Immigration Appeals Decisions

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Cara Knapp
Assistant Chief Counsel

The respondent, a native and citizen of Trinidad and Tobago, has appealed from the Immigration Judge’s decision dated July 30, 2008. In that decision, the Immigration Judge found the respondent ineligible for relief other than voluntary departure pursuant to section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b). The appeal will be dismissed.

The respondent sought adjustment of status based on his relationship with his fiancee. See section 245(a) of the Act, 8 U.S.C. § 1255(a). However, at the time of the hearing below, the respondent’s fiancee was still seeking a divorce from her husband (I.J. at 4). On appeal, the respondent does not indicate that he and his fiancee have since married. Thus, we agree with the Immigration Judge that the respondent was not eligible for adjustment of status. To the extent that the respondent, on appeal, raises issues related to asylum, we note that the respondent did not request such relief below. When asked if he had any fear of returning to Trinidad and Tobago, the respondent stated that “[t]he only fear is … that I’ve been in the United States since I was 17.” (Tr. at 19). Further, the respondent has not submitted an application for such relief accompanied by all supporting documentation. See 8 C.F.R. § 1003.2(c)(1). In addition, the respondent has not filed for asylum within 1 year of entry and has not established that he falls within one of the exceptions to the 1-year filing requirement. See section 208(a)(2)(B) of the Act, 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2). Moreover, we do not find that the respondent has established a prima facie case of eligibility for the relief sought. See INS v. Abudu, 485 U.S. 94 (1988); see also 8 C.F.R. § 1208.13.

Accordingly, the following orders will be entered.

ORDER: The appeal is dismissed.

FURTHER ORDER: Pursuant to the Immigration Judge’s order and conditioned upon compliance with conditions set forth by the Immigration Judge and the statute, the respondent is permitted to voluntarily depart the United States, without expense to the Government, within 60 days from the date of this order or any extension beyond that time as may be granted by the Department of Homeland Security (“DHS”). See section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b); see also 8 C.F.R. §§ 1240.26(c), (f). In the event the respondent fails to voluntarily depart the United States, the respondent shall be removed as provided in the Immigration Judge’s order.

NOTICE: If the respondent fails to voluntarily depart the United States within the time period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty as provided by the regulations and the statute and shall be ineligible for a period of 10 years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Act. See section 240B(d) of the Act.

WARNING: If the respondent files a motion to reopen or reconsider prior to the expiration of the voluntary departure period set forth above, the grant of voluntary departure is automatically terminated; the period allowed for voluntary departure is not stayed, tolled, or extended. If the grant of voluntary departure is automatically terminated upon the filing of a motion, the penalties for failure to depart under section 240B(d) of the Act shall not apply. See Voluntary Departure: Effect of a Motion To Reopen or Reconsider or a Petition for Review, 73 Fed. Reg. 76,927, 937-38 (Dec. 18, 2008) (to be codified at 8 C.F.R. §§ 1240.26(c)(3)(iii), (e)(1)).

WARNING: If, prior to departing the United States, the respondent files any judicial challenge to this administratively final order, such as a petition for review pursuant to section 242 of the Act, 8 U.S.C. § 1252, the grant of voluntary departure is automatically terminated, and the alternate order of removal shall immediately take effect. However, if the respondent files a petition for review and then departs the United States within 30 days of such filing, the respondent will not be deemed to have departed under an order of removal if the alien provides to the DHS such evidence of his or her departure that the Immigration and Customs Enforcement Field Office Director of the DHS may require and provides evidence DHS deems sufficient that he or she has remained outside of the United States. The penalties for failure to depart under section 240B(d) of the Act shall not apply to an alien who files a petition for review, notwithstanding any period of time that he or she remains in the United States while the petition for review is pending. See 73 Fed. Reg. At 76,938 (to be codified at 8 C.F.R. § 1240.26(i)).

