Arley Max Dos Santos, A200 068 519 (BIA May 27, 2016)

7/26/2019 Arley Max Dos Santos, A200 068 519 (BIA May 27, 2016)

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Helly

Saadz

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firm

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lentown

PA 1

8104

Nam

e: DOS

SANT

OS AR

LE Y M

AX

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epartm

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Justic

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Execu

tive O

ffice f o

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7

7060

A

200-0

68-519

Date of this notic e: 5/27/2016

Enc

losed is

a c opy

o he

Board

s decis i

on and

order in

th e a b

ove-r e

ference

d ca se.

Enclo

su re

P

anel M

embers

:

Gue

ndelsbe

rger J

ohn

Ken

dall-Cla

rk Mol

ly

Holio

na Ho

pe Mal

ia

Sin cere

ly,

Oru

tL

1/V

L)

D onna

Carr

C hie f C

le rk

User

team:

Docket

For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/

Cite as: Arley Max Dos Santos, A200 068 519 (BIA May 27, 2016)



DOS

SANT

OS AR

LEY M

AX

A2

00-068

-519

DHS/I

CE

3

40 0 C

ONCO R

D RD

YOR

K PA

17402

Nam e:

DOS S

ANTO

S A R L

EY M A

X

U

S Dep

artm e

nt o J

ustice

Execu

tive Of

fice for

Immig

ration R

eview

Boa

rd of m

migra

tion Ap

peals

Offic

e of he

Clerk

5

107 leesbu

rg Pike S

uite 2000

Fa l

ls Church

Virginia 2

2041

DHS/IC

E O ffic

e o

C

hief Co

unsel

HOU

126 N

orthpo

int Driv

e Sui

te 2020

Ho

uston

TX 77

060

A

200-0

68-519

Date

o this

notic

e: 5/27

/2016

Enc

losed

is a cop

y of

th

e Boar

d s dec

ision in

the a b

ove-ref

erenced

case .

This c

opy is

being

provid

ed to y

ou as

a court

esy. Y

our att

orney

or repr

esentat

ive has

been

served

with th

is

de

cision

pursuan

t to 8

C.F.R .

§

12

92.S(a)

. f th

e attac

hed de

cision

orders

that yo

u be

re mo

ved fro

m the

United

States

or affir

ms an I

mmigr

ation Ju

dge s d

ecision

orde ri

ng that

you

be rem

oved,

any pe

tition f

or revie

w of

th

e attac

hed de

cision m

ust be

filed w

ith an

d receiv

ed

by the

appropr

iate co

urt of

a

ppeals

within

30 days

o

f th e

date

of the dec

ision.

Enclos

ure

Panel

M em b

ers:

G

uendel

sberge

r John

Kendall-Clark

Molly

Holion

a Hope

Malia

S~n

cerely,

oru

tL

l

AJ

Do

nna Ca

rr

C

hief C le

rk

U

serteam

: : : I°

,




U S epar

tment o

f Justi

ce

Executiv

d Off

ice for Im

migratio

n Revie

w

D

ecision of

t

he Bo

ard of Im

migrati

on Appe

als

Falls ·Chur

ch Vir

ginia 220

41

File

: A20

0 068

51

9

H

ouston,

TX

In

re: A R

LEY M

A X DO

S SA N

TO S

IN

REM O

V A L P

RO CEE

D IN G

S

A PP

EA L

Da

te:

ON

BEH A L

F OF R

ESPO

N D EN

T: He

lly Saa

dzoi, E

squire

A

PPLIC

ATION

: Reo

pening

t~ A

Y

2 16

The

resp on

dent ha

s appea

led fr o

m th e

Immigr

ation Ju

dge s

decisio

n o

f

Fe

bruary

9, 2016

, in

w hich the Im m igration Judg e denied the r espondent s m otion to reopen his in absenti a re m oval

proce

edings.

The

record

does n

ot con

tain a

respon

se fro m

th e

Depart

ment

of Hom

eland

Securi t

y. The

app ea

l will

be sust

ained,

proceed

ings re

opened

, and

the rec

ord re m

anded

for

fu

rther p

roceedi

ngs.

U

pon ou

r de no

vo rev

iew, we

con cl

ude tha

t reope

ning w a

s w arr

anted in

this c

ase. 8

C.F.R.

§§

100

3.l(d)(

3)(i), (

ii). W

e are n

ot pers

uaded

o

f

any

error

o

f

fa ct o

r law

in the I

mmigra

tion

Jud

ge s d

ecision.

H ow

ever,

on bal

ance, w

e con

clude

that th

e cum

ulative

eviden

ce and

argume

nts in t

his par

ticula r

case ar

e suffi c

ient to

mee t t

he resp

onden

t s burd

en for

reopen

ing.

