** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **
Executive Office for Immigration Review
Board of Immigration Appeals
Susana Abarca, Esquire
Thomas G. Crossan, Jr.
Assistant Chief Counsel
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] – Present without being admitted or paroled
The respondent, a native and citizen of Honduras, appeals from an Immigration Judge’s decision dated January 15, 2009, denying the respondent’s motion to reopen removal proceedings conducted in absentia on June 5, 2003. The respondent’s appeal will be dismissed.
We affirm the Immigration Judge’s decision denying the respondent’s motion to reopen her removal proceedings that were conducted in absentia. Specifically, we find no error in the Immigration Judge’s conclusion that the respondent did not demonstrate that the in absentia order of removal qualifies for rescission. See section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C); see also 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 8 C.F.R. § 1003.1(d)(3)(i). Pursuant to section 240(b)(5)(C) of the Act, an order issued following proceedings conducted in absentia may be rescinded only upon a motion to reopen filed (a) within 180 days after the date of the order of removal if the alien demonstrates that he failed to appear because of exceptional circumstances, or (b) at any time if the alien demonstrates he did not receive proper notice of the hearing, or because he was in Federal or State custody and failed to appear through no fault of his own. The respondent’s motion is untimely as it was filed well after 180 days, more than 5 years, after the date of the order of removal and, in any event, establishes no exceptional circumstances that would excuse the respondent’s failure to appear.
Furthermore, it is undisputed that the respondent was personally served with the Notice to Appear and provided oral notice in Spanish of the consequences of failing to appear at her scheduled hearing. However, the record reveals that the respondent failed to provide an address at which she could be contacted in accordance with section 239(a)(1)(F)(i) of the Act, 8 U.S.C. § 1229(a)(1)(F)(i) (Exhs. 1A, 2A). See also section 240(b)(5)(B) of the Act. Significantly, the respondent on appeal does not assert that she did, in fact, provide the required address. [FN1] Nor does the record reveal that the respondent provided the required written notice of any change of address, including a Post Office box, or telephone number. See sections 239(a)(1)(F)(ii), 240(b)(5)(B) of the Act. [FN2]
On this record, and in view of the 2003 final removal order, we decline to set aside the Immigration Judge’s decision denying the respondent’s motion to reopen, for the reasons explained by the Immigration Judge. Accordingly, we will enter the following order.
ORDER: The respondent’s appeal is dismissed.
Patricia A. Cole
FOR THE BOARD
FN1. The respondent’s apparent assertion on appeal that the government’s alleged knowledge of an address related to a different proceeding involving a different alien number does not relieve the respondent of her duty to provide an address and telephone number at which she may be contacted respecting proceedings under section 240 of the Act. See section 239(a)(1)(F)(i) of the Act.
FN2. The respondent’s apparent assertion that the Immigration Court improperly denied her FOIA request is without merit (Resp. Br. at 2). The record reveals that the respondent did not comply with the appropriate procedures for filing such request (Resp. Br. at Tab C).