David L. Neal
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Gerrie Zhang
Assistant Chief Counsel

Notice: Sec. 237(a)(1)(B), I&N Act [8 U.S.C. § 1227(a)(1)(B)] – In the United States in violation of law

The respondent, a native and citizen of Pakistan, appeals from the Immigration Judge’s March 26, 2008, decision finding she did not have jurisdiction to review his motion to reopen. During the pendency of his appeal, the respondent filed a motion to reopen directly with the Board. The respondent’s appeal will be dismissed and his motion to reopen will be denied.

As noted by the Immigration Judge, the respondent’s case was last before the Board on September 21, 2005. Therefore, the respondent was required to file his motion to reopen with the Board. See 8 C.F.R. § 1003.2(a). Consequently, the Immigration Judge properly found that she did not have jurisdiction over the merits of the motion. See 8 C.F.R. § 1003.23(b)(1).

The respondent’s motion to reopen is both untimely and numerically barred, as outlined in the regulations. See 8 C.F.R. § 1003.2(c). To be timely, the respondent’s motion would have been due on or before September 21, 2005. See id (imposing, in general, a 90-day deadline for motions to reopen). However, this motion to reopen was filed on February 19, 2008. Additionally, this is the respondent’s fifth request for reopening, and we have previously denied motions to reopen in the instant case filed by him through orders issued by the Board on October 11, 2005, April 23, 2007, July 24, 2007, and September 19, 2007. As a result, the respondent has exceeded the single motion to reopen limit imposed by regulation. See id.

In his motion, the respondent maintains that he received ineffective assistance of counsel from the attorney who initially represented him before the Immigration Court and the Board and an attorney who subsequently represented him before the Board in filing a motion to reopen based on the alleged ineffective assistance of his first attorney. In particular, he maintains that the first attorney erred in seeking a continuance on his behalf rather than asserting his eligibility for adjustment of status and in failing to completely advise him of his rights and responsibilities pursuant to the Immigration Judge’s grant of voluntary departure. The respondent argues that the second attorney failed to timely file a motion to reopen based on his claim of ineffective assistance.

Although the respondent has met the procedural requirement for ineffective assistance outlined in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), we find that he has not established that he was prejudiced by his prior counsels’ actions. See Matter of Assaad, 23 I&N Dec. 553 (BIA 2003); Matter of Lozada, supra, at 640; see also Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. 1993) (requiring the respondent to demonstrate “substantial prejudice” in order to establish a due process violation). The term “prejudice,” refers to actual prejudice. Matter of Assaad, supra. This requires a showing that it is likely that an alien would have prevailed had the negligent representation not occurred. Id.

As we noted in our July 24, 2007, decision, the respondent failed to demonstrate that he exercised due diligence in pursuing his ineffective assistance claim against his first attorney. Moreover, although he cites this attorney’s decision to seek voluntary departure on his behalf as legal error, the respondent’s dissatisfaction with his former counsel’s strategy in pursuing relief is not a ground for reopening based on ineffective assistance. See Matter of B-B-, 22 I&N Dec. 309, 310 (BIA 1998). Finally, the respondent fails to show prejudice as a result of his first attorney’s allegedly ineffective representation, as he was not eligible for relief when the administratively final order was entered.

The respondent alleges that his second attorney failed to act with due haste or diligence in pursuing his ineffective assistance claim against his prior counsel, but he has failed to demonstrate any resulting prejudice. He asserts that he is eligible to adjust status as an alien grandfathered under section 245(i) of the Immigration and Nationality Act. Specifically, he asserts that this eligibility arises from a labor certification filed on behalf of Nighat Sultana on April 30, 2001, and that Ms. Sultana is his mother. However, the respondent has not provided documentary evidence of his qualifying relationship with Ms. Sultana. As a result, the respondent has failed to provide prima facie evidence that he is a grandfathered alien, and thus, he has failed to demonstrate prejudice as a result of his second attorney’s alleged ineffective performance.

Accordingly, the following orders are entered.

ORDER: The respondent’s appeal is dismissed.

FURTHER ORDER: The respondent’s motion to reopen is denied.