There f

ore, we

will en

ter the

follo w

ing ord

ers.

ORDER: The respondent s a ppeal is sust ained.

FUR

TH ER

O RD E

R: The

m ot io

n to reo

pen is g

ranted.

FU

RTH E

R ORD

ER:

The r

ecord

is rem

anded

to the

Im m ig

ration

Judge

for fu

rther

pro ce

edings

consis t

ent w it

h the fo

regoin g

opin io

n an d f

or the e

ntry

o

f

a new

decis io

n.

R TH

E BOA

RD




U NITE

D S TA

TES D

EP A R T

M EN T

OF JU

STICE

EXEC

UTIV

E OFFI

CE FO

R IM M

IG R A T

IO N R

EVIEW

IMMIG

RATI

ON

CO

URT

HOUS

TON, T

EXAS

IN T H E MA TTER OF:

AR

LEY M

A X DO

S SAN

TOS,

RESPO

ND EN

T

)

)

)

)

)

FILE

N O. A2

00-06

8-5I9

O R

D E R D

E N Y I

N G R E

SP O N D

ENT'S

M O T

IO N

T

O

R E O P

EN

Ca

m e on

for c

onsider

ation t

he Res

ponden

t's Mo

tion to

Reop

en. T

he Cou

rt, aft

er

consid

ering th

e Moti

on, and

despit

e the G

overnm

ent 's l

ack

o

f

a respo

nse, en

ters th

e follow

ing

order D

ENYI

N G the

motion

.

Respo

ndent c

la ims in

his M

otion to

Reope

n that t

his cas

e shoul

d be re

opened

becaus

e:

I)

h

e did n

ot recei

ve notic

e

o

f his

master

calend

ar heari

ng on D

ecemb

er 5, 20

05, at l

east in

part due

to

th e

action

s

o

f

an Ital

ia n m a

n hire

d by

R espon

dent 's

father

w ho w

as sup

posed

to hel

p

Re

sp onden

t; 2)

Respon

dent s

peaks

Portuge

se and

not

Spanis

h, the

langua

ge use

d w he

n

Respondent was detained; and 3) the court can reopen

if

th ere is new

law

or intervening

circu

m stanc

es that m

ight c

hange t

he resu

lt in the

case.

Addit

ionally

, althou

gh not

mentio

ned in

th e

Motio

n to Re

open, th

e Cour

t has co

nsidere

d whet

her it sh

ould e

xercise

its sua

sponte

authori

ty

in

Respo

ndent's

favor.

Respo

ndent w

as issu

ed an

N

TA

da

te d Aug

ust 24,

2005.

Respo

ndent r

eceived

and si

gned

f

or the

N TA o

n that

same

date.

R espo

ndent 's

father

indica

tes in

his aff

idavit

th at up

on

Respo

ndent '

s releas

e the a

ddress of an

Italian

m an w

as pro

vided f

or rece

iv ing f

uture p

apers.

Alth

ough it

is not ex

plicitly

stated

, it appe

ars like

ly that

th e Ital

ia n man

was g

iv en all

of

he p

apers,

in c

luding

the NT

A.



With regard to Respondent's first argument, i.e. that he never received notice, the Court

finds that Respondent did receive notice. To the extent Respondent's father's affidavit says My

son never received any notice or anything about court, the Court finds that the signature on the

NTA indicates that Respondent did receive that document. With regard to notice of the

December 5, 2005 hearing, the Court's file contains the Notice of Hearing sent to the address

provided by Respondent, albeit perhaps at the direction of the Italian man. Respondent does not

deny that the Court had and used the address provided for Respondent - Respondent only claims

that it was not his own address, but that it belonged to the Italian man. Nevertheless, it was the

address (apparently) provided by the Italian man, who was known by Respondent to be acting as

Respondent's agent. The failure

of

the document to make it to Respondent after arriving at the

Italian man's address is due to the internal workings of the address provided by Respondent's

agent, which is not a sufficient basis to reopen. Ojeda-Calderon v. Holder, 726 F.3d 669 (5th Cir.

2013); Matter ofG-Y-R-. 23

I.

& N. Dec. 181, 189 (BIA 2001); In re M-D-. 231. & N. Dec. 540,

54 7 (BIA 2002).

Case law broadly recognizes that failure to notify the Court of a correct address, such as

through a change of address, generally bars a challenge. Haider v. Gonzales, 438 F.3d 902,

906-08 8th Cir. 2006); Sousa v. Ashcroft, 393 F.3d 271 1st Cir. 2005). At least one circuit has

expressly upheld the BIA s reasoning that failure to provide a correct address results in

constructive notice. Maghradze

v.

