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    Felix Rosario, A075 930 968 (BIA July 10, 2015)

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    Immigrant & Refugee Appellate Center, LLC
    In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an order of removal issued in absentia upon finding the respondent did not receive proper notice of the hearing. The immigration judge had denied the motion because the respondent did not submit any affidavits from family members and because he believed the respondent lacked an incentive to appear at the hearing. The decision was issued by Member John Guendelsberger and was joined by Member Edward Grant and Member Hope Holiona. Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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    © All Rights Reserved
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    Felix Rosario, A075 930 968 (BIA July 10, 2015)

    Uploaded by

    Immigrant & Refugee Appellate Center, LLC
    98 views5 pages
    In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an order of removal issued in absentia upon finding the respondent did not receive proper notice of the hearing. The immigration judge had denied the motion because the respondent did not submit any affidavits from family members and because he believed the respondent lacked an incentive to appear at the hearing. The decision was issued by Member John Guendelsberger and was joined by Member Edward Grant and Member Hope Holiona. Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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    In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an order of removal issued in absentia upon finding the respondent did not receive proper notice of the hearing. The immigration judge had denied the motion because the respondent did not submit any affidavits from family members and because he believed the respondent lacked an incentive to appear at the hearing. The decision was issued by Member John Guendelsberger and was joined by Member Edward Grant and Member Hope Holiona. Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    98 views5 pages

    Felix Rosario, A075 930 968 (BIA July 10, 2015)

    Uploaded by

    Immigrant & Refugee Appellate Center, LLC
    In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an order of removal issued in absentia upon finding the respondent did not receive proper notice of the hearing. The immigration judge had denied the motion because the respondent did not submit any affidavits from family members and because he believed the respondent lacked an incentive to appear at the hearing. The decision was issued by Member John Guendelsberger and was joined by Member Edward Grant and Member Hope Holiona. Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 5

    U.S.

    Department of Justice
    Executive Office for Immigration Review
    Board ofImmigration Appeals
    Office of the Clerk
    5 J 07 Leesburg Pike, Suite 2000
    Falls Church. Virginia 20530

    OHS/ICE Office of Chief Counsel - NYC


    26 Federal Plaza, 11th Floor
    New York, NY 10278

    Name: ROSARIO, FELIX

    A 075-930-968
    Date of this notice: 7/10/2015

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

    DOWtL

    t1ftA)

    Donna Carr
    Chief Clerk
    Enclosure
    Panel Members:

    Grant, Edward R.
    Guendelsberger, John
    Holiona, Hope Malia

    Userteam:

    Docket

    For more unpublished BIA decisions, visit


    www.irac.net/unpublished/index/
    Cite as: Felix Rosario, A075 930 968 (BIA July 10, 2015)

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

    Javier, Tiffany
    BRETZ & COVEN, LLP
    305 Broadway, Suite 100
    New York, NY 10007

    U.S. Department of Justice

    Executive Office for Immigration Review


    Board ofImmigration Appeals
    Office of the Clerk
    5107 Leesburg Pike, Suite 2000
    Falls Church, Virginia 20530

    OHS/ICE Office of Chief Counsel - NYC


    26 Federal Plaza, 11th Floor
    New York, NY 10278

    Name: ROSARIO, FELIX

    A 075-930-968

    Date of this notice: 7/10/2015

    Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
    provided to you as a courtesy. Your attorney or representative has been served with this
    decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
    removed from the United States or affirms an Immigration Judge's decision ordering that you
    be removed, any petition for review of the attached decision must be filed with and received
    by the appropriate court of appeals within 30 days of the date of the decision.
    Sincerely,

    DorutL

    t1/lA)

    Donna Carr
    Chief Clerk
    Enclosure
    Panel Members:

    Grant, Edward R.
    Guendelsberger, John
    Holiona, Hope Malia

    Userteam:

    Cite as: Felix Rosario, A075 930 968 (BIA July 10, 2015)

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

    ROSARIO, FELIX
    A075-930-968
    HUDSON COUNTY CORRECTIONAL
    30-35 HACKENSACK AVE
    KEARNEY, NJ 07032

    U.S. Department of Justice

    Executive Office for Immigration Review

    Decision of the Board of Immigration Appeals

    Falls Church, Virginia 20530

    File: A075 930 968 - New York, NY

    Date:

    !JUL l O 2015

    In re: FELIX ROSARIO

    APPEAL
    ON BEHALF OF RESPONDENT: Tiffany Javier, Esquire
    APPLICATION: Reopening
    The respondent, a native and citizen of the Dominican Republic, appeals the decision of the
    Immigration Judge, dated April 1, 2015, denying his motion to reopen.
    Upon consideration of the totality of the record, we are satisfied that the respondent has
    established that the order of removal, entered in absentia on April 21, 2006, should be rescinded
    on account of lack of notice. See section 240(b)(5)(C)(ii) of the Immigration and Nationality
    Act, 8 U.S.C. 1229a(b)(5)(C)(ii); 8 C.F.R. 1003.23(b)(4)(ii); Matter of G-Y-R-, 23 I&N Dec.
    181 (BIA 2001) (holding that the entry of an in absentia order is inappropriate where the record
    reflects that the alien did not receive, or could not be charged with receiving, the charging
    document that was served at an address obtained from documents filed with the former
    Immigration and Naturalization Service several years earlier). Accordingly, the following order
    is entered.
    ORDER: The respondent's appeal is sustained, the in absentia order of removal is rescinded,
    these removal proceedings are reopened, and the record is remanded to the Immigration Court
    for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

    Cite as: Felix Rosario, A075 930 968 (BIA July 10, 2015)

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

    IN REMOVAL PROCEEDINGS

    UNITED STATES DEPARTMENT OF JUSTICE


    EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
    UNITED STATES IMMIGRATION COURT
    NEW YORK, NEW YORK
    April I, 2015

    Felix ROSARIO,
    AO?S-930-968,

    On behalf of Respondent
    Ismael Gonzales, Esq.
    Gonzales & Associates LLC
    1270 Broadway, Suite 202
    New York, NY 10001

    Nancy Torrellas, Esq.


    Assist. Chief Counsel
    New York District, ICE

    DECISION ON REQUEST TO REOPEN PROCEEDINGS


    AND STAY OF REMOVAL
    The respondent, by his attorneys, filed a motion on March 11, 2015 to rescind the court's
    April 21, 2006 in absentia removal order asserting that he was not provided with notice of the
    proceedings. The respondent also seeks a stay of removal.
    The Dep't of Homeland Security ("DHS"), Bureau of Immigration and Customs
    Enforcement ("ICE") filed written opposition to the motion on March 24, 2015. For the reasons
    stated herein, the motion to rescind the in absentia order and to reopen proceedings is denied.
    Procedural History
    The respondent was placed in removal proceedings with the service of a Notice to Appear
    ("NTA") on March 29, 2006. On April 21, 2006 the respondent failed to appear and the court
    proceeded in the absence of the respondent and issued an order of removal.
    Pertinent Provision
    Title 8 C.F.R. 1003.26 states that in any proceedings in which the respondent fails to
    appear and the respondent had notice of the hearing, the court shall conduct a hearing in
    absentia. The 8 C.F.R. 1003.23(b)(4)(ii) provides that a party seeking to reopen an in absentia
    removal order must either file a motion to reopen within 180 days after the date of the order and
    demonstrate that the failure to appear was due to exceptional circumstances or file a motion at
    any time if the respondent did not receive notice in accordance with sections 239(a)(l) or (2) of
    the Act or if the respondent was in federal or state custody and did not appear through no fault of
    the respondent.

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

    ---------------------------------------------){
    In the Matter of

    While the respondent claims he is eligible for Cancellation of Removal, he fails to


    provide sufficient evidence to demonstrate that he is eligible for such relief. The respondent is
    not married to his alleged fiancee and she provides no affidavit. Also, the respondent claims to
    have a US born citizen son, but fails to attach a copy of the birth certificate or other proof that he
    is the father of the child. The respondent fails to show that he is primafacie eligible for relief.
    Accordingly, the following orders shall be entered:
    ORDER
    IT IS ORDERED that the respondent's motion to rescind the in absentia order and
    reopen proceedings is denied;
    IT IS FURTHER ORDERED that any provisional stay issued in this matter or based
    upon any statutory or regulatory provisions granting respondent a stay pending adjudication of
    the motion is vacated and set aside forthwith;
    IT IS FURTHER ORDERED that respondent's request for stay of deportation 1 is
    deemed moot.

    The respondent requested a stay of removal.

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

    Discussion
    The respondent's motion will be denied. The respondent argues that he was never aware
    that he had been placed in removal proceedings and missed his immigration court date. In the
    Matter ofM-R-A-, 24 I&N Dec 665 (BIA 2008) the Board listed seven factors for the court to
    consider in rebutting the presumption of delivery. The respondent submitted an affidavit
    asserting he did not receive the Notice to Appear, however, he fails to submit affidavits from
    other family members. The respondent also fails to allege if he was eligible for any forms of
    relief at the time the removal proceedings were imitated as an incentive for him to attend his
    removal hearing. The respondent was the beneficiary of an immediate relative petition that was
    denied when his prior wife failed to appear for the interview. The denial of the petition
    prompted the DHS to begin removal proceedings. The immediate relative petition denial
    certainly indicates respondent had a disincentive to appear for his removal proceedings.

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