Roger A. Pauley
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Jason Raphael
Associate Regional Counsel

The appeal is dismissed. We agree with the Field Office Director that the evidence submitted to the United States Citizenship and Immigration Services (CIS) by the petitioner was insufficient to establish that the petitioner’s prior marriage to Aurora Marcial was terminated.

On February 12, 2009, the ClS issued a notice requesting further evidence (RFE) to be submitted by March 13, 2009. In the notice, the ClS directed the petitioner to submit “an original divorce decree or termination of prior marriage between Arturo Acosta and Aurora Marcial.” As the Field Office Director correctly noted, the petitioner’s submission of a copy of an un-served summons filed on July 16, 1981, for a civil action between Arturo Acosta and Aurora Marcial Acosta in response to the RFE was insufficient to establish that the petitioner’s prior marriage was terminated.

The petitioner states on appeal that he had requested additional time to respond, which “seems to have been overlooked,” and he submits a divorce decree between himself and Aurora Marcial Acosta dated July 17, 1981. However, immigration regulations prohibit the granting of an extension of time to submit documentation in response to a request for evidence. See 8 C.F.R. § 103.2(b)(iv) (“Additional time to respond to a request for evidence … may not be granted.” Because this Board will not accept evidence offered for the first time on appeal, see Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988), we need not and do not comment on the sufficiency of the evidence offered on appeal.

The petitioner may, however, file a new visa petition on the beneficiary’s behalf that is supported by competent evidence that the beneficiary is entitled to the status sought under the immigration laws.

Ana L. Mann
FOR THE BOARD

FN1. Because the petitioner’s counsel failed to file a Form EOIR-27, Notice of Entry of Appearance before the Board of Immigration Appeals, we deem the petitioner to be pro se. The record reflects that counsel filed a Form G-28, which is used in proceedings before the United States Citizenship and Immigration Services. The record further reflects that the Board mailed the petitioner a notice of filing of the appeal on October 16, 2009, indicating that the Board will not recognize a Form G-28, and providing the petitioner’s attorney 15 days to file Form EOIR-27. A courtesy copy of the decision will be mailed to the petitioner’s attorney.

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

On June 15, 2009, the respondent, a native and citizen of Mexico, filed her fourth motion to reopen since we issued a final administrative order in this case on December 30, 2004.

Because this case arises within the jurisdiction of the United States Court of Appeals for the Ninth Circuit and the respondent presents an ineffective assistance of counsel claim, we will consider whether this case warrants equitable tolling of the time limits on motions to reopen. The Ninth Circuit has held that equitable tolling will be applied where the alien is prevented from timely filing a motion by deception, fraud, or error so long as the alien acted with due diligence in discovering the deception, fraud, or error. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003).

The respondent’s cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b), was denied on September 19, 2003, for lack of the requisite 10-year period of continuous physical presence. The respondent now claims that Mario Lemus, who was posing as a lawyer, told her to change all the dates that she had been in the United States. See Motion at 2. We find equitable tolling is not warranted here since the respondent has failed to demonstrate that she exercised due diligence in pursuing her case. She has known for years that she was misadvised by Mr. Lemus. She failed to explain her failure to raise this allegation earlier. The respondent claims that she informed the Department of Homeland Security (DHS) of Mr. Lemus’ actions. See Respondent’s Motion at 3. Yet, she provides no documentation establishing that she did so.

The respondent also asks us to reopen these proceedings on our own motion pursuant to 8 C.F.R. § 1003.2(a). See Matter of J-J-, 21 I&N Dec. 976 (BIA 1997) (holding that the Board’s power to reopen or reconsider cases sua sponte is limited to exceptional circumstances and is not meant to cure filing defects or circumvent the regulations, where enforcing them might result in hardship). The respondent asserts that her children, one of whom is a 22-year-old United States citizen, will suffer exceptional and extremely unusual hardship if they are forced to accompany her to Mexico. See Respondent’s Motion at 4-8. The respondent has not offered any documentation in support of her motion. See generally Matter of Coelho, 20 I&N Dec. 464, 472 (BIA 1992) (motion to reopen may be denied based upon the failure to establish a prima facie case for the relief sought). Nor has she established her prima facie eligibility for any form of relief from removal. [FN1] The respondent has failed to present exceptional circumstances which would support sua sponte reopening under the standards set forth in Matter of J-J-, supra. Based on the foregoing, the respondent’s motion is denied as time and number barred.