Gonzales, 462 F.3d 150, 153-55 (2d Cir. 2006). Reopening

in

this case therefore is not warranted on the first ground raised by Respondent. More

specifically, Respondent was required to provide an address at which the alien may be contacted

respecting proceedings, pursuant to INA .Section 239(a)(l )(F). Dominguez

v.

U.S. Att'y Gen.,

284 F.3d 1258, 1259

11th

Cir. 2002)(aliens bears affirmative responsibility to keep agency

-2-





Given this duty to provide a valid address, notice to the alien at the most recent address

provided by the alien is sufficient notice, justifying an in abstentia removal. Id. at 1260.

Alternatively, having failed to provide an address pursuant to INA Section 239(a)(1 )(F), no

written notice shall be required. INA Section 240(b)(5)(8).

Respondent's second argument, that he speaks Portugese and not Spanish, initially seems

viable. Advisals regarding the need to appear at a time and place to be designated were provided

on August 24, 2005 in Spanish, not Portugese. Nevertheless, the argument fails for two primary

reasons. For one thing, the evidence in the file suggests that Respondent does indeed speak at

least some Spanish, contrary to the claim in his Motion that he has never spoken English or

Spanish. This claim

is

contradicted by the I-213,which indicates that Respondent spoke

Spanish, albeit broken Spanish, when asked his citizenship. The 1-213 further indicates that

Respondent stated he could speak and understand Spanish. Admittedly, this is a fact question

and difficult to resolve with confidence based on the cwTent record, but the Court tends to find the

statements in the 1 213 more credible given that the person executing that document had no

incentive

to

fabricate.

The second reason Respondent's language argument fails, however, is not based on

disputed facts and thus even stronger. Even assuming for the sake

o argument that no one

explained to Respondent that he had to appear in court, and assuming he did not understand the

papers he received, case law clearly recognizes that personal service in English, even to a

non-English-speaker, typically satisfies due process because it puts the alien on notice that further

inquiry is needed, leaving the alien to seek help from someone who can overcome the language

barrier. Singh

v.

Holder, 749 F.3d 622 Cir. 2014). See also Ojeda-Calderon

v.

Holder. 726

F.3d 669,675 (5th Cir.2013) (collecting cases). The evidence shows that Respondent entered the

--4-



. .

( j

' 1

U.S. on Augus

t 24, 2005. H

e did not file h

is motion to re

open until Jan

. 20, 2016 - m

ore than

1

year

s later. Respo

ndent was 7

years old at the

time he came

into the U.S., a

nd thus an adu

lt soon

thereafter

. Given that

Respondent k

new that he h

ad received pa

pers, he was

under a duty

to

investiga

te what those

papers said. R

espondent has

not shown ci

rcumstances ex

plaining why

he

did

not (or could n

ot) investigate

and learn abou

t the papers tha

t he had receiv

ed. The fact

that the

Ital

ian man did no

t cooperate w

ith him is not

shown t

o

have

prevented Re

spondent or h

is father

him from car

rying out such

an investigati

on.

Resp

ondent's third

basis for reo

pening also fa

ils. Responde

nt notes that

the court can

reopen

if

there is new law or intervening circumstances that might change the result in the case.

The la

w in th is regard

is a bit more

demanding tha

n this, but Res

pondent does

not cite to any

new

law or inter

vening/change

d circumstanc

es, so there

is no need to con

sider this argu

ment in more

de

tail.

The Court ha

s also conside

red, on its ow

n initiative,

the circumstan

ces described

by

Respondent

and whether

they constitu

te an indepen

dent ground

for reopening

, in and

of

t

hemselves. M

ore specifica

lly, the Cour

t has conside

red whether

Respondent h

as shown

exception

al circumstanc

es. The mo

st egregious

of Respondent

's circumstanc

es included the

purpo

rted attempted

extortion b

y the Italian

man and that

m an's related

refusal to pr

ovide

in formatio

n unless Resp

ondent paid th

e required ext

ortion fee. In

this regard, w

hile the Cour

t

initia

lly notes that

it is not clear

whether the de

mands

of

the

Italian man co

nstitute extor

tion,

given that he had no real leverage over Respondent, or whether his dem ands are more properly

thought

of

as

simply the co

nditions under

which he wou

ld agree to hel

p, i.e. his fee,

what does

se e

m clear is that

Respondent w

as not facing e

xceptional cir

cumstances w

hich justify hi

s failure

to

appear in his c

ase or to file a

n earlier motio

n to reopen.

The reason Re

spondent's fat

her says

5



.

