Mario Bladimir Ayala Monzon, A206 409 571 (BIA Feb. 13, 2017)
Mario Bladimir Ayala Monzon, A206 409 571 (BIA Feb. 13, 2017)
Mario Bladimir Ayala Monzon, A206 409 571 (BIA Feb. 13, 2017)
Department of Justice
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
borutL Ca.AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Mann, Ana
Adkins-Blanch, Charles K.
Userteam: Docket
Cite as: Mario Bladimir Ayala Monzon, A206 409 571 (BIA Feb. 13, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
APPEAL
APPLICATION: Reopening
The respondent, a native and citizen of El Salvador, was ordered removed in absentia on
October 6, 2015. On October 26, 2015, he filed a motion to reopen proceedings, which the
Immigration Judge denied on February 9, 2016. The respondent filed a timely appeal of that
decision. The Department of Homeland Security has not submitted a response. The
respondent's appeal will be sustained, the proceedings will be reopened, and the record will be
remanded.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the clearly erroneous standard. 8 C.F.R. 1003.l(d)(3)(i). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from
decisions oflmmigration Judges de novo. 8 C.F.R. 1003.l(d)(3)(ii).
The respondent contends that he did not receive notice of his October 6, 2015, hearing. The
affidavit submitted with his motion stated that he received neither the Notice to Appear ("NTA")
nor the Notice of Hearing ("NOH") (Respondent's Motion at 7). As the respondent was
personally served with the NTA on August 2, 2014, that assertion is not supported by the record
(I.J. at 1; Exh. 1).
Nevertheless, the record supports the respondent's claim that he did not receive the
subsequently-issued NOH. See Sembiring v. Gonzales, 499 F.3d 981, 987-90 (9th Cir. 2007)
(discussing the weaker presumption of delivery of the hearing notice sent through regular mail,
and holding that an unswom written statement of non-receipt of the notice may be sufficient to
rebut the presumption of delivery). Although the NOH was apparently sent to the most recent
address provided by the respondent and where he continues to reside, the record reflects that it
was returned to the court for unknown reasons, as the original NOH and its accompanying
envelope are in the record of proceedings. The respondent therefore cannot be charged with
receiving notice of his hearing. Accordingly, the following order will be entered.
Cite as: Mario Bladimir Ayala Monzon, A206 409 571 (BIA Feb. 13, 2017)
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A206 409 571
ORDER: The appeal is sustained, the in absentia order of removal is rescinded, the
proceedings are reopened, and the record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion.
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Cite as: Mario Bladimir Ayala Monzon, A206 409 571 (BIA Feb. 13, 2017)
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE-FOR IMMIGRATION REVIEW
IMMIGRATION COURT
606 SOUTH OLIVE ST.
LOS ANGELES, CA 90014
IMMIGRATION COURT
606 SOUTH OLIVE ST.
LOS ANGELES, CA 90014
OTHER:
IMMIGRATION COURT FF
CC: PARK, JEANNETTE, ESQ.
606 SO. OLIVE ST., 8TH FLOOR
LOS ANGELES, CA, 900140000
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2 PROPOSED ORDER
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4 United States Department of Justice
5 Executive Office for Immigration Review
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