ORDER: The motion to reopen is denied.

David B. Holmes
FOR THE BOARD

FN1. The respondent’s 22-year-old United States citizen daughter can file an immigrant visa petition on the respondent’s behalf pursuant to section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i) (immediate relatives means spouses, parents and children of United States citizens).

THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Joseph C. Hohenstein, Esquire

Jason Raphael
Associate Regional Counsel

The petitioner has appealed the February 25, 2009, decision of the Field Office Director (hereinafter “Director”) denying her petition to accord the beneficiary status as the spouse of a United States citizen on the ground that the beneficiary was barred from receiving immigration benefits pursuant to section 204(c) of the Immigration and Nationality Act because his prior marriage was fraudulent. The record will be remanded.

On appeal the petitioner contends that the Director’s decision does not represent an independent review of prior decisions, the Director relied on evidence without providing the petitioner with an opportunity to review such evidence, and the Director failed to consider evidence submitted by the petitioner demonstrating the validity of the beneficiary’s divorce from his first spouse.

A finding that the beneficiary’s prior marriage was fraudulent must be based on evidence that is documented in the alien’s file. Section 204(c)(2) of the Act; Matter of Kahy, 19 I&N Dec. 803, 807 n.3 (BIA 1990). In making a finding of fraud within the meaning of section 204(c), the Director should not give conclusive effect to determinations made in prior proceedings. Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990). Rather, the Director should reach an independent conclusion based on the evidence before her, although any relevant evidence may be relied upon, including evidence having its origin in prior Service proceedings involving the beneficiary or in court proceedings involving the prior marriage. Id.

We find that a remand is warranted in this case. The Director based her decision, in part, on a finding that the results of an overseas investigation verified that the divorce decree presented as evidence of the legal termination of the beneficiary’s first marriage was fraudulent. The petitioner contends on appeal that previously she submitted evidence to demonstrate the validity of the beneficiary’s divorce from his first spouse. The record contains a letter from the petitioner’s representative dated July 25, 2008, stating that the petitioner was submitting evidence of the validity of the divorce between the beneficiary and his prior spouse, Rose Dahn. Based on the Director’s decision, it does not appear that the petitioner’s additional evidence was considered prior to issuance of the notice of intent to deny, dated December 1, 2008. Moreover, the petitioner asserts that she was not provided with an opportunity to review evidence from the beneficiary’s prior I-751 interview, pursuant to 8 C.F.R. § 103.2(b)(16).

Consequently, the Director has not established that the evidence of record is substantial and probative to support a finding that the petition is barred under section 204(c) of the Act. See Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990). We find that a remand is warranted in this case in order to allow the Director to render a decision that is adequate for our review. Accordingly, the record is remanded to the Director for further proceedings consistent with the foregoing opinion and the entry of a new decision.

ORDER: The record is remanded to the Director for further consideration of the visa petition consistent with the foregoing opinion and for the entry of a new decision.

Frederick D. Hess
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Stephen K. Tills, Esquire

Steven J. Connelly
Assistant Chief Counsel

Notice: Sec. 212(a)(6)(C)(i), I&N Act [8 U.S.C. § 1182(a)(6)(C)(i)] – Fraud or willful misrepresentation of a material fact

Sec. 212(a)(6)(C)(ii), I&N Act [8 U.S.C. § 1182(a)(6)(C)(ii)] – False claim of United States citizenship

Sec. 212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. § 1182(a)(7)(A)(i)(I)] – Immigrant – no valid immigrant visa or entry document

The respondent appeals from an Immigration Judge’s decision dated April 8, 2008, finding that she is inadmissible and removable from the United States to Jamaica on the charges as set forth and contained in the Notice to Appear. The appeal will be dismissed.