J

they worke

d th rough the

It alian man i

s th at Respon

dent's father

is here in the

U.S. illegally.

How

ev er, that is

true of many

parents here i

llegally, and d

oes not mean

ip so facto th

at any

demand

s made on tho

se parents rise

to the level

of extortion, m

uch less that s

am e constitute

s an

excu

se for failing to

follow the ins

tructions in the

N TA and/or a

n excuse for n

ot investigating

what

pap

ers may have

been provided

to one 's son.

In other wor

ds, Responden

t and his fathe

r could

h

ave disassocia

ted from the I

talian man at

an y point, and

the only rep

ercussion was

that they

wou

ld have to hand

le things them

selves - j us t a

s do many oth

er im migrant f

am ilies. This

is not

an

ex ceptional ci

rcum stance jus

tify ing reopen

ing.

Somewhat relatedly, this Court also has considered reopening under its sua sponte

au t

hority and disc

retion. This

Court has disc

retion under it

s sua spont

e authority to re

open any

case

in which the C

ourt has made

a decision, unl

ess jurisdiction

in the case is

vested in the B

oard.

8 C.F.R.

§ 1003.23(b)(l

). ua spon

te authority is to

be invoked spa

ringly, not as

a ge neral reme

dy

f

or

n

y hardship

s c reated by en

forcement of

he time and nu

m ber limits in

the motions re

gulations,

but as an

extraordinary

re medy reserv

ed for truly exc

eptional situat

ions. Matter

ofG-D-, 22 I&

N

Dec. 1132,

1133-34 (BIA

1999). ua

sp ?nt

e

authority

is to be used

in unique situ

ations where it

w

ould serve th

e in terest of ju

stice. Matter

of X-G-W-, 2

2 I& N Dec. 7

1, 73 (BIA 19

98). It is

Res

pondent's burd

en to persuad

e the Court tha

t the circumst

ances are truly

e xceptional b

efore it

w ll interve

ne. Matter

of Beckford, 22

I& N Dec. 121

6, 1218 (BIA

2000); G-D-, 2

2 I& N Dec. at

1134. The C

ourt finds tha

t th e circums

tances present

ed by Respon

dent are not

sufficiently

unique o r extraordinary to grant the m otion to reopen sua sponte. In stead, the circumstances a re

the result

o

f a failure to

investigate th

e papers receiv

ed, and Respo

ndent should

not be rewarde

d

for th

at failure. Th

ere is a strong

public interes

t both in brin

gin g litigation

to a prompt f

inish,

IN S

v Doherty, 50

2 U.S. 314,3 2

3 (1 992), and

in prompt exe

cution of remo

val orders. N

ken v

6



·

Hold

er, 129

S.Ct. 1

749, 1

762 (2 0

09); Pe

na-M u

riel

v.

Gonzal

ez, 489

F.3d 4

38, 44

2-43 1st

Cir.

20

07). S

ee also

Matter

of

Bar

ocio,

1

9

l N D

ec. 25

5 (BIA

l 985)(

person

who fa

iled to

re port f

or

depo

rtation

d oes n

ot merit

afavo

rable ex

er cise of

disc

retion).

Th

is is w

hy re o

pen in g

is

not

warra

nted w

her e th

ere ha

s been

a lack

of

di

ligence

.

I

tu rriba

rria v.

IN S,

321

F.3d

889, 8

94 (9th

Cir.2

003)(de

ad line

can be

equita

bly toll

ed whe

n a

petition

er

is

p

revente

d from

filing b

ecause

of

dec

ep tion,

fraud,

or error

, as lon

g as th

e petiti

oner

acts

with d

iligence

). See

also A

vagya

n v. Ho

lder, 6

46 F.3d

672,

674 {9t

h Cir.2

01 l)(eq

uit able

toll

in g of t

he filin

g deadl

in e

is

a

vai labl

e where

petitio

ner esta

blishes

that sh

e was

pre vent

ed from

filing because

of

dece ption, fraud or error,

nd

acted with due dilig ence in discovering such

circums

tances)

. Peri

ods of

unac c

ounted-

fo r del

ay reve

al a la

ck of

diligen

ce . M

ahm oo

d

v.

Gonza

le s, 427

F 3d 2

48, 252

(3d C

ir. 2005

).

W H

EREF

ORE, p

re mises

consid

er ed, i

t is ORD

ERED

that R

espond

ent's M

otion to

Re

op en is

D ENIE

D.

cc:

all par

ties

Im

m igrati

on Judg

e

Chris A

Brisa

ck

Date

: Feb

ru ary

9

2016

7

Documents

Arley Max Dos Santos, A200 068 519 (BIA May 27, 2016)