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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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Rilo, Nora Maria OHS/ICE Office of Chief Counsel - HLG
Law Offices of Angel F Leal, Jr 1717 Zoy Street
8700 W. Flagler Street, Suite 180 Harlingen, TX 78552
Miami, FL 33174

Name: GARAY-MURILLO, ODALIS VAN ••• A 206-763-642

Date of this notice: 11/30/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.

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Userteam: Docket

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Cite as: Odalis Vanessa Garay-Murillo, A206 763 642 (BIA Nov. 30, 2017)
' I

U.S. Department of Justice Decision of the Board of Immigration Appeals


Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A206 763 642 - Harlingen, TX Date:

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In re: Odalis Vanessa GARAY-MURILLO NOV 3 0 2017

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Nora Rilo-Manito, Esquire

ON BEHALF OF OHS: Oscar J. Montemayor


Assistant Chief Counsel

APPLICATION: Reconsideration

The Department of Homeland Security (OHS) has filed a motion requesting that the Board
reconsider the decision of June 14, 2017, in which the Board reopened proceedings and remanded
the record to the Immigration Judge to rescind the in absentia order of removal and to provide the
respondent the opportunity for a new hearing. The respondent has submitted a brief in opposition
to the motion. The motion to reconsider will be denied.

A motion to reconsider must identify a material error of fact or law in the decision for which
reconsideration is being requested. 8 C.F.R. § 1003.2(b)(l); Matter of 0-S-G-, 24 I&N Dec. 56
(BIA 2006). The OHS contends that the Board based the June 14, 2017, decision, in part, on the
erroneous premise that the OHS had not responded to the respondent's motion to reopen. We
acknowledge that the record now reflects that the OHS did submit a response to the respondent's
motion to reopen. However, the OHS did not submit that response to the Board. Rather, the
response was addressed to the Immigration Court. 1 Under these circumstances, we do not find any
material error of fact or law in our prior decision. Accordingly, we will deny the DHS's motion
to reconsider.

ORDER: The motion to reconsider is denied. "

1 We note that the respondent initially filed her motion to reopen with the Immigration Court,
where it was denied for lack of jurisdiction. The respondent then properly filed the motion to
reopen with the Board. The OHS did not file a response addressed to the Board.

Cite as: Odalis Vanessa Garay-Murillo, A206 763 642 (BIA Nov. 30, 2017)
U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk

5107 Leesburg Pike, Suite 2000


Falls Church. Vzrgm1a 22041

Immigrant & Refugee Appellate Center, LLC | www.irac.net


Rilo, Nora Maria OHS/ICE Office of Chief Counsel - HLG
Law Offices of Angel F Leal, Jr 1717 Zoy Street
8700 W. Flagler Street, Suite 180 Harlingen, TX 78552
Miami, FL 33174

Name: GARAY-MURILLO, ODALIS VAN ..• A 206-763-642

Date of this notice: 6/14/2017

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:
Kendall Clark, Molly

Userteam: Docket

., .

lJ.S. Department of Justice Decision of the Board of Immigration Appeals


Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A206 763 642 - Harlingen, TX Date:


JUN 1 !t 2017

Immigrant & Refugee Appellate Center, LLC | www.irac.net


In re: ODALIS VANESSA GARAY MURILLO

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Nora Maria Rilo, Esquire

APPLICATION: Reopening

The respondent has filed a motion to reopen proceedings. The record before us does not
contain a reply from the Department of Homeland Security (OHS), and the motion is therefore
deemed unopposed. 8 C.F.R. § 1003.2(g)(3). Proceedings will be reopened pursuant to 8 C.F.R.
§ 1003.2(a).

The respondent's motion alleges that she failed to appear at her hearing on July I, 2015, at
which she was ordered removed in a�sentia, because she did not receive notice of the hearing. See
8 C.F.R. § 1003.2(c)(3).

The record establishes that notice of the respondent's hearing was sent to her by regular mail
and that the respondent did not appear at her July I, 2015, hearing. The respondent filed her first
motion to reopen with the Immigration Judge on August 17, 2015. She claimed that she did not
receive notice of her hearing. She supported her motion with evidence that included her own
notarized statement affirming that she received her Notice to Appear (NTA) while in OHS custody,
that the NTA did not contain information about her hearing, and that she gave her address to the
OHS when she was released from custody upon payment of a $7,500 bond. The respondent further
affirmed that notice of her hearing was not provided to the address she supplied to the OHS, that
she never received notice of her hearing, and that she did not know she had been ordered removed
until she received the Notice to Obligor to Deliver Alien, which was dated July 15, 2015. The
respondent also included with her motion, a copy of her asylum application with supporting
documentation, a copy of her NTA (which did not carry a date, time, or place for her hearing), a
copy of the Notice to Obligor to Deliver Alien, and a copy of the records from her credible fear
interview.

The Immigration Judge denied the respondent's motion based on his finding that the
respondent did not submit sufficient evidence to show that she did not receive notice of her hearing.
The respondent's appeal to the Board was summarily dismissed. The respondent's current motion
� A206 763 642

includes additional evidence to support her claim that she did not receive notice of her hearing. 1
The respondent has submitted an affidavit from the owner of the home to which the respondent's
notice of hearing was mailed. The owner of the home is also the obligor on the respondent's bond.
His affidavit states that he receives all mail at the address, that he has resided at the address for 20
years, and that the only mail he received regarding the respondent's case was the Notice to Obligor
to Deliver Alien. The homeowner's identification card and proof of his home ownership are

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included with the motion.

Given the evidence that the respondent did not receive notice of her hearing and that she sought
to reopen her proceedings as soon as she knew she had missed a hearing, as well as the lack of
affirmative opposition to reopening from the DHS, we will reopen proceedings pursuant to 8 C.F.R.
§ 1003.2(a). See Hernandez v. Lynch, 825 F.3d 266, 269 (5th Cir. 2016); Matter of M-R-A-, 24
I&N Dec. 665, 672-73 (BIA 2008).

ORDER: Proceedings are reopened pursuant to 8 C.F.R. § 1003.2(a).

FURTHER ORDER: The record is remanded to the Immigration Judge to rescind the in
absentia order of removal and to provide the respondent the opportunity for a new hearing.

1 The respondent initially filed her motion with the Immigration Judge but the Immigration Judge
denied the motion for lack ofjurisdiction.