On appeal the respondent challenges the Immigration Judge’s decision finding the respondent inadmissible under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii). The respondent contends that the Immigration Judge erred in finding that she made a false claim to United States citizenship because she made no oral or written statement as to her citizenship upon inspection at a point of entry. She also asserts that absent a finding of a false claim to United States citizenship, she is eligible for a waiver under section 212(i) of the Act, 8 U.S.C. § 1182(i), based on extreme hardship to her United States citizen spouse and child.

It is undisputed that on or about April 6, 2002, the respondent presented a U.S. citizen passport, containing another individual’s name and photograph, when she sought admission to the United States. Tr. at 41-44. The respondent testified that she purchased the passport knowing she would use it to come to the United States, and knew that she was doing something wrong in impersonating somebody else. Tr. at 32, 41-42. She also testified that once she arrived at the airport, she went to the line for “U.S. citizens” and knew that buying a U.S. passport was an attempt to get around the U.S. immigration laws. Tr. at 43-44. The Immigration Judge also considered the respondent’s Affidavit, dated September 22, 2006, submitted by the Government. Exh. 2. The Immigration Judge concluded that the respondent falsely claimed to be a United States citizen based on the totality of her testimony and the documentary evidence of record. He further determined that the respondent had actual knowledge of having a false U.S. passport, had actual knowledge that she was impersonating a person whose name and picture showed on a U.S. citizen passport, and had consciously got into a line only for U.S. citizens. He found that she is inadmissible into the United States and is removable from the United States based on the charges contained in the Notice to Appear.

Turning to the merits of the appeal, we agree with the Immigration Judge’s determination that the respondent made a false claim to United States citizenship as defined in section 212(a)(6)(C)(ii) of the Act, which renders the respondent inadmissible and thus statutorily ineligible for adjustment. We also agree with the Immigration Judge’s determination that the respondent also is inadmissible pursuant to sections 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I) of the Act. See 8 C.F.R. § 1003.1 (d)(3)(ii) (stating that the Board reviews questions of law de novo). Nor do we find clear error in the factual findings leading up to that determination. See § 1003.1(d)(3)(i) (mandating that the Board “will accept the determination of factual issues by an immigration judge … unless the determination is clearly erroneous”).

The respondent on appeal contends that her act of presenting a United States passport to an immigration officer does not constitute an oral or written representation of United States citizenship as she asserts is required by section 212(a)(6)(C)(ii) of the Act. Contrary to the respondent’s assertion on appeal, the act of presenting the United States passport qualifies as a representation that the respondent was the individual whose name appeared in that passport, a United States citizen. See, e.g., Matter of Barcenas-Barrera, 25 I&N Dec. 40 (BIA 2009) (holding that a statement on a passport application is sufficient evidence demonstrating a claim of citizenship). Under the circumstances, we affirm the Immigration Judge’s decision finding that the respondent made a false claim to United States citizenship as defined in section 212(a)(6)(C)(ii) of the Act, which renders the respondent inadmissible. We also affirm the Immigration Judge’s decision finding that the respondent is inadmissible pursuant to sections 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I) of the Act. Accordingly, the appeal is dismissed.

ORDER: The appeal is dismissed.

Linda S. Wendtland
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Toinette M. Mitchell
Office of the Chief Counsel

In a decision dated July 24, 2009, the Field Office Director (“Director”) of the Department of Homeland Security (“DHS”) denied the visa petition filed by the United States citizen petitioner for the beneficiary as her husband. The petitioner appealed from that decision. The record will be remanded.

The record reflects that the petitioner and the beneficiary were married on May 30, 2008, and that the visa petition was filed on July 27, 2008.

In denying the petition in the July 2009 decision, the Director determined that the petitioner failed to respond adequately to the request for additional evidence set forth in a notice of intent to deny (“NOID”) dated May 13, 2009, and had not demonstrated a bona fide marital relationship with the beneficiary. In visa petition proceedings, the petitioner has the burden of establishing eligibility for the benefit sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove the required elements by a preponderance of the evidence. See Matter of Pazandeh, 19 I&N Dec. 884 (BIA 1989). Where the bona fides of a marriage are challenged, the petitioner must present documentary or testimonial evidence to show that the marriage was not entered into for the primary purpose of evading the immigration laws. See Matter of Phillis, 15 I&N Dec. 385 (BIA 1975).

