The respondent and his father also state in their sworn statements
that they would have attended proceedings had they received the notice of hearing, and the
circumstantial evidence in this case indicates that they acted with due diligence in seeking to
In light of this evidence, we conclude that the respondent has overcome the presumption of
delivery of the notice of hearing pursuant to the standards set forth in Matter of M-R-A-. See
Matter of C-R-C-, 24 l&N Dec. 677, 679-80 (BIA 2008) (concluding that reopening was
appropriate where an alien had submitted similar evidence indicating that he had not received
notice). We will therefore sustain the respondent's appeal, reopen his removal proceedings,
rescind the in absentia removal order, and remand the record for further proceedings. Accordingly,
the following orders will be entered.
FURTHER ORDER: These proceedings are reopened, the Immigration Judge's in absentia
order is rescinded, and the record is remanded to the Immigration Court for further proceedings.
1 We agree with the respondent that neither the Act nor the regulations require an alien to submit
an application for relief along with a motion to reopen asserting that an alien did not receive notice
of his or her removal hearing (see IJ at l; Respondent's Br. at 7-10). See sections 239(a)(l)-(2),
240(b)(5)(C)(ii) of the Act; see also 8 C.F.R. 1003.23(b)(4)(ii).
Cite as: M-C-C-, AXXX XXX 436 (BIA Sept. 29, 2017)
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In the Matter of: )
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D The respondent does not oppose the motion.
D A response to the motion has not been filed with the court.
D The court agrees with the reasons stated in the opposition to the motion.
CERTIFICATE OF SERVICE
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To: D Alien D Alien c/o Custodial Officer lien's Atty/Rep HS