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 22041

DHS/ICE Office of Chief Counsel - HLG

1717 Zoy Street
Harlingen, TX 78552

Name: MEDINA-HERNANDES, MILTON ...

A 098-993-235
Date of this notice: 3/15/2016

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

DOWtL C!

t1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.
Adkins-Blanch, Charles K.
Guendelsberger, John

Userteam: Docket

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Cite as: Milton Mauricio Medina-Hernandes, A098 993 235 (BIA March 15, 2016)

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Cheung, Rosana Kit Wai, Esq.

Law Offices of Rosana Kit Wai Cheung
617 S. Olive Street, Suite 915
Los Angeles, CA 90014

U.S. Department of Justice

Decisio_ of the Board of Immigration Appeals

Executive Office. for Immigration Review

Falls Church, Virginia 22041

Date:

File: A098 993 235 - Harlingen, TX

MAR

5 2015

In re: MILTON MAURICIO MEDINA-HERNANDES

ON APPEAL
ON BEHALF OF RESPONDENT: Rosana K. Cheung, Esquire
ON BEHALF OF DHS:

Gabriel A. Couriel
Assistant Chief Counsel

APPLICATION: Reopening

The respondent has appealed the Immigration Judge's decision dated January 5, 2015,
denying his motion to reopen. An Immigration Judge had previously ordered the respondent
removed in absentia for his failure to appear at the hearing on September 27, 2005. We review
an Immigration Judge's 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). Upon our
de novo review, in light of the totality of the circumstances presented in this matter, we will
sustain the appeal and reopen the proceedings to allow the respondent another opportunity to
appear for a hearing. Accordingly, the following order will be entered.
0RDER: The respondent's appeal is sustained, the proceedings are reopened, the in absentia
removal order is rescinded, and the record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion and the entry of a new decision.

Iv{

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FORTHEBA

Cite as: Milton Mauricio Medina-Hernandes, A098 993 235 (BIA March 15, 2016)

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

IN REMOVAL PROCEEDINGS

....- ......:.

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550

FILE A 098-993-235
IN THE MATTER OF
MEDINA-HERNANDES, MILTON MAURICIO

DATE: Jan 6, 2015

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:

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IMMIGRATION COURT
-.9 .w. JEFFERSON AVE, STE 300
78550
-:,-

CC: ASSISTANT CHIEF COUNSEL

1717 ZOY ST.
HARLINGEN, TX, 785520000

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

Law offices of Rosana Cheung

Cheung, Rosana Kit Wai
617 South Olive Street
915
Los Angele; CA 90014

'....../

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
HARLINGEN IMMIGRAT:? T
HARLINGEN, TE

MILTON MAURICIO MEDINAHERNANDES

RESPONDENT
APPLICATIONS:

)
)
)
)
)
)

Jan ,2015
File Number: A 098 993 235
In Removal Proceedings

Motion to Reopen, Request for Stay, and Request for Fee Waiver

ON BEHALF OF THE RESPONDENT

Rosana Kit Wai Cheung, Esq.
Law Offices of Rosana Kit Wai Cheung
617 S. Olive Street, Suite 915
Los Angeles, CA 90014

ON BEHALF OF THE GOVERNMENT

Assistant Chief Counsel
U.S. Department of Homeland Security
1717 Zoy Street
Harlingen, TX 78552