The Director indicated that the NOID was issued following interviews conducted by the DHS with the parties on May 6, 2009. The NOID states that the “shared life documents” presented by the petitioner at the interviews “appear to lack credibility;” however, the NOID mentions only one specific document, a photocopy of a lease agreement with an effective date of July 1, 2008. The NOID notes that the lease agreement has the typewritten name of the beneficiary and another individual as residents but the handwritten name and initials of the petitioner. In addition, the NOID notes that the petitioner told the DHS interviewing officer that she did not have the original of the lease agreement with her on the interview date. The NOID further refers to a “contradiction” between information provided at the interviews and that provided on the petitioner’s Form G-325A biographic information sheet, since the parties claimed at the interviews that they moved to an apartment at 746 Garden Walk Boulevard in College Park, Georgia in June 2008, but the Form G-325A shows that the petitioner lived at 1404 Arthur Langford Place in Atlanta from February 2007 until July 18, 2008.

The May 13, 2009, NOID asked the petitioner to submit additional evidence within 33 days. The notice specified that such evidence could include, but was not limited to, proof that the beneficiary had been listed as the petitioner’s spouse on insurance policies, property leases, income tax forms, and testimony or other evidence regarding courtship, wedding ceremony, and shared residence and experiences, consistent with Matter of Phillis, supra. In the July 2009 decision, the Director observed that the petitioner’s response to the notice was received by the DHS on June 15, 2009. As the Director discussed, such response included affidavits from the parties and two other individuals; a photocopy of a lease agreement for the period from July 1, 2008, until June 30, 2009, listing the petitioner, beneficiary, and another individual as occupants and bearing the petitioner’s typewritten name; and joint utility bills dated between August 2008 and June 2009. In assessing the evidence, the Director accorded diminished probative value to bills dated subsequent to the NOID.

We find that a remand is necessary in this case. The NOID was issued in light of a discrepancy of one month concerning the date on which the petitioner moved to the parties’ latest claimed joint marital residence, when information given at her interview was compared with information listed on her Form G-325A. These variant dates possibly can be reconciled. For example, it is feasible that the petitioner may have been in the process of moving and transferring her belongings to the newer residence over a period of a few weeks. Further, the NOID references only one document brought by the parties to the interviews, the photocopied lease agreement. On appeal, the petitioner asserts that she submitted “joint bills” at the interviews, that such documents predated the NOID, and that she then had only limited bills in her name due to earlier credit problems. The May 2009 NOID and the July 2009 Director’s decision do not discuss consistent interview answers and information that the parties may have provided. The petitioner is entitled to have her explanations and evidence evaluated fully. The documentary evidence, while probative, is not voluminous, and the petitioner should be given the opportunity to submit further evidence. Such evidence may include joint financial documents, affidavits, and testimony spanning all the years of the parties’ marriage. See Lutwak v. United States, 344 U.S. 604 (1953); Matter of Phillis, supra; see also 8 C.F.R. § 204.2 (2009). The parties had been married less than a year as of the May 2009 dates of the interviews and the NOID. The couple now will have been married more than six months longer and will have had a somewhat more substantial period within which to accumulate evidence, although their marriage still is of relatively short duration. On remand, both the petitioner and the DHS may submit any and all available relevant evidence.

ORDER: The record is remanded to the DHS for further consideration and for the issuance of a new decision, consistent with this opinion.

Frederick D. Hess
FOR THE BOARD

FN1. The record does not contain a properly completed Form EOIR-27 Notice of Entry of Appearance As Attorney for the petitioner from attorney Patricia Camuzzi Luber, who submitted appellate materials on the petitioner’s behalf and an incorrect Form EOIR-27 in the beneficiary’s name. Thus, we decline to recognize counsel as the petitioner’s attorney of record. However, as a courtesy, we are sending a copy of this opinion to: Patricia Camuzzi Luber, Esquire, 44 Broad Street, N.W., Suite 700, Atlanta, Georgia 30303

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Jose Quintero, Esquire

In a decision dated September 29, 2008, the Immigration Judge denied the respondent’s motion to reconsider the denial of the motion to reopen his removal proceedings, which had been conducted in absentia under section 240(b)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(A). The respondent filed a timely appeal from that decision. The appeal will be sustained.

Under 8 C.F.R. § 1003.1(d)(3), the Board defers to the factual findings of an Immigration Judge, unless they are clearly erroneous, but it retains independent judgment and discretion, subject to applicable governing standards, regarding pure questions of law and the application of a particular standard of law to those facts. Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).

Pursuant to section 240(b)(5)(C) of the Act, 8 U.S.C. § 1229a(b)(5)(C), an in absentia removal order may be rescinded only (1) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances, or (2) upon a motion to reopen filed at any time if the alien demonstrates that he or she did not receive notice of the hearing in accordance with sections 239(a)(1) or (2) of the Act, or that the alien was in Federal or State custody and did not appear through no fault of the alien. Sections 240(b)(5)(C)(i) and (ii) of the Act; see also Matter of Guzman, 22 I&N Dec. 722, 723 (BIA 1999). The term “exceptional circumstances” is defined by the Act as “exceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien.” Section 240(e)(1) of the Act.

The Immigration Judge found that the respondent failed to establish exceptional circumstances for his failure to appear at his hearing. See sections 240(b)(5)(C), (e)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C), (e)(1). The respondent asserts that he could not attend his March 12, 2008, hearing because he was hospitalized for his lung cancer during that time. The respondent provided evidence that he was admitted to the hospital on March 5, 2008, and discharged on March 12, 2008, at 9:50 p.m. Contrary to the Immigration Judge’s finding, we do not find that the hospital document showed an admission date of March 15. Although the second page of the hospital document references a March 13, 2008, date regarding discharge, the doctor’s note confirms the March 5 admission and March 12 discharge. Consequently, we find that the respondent established that “exceptional circumstances” caused his failure to appear for his hearing, and it is appropriate to reopen these proceedings. Accordingly, we will sustain the appeal, rescind the in absentia order, reopen the proceedings, and remand the record to the Immigration Judge for further proceedings consistent with this decision.

ORDER: The appeal is sustained and the in absentia order of removal is rescinded.

FURTHER ORDER: The proceedings are reopened and the record is remanded to the Immigration Judge for further proceedings consistent with this decision.

Linda S. Wendtland
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

A Notice of Appeal (Form EOIR-26) must be filed within 30 calendar days of an Immigration Judge’s oral decision or the mailing of a written decision unless the last day falls on a weekend or legal holiday, in which case the appeal must be received no later than the next working day. 8 C.F.R. § 1003.38(b), (c). In the instant case, the Immigration Judge’s decision was rendered orally on September 29, 2009. The appeal was accordingly due on or before October 29, 2009. The record reflects that the Notice of Appeal was submitted to the Board of Immigration Appeals on October 29, 2009, but was rejected due to filing defects. Such defects were remedied, and the appeal was again filed with the Board on November 23, 2009. However, we find the appeal is untimely as the record demonstrates that the appeal was not perfected within the requisite 30-day period. The Immigration Judge’s decision is accordingly now final, and the record will be returned to the Immigration Court without further action. See 8 C.F.R. §§ 1003.3(a), 1003.38, 1003.39, 1240.14 and 1240.15.