DECISION OF THE IMMIGRATION JUDGE

On September 27, 2005, the Court ordered the respondent removed to Honduras in absentia
pursuant to section 240(b)(5)(A) of. the Immigration and .Nationality Act (INA or Act). On
November 21, 2014, the respondent, through counsel, filed a motion to reopen requesting that his
removal proceedings be reopened based on lack of notice and pursuant to the Court's sua sponte
authority. The respondent's motion to reopen will be denied. 1
In his statement submitted in support of the motion to reopen, the respondent asserts that he
never received notice of his September 27, 2005 removal hearing. He also disputes not having
provided immigration officials with a valid United States mailing address upon release. He states
that he gave the Border Patrol agent his uncle's Bronx, New York address.
The respondent was personally served with a Notice to Appear on July 15, 2005. Exh. #1.
The Notice to Appe advises the respondent that his hearing date was "to be set." Id The Notice to
1 Because the motion to reopen is denied, the motion for a stay of removal is denied as moot.
There is no fee required for a motion to reopen a removal order entered in absentia, when the claim is that notice of
hearing was not provided. 8 C.F.R. 1003.24(b)(2)(v). As such, the Court finds the respondent's request to waive the
fee for the instant motion to reopen unnecessary because the respondent's motion challenges whether the respondent
received proper notice.

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IN THE MATTER OF

'"--".'

Appear also advised the respondent of the consequences of failing to appear and his address
obligations under section 239(a)(l)(F) of the Act The record is devoid of any evidence that the
respondent provided immigration officials with a mailing address prior to his release from custody or
with the Court after having been served with the Notice to Appear.

To the extent the respondent requests reopening to apply for asylum,withholding of removal,
and protection under the Convention Against Torture,the Court concludes the respondent's motion
is untimely. INA 240(c)(7)(C)(i). The respondent has also not shown that his motion to reopen
qualifies for an exception to the general 90-day filing deadline set forth in the Act. INA
240(c)(7)(C)(ii)-(iii). The respondent has not provided any evidence of, or even intimated, that his
motion to reopen in order to seek asylum is based on changed country conditions in Honduras. INA
240(c)(7)(C)(ii). Consequently, the Court will not reopen these proceedings for this purpose.
The respondent also seeks reopening so that he may apply for adjustment of status based on
his marriage to a United States citizen. The motion includes a copy of the pending visa petition
recently filed by the respondent's spouse. While the Court may reopen proceedings where the alien
is the beneficiary of a pending 1-130 visa petition filed by an immediate relative,certain requirements
must be met, including that the motion must be timely. See Matter of Velarde-Pacheco, 23 I&N
Dec. 253,256 (BIA 2002). Here,respondent's motion was filed after the ninety day period in which
a motion to reopen must be filed. INA 240(c)(7)(C)(i); 8 C.F.R. 1003.23(b)(l).
Finally, the respondent's motion does not demonstrate an "exceptional situation" that would
warrant the exercise of the Court's discretion to reopen these proceedings sua sponte. See Matter of
J-J-, 21 I&N Dec. 976, 984 (BIA 1997). Becoming potentially eligible for new relief after a final
administrative order of removal has been issued is not uncommon and untimely motions to reopen to
seek such relief will generally be denied. See Matter of Yauri, 25 l&N Dec. 103, 105, 110 (BIA
2009) (holding that "we conclude that sua sponte reopening of exclusion, deportation, or removal
proceedings pending a third party's adjudication of an underlying application that is not itselfwithin
our jurisdiction ordinarily would not be warranted as a matter of discretion").

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The Court finds the respondent has not demonstrated that he cannot be charged with having
receive proper notice in accordance with section 239(a)(l) of the Act. The respondent has not
demonstrated that the Court was obligated to provide the respondent with written notice of hearing
.where he failed to provide an address under section 239(a)(l )(F) of the Act. See INA 240(b)(S)(B)
(discharging the Court's obligation to provide an alien with written notice of hearing if the alien has
failed to provide an address). Additionally, the Court finds that the respondent's statement is
insufficient to support a finding of lack of notice because the statement does not even include the
address the respondent alleges he provided upon his arrest. See United States v. Armstrong, 517 U.S.
456 (1996) (recognizing the presumption that; government employees properly perform their duties).
Accordingly, the Court will not reopen these removal proceedings pursuant to section
240(b)(5)(C)(ii) of the Act.

Accordingly, the following orders shall be entered:

ORDER: The respondent's motion to reopen is DENIED.

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