We note that because we are dismissing the appeal for lack of jurisdiction, either party wishing to file a motion in this case should follow the following guidelines: If you wish to file a motion to reconsider challenging the finding that the appeal was untimely, you must file your motion with the Board. However, if you are challenging any other finding or seek to reopen your case, you must file your motion with the Immigration Court. See Matter of Mladineo, 14 I&N Dec. 591 (BIA 1974); Matter of Lopez, 22 I&N Dec. 16 (BIA 1998). You should also keep in mind that there are strict time and number limits on motions to reconsider and motions to reopen. See sections 240(c)(6)(A) & (B) and 240(c)(7)(A) & C of the Immigration and Nationality Act, 8 U.S.C. §§ 1229a(c)(6)(A) & (B) and (c)(7)(A) & C; 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1); see Matter of, J-J-, 21 I&N Dec. 976 (BIA 1997).

In light of the foregoing, the following order will be entered.

ORDER: The record is returned to the Immigration Court without further action.

David B. Holmes
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Rachel Effron, Esquire

Gregory E. Radics
Assistant Chief Counsel

The respondent, a female native and citizen of the Ivory Coast, has appealed the Immigration Judge’s decision mailed on January 28, 2008. The Immigration Judge denied the respondent’s motion to reopen proceedings in which she was ordered removed in absentia on November 12, 2003. Both parties filed briefs before the Board. The appeal will be sustained and the record will be remanded. [FN1]

On appeal, the respondent reiterates that she did not receive proper notice since the address listed on her Notice to Appear (“NTA”) was not her last known address. During the pendency of this appeal, we decided Matter of C-R-C-, 24 I&N Dec. 677 (BIA 2008) (holding that the alien overcame the “weaker” presumption of delivery of a NTA sent by regular mail since he had submitted an affidavit stating that he did not receive the notice, there was additional evidence indicating he had an incentive to appear, and he had exercised due diligence in promptly obtaining counsel and requesting reopening of the proceedings), and Matter of M-R-A-, 24 I&N Dec. 665, 674-76 (BIA 2008) (setting forth the standards for determining whether an alien has presented sufficient evidence to overcome the weaker presumption of delivery that attaches to notices sent by regular mail). Cf. Dominguez v. United States Att’y Gen., 284 F.3d 1258 (11^th Cir. 2002) (finding sufficient a notice of hearing sent to the respondent’s last-provided address, but not addressing section 240(b)(5)(A) of the Act, as construed in Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001).

We find that the respondent has presented sufficient evidence to overcome the presumption of delivery of the NTA. The respondent claims that she has been married to two United States citizens who filed separate visa petitions on her behalf. She submitted evidence attached to her motion to reopen indicating that the Department of Homeland Security (“DHS”) maintained 2 different alien numbers for her based upon these petitions. The respondent argues in her motion to reopen that the DHS mailed the NTA to an old address associated with her first visa petition, filed in 1997 by Mitchell Harper. The NTA identifies the respondent’s last name as Epila-Harper and the record reflects that the NTA was issued upon denial of the visa petition filed by Mitchell Harper.

In addition, the respondent submitted a photocopy of an employment authorization card issued after her marriage to James Baines in March 2000, which lists her name as Agnes Baines with alien number 078 381 512. She also submitted documentation from DHS, with an attached fee receipt dated September 20, 2000, addressed to Agnes Baines and listing a different address for the respondent than the address identified on the NTA. Moreover, she provided correspondence from DHS, issued after the NTA was served, which identifies her by alien number 078 381 512. We do not find the Immigration Court’s lack of a change of address form to be determinative in this case since the respondent has presented sufficient evidence that the NTA was not mailed to her at her last known address. Under the circumstances of this case, we find that the respondent has overcome the weaker presumption of delivery of the Notice to Appear sent by regular mail under the standards set forth in Matter of M-R-A-, supra.

Accordingly, the following orders shall be entered:

ORDER: The appeal is sustained.

FURTHER ORDER: The motion to reopen is granted, the 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.

Jim Hilz
FOR THE BOARD

FN1. We review findings of fact by an Immigration Judge under the clearly erroneous standard of review, but we may review de novo questions of law, discretion, and judgment and all other issues in appeals from decisions of Immigration Judges. 8 C.F.R. §§ 1003.1(d)(3)(i), (ii); see also Matter of V-K-, 24 I&N Dec. 500 (BIA 2008); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).