Arley Max Dos Santos, A200 068 519 (BIA May 27, 2016)
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Transcript of Arley Max Dos Santos, A200 068 519 (BIA May 27, 2016)
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S
aadzoi
Helly
Saadz
oi law
firm
6
1 north 1
9th str
eet
Al
lentown
PA 1
8104
Nam
e: DOS
SANT
OS AR
LE Y M
AX
U S D
epartm
ent o
Justic
e
Execu
tive O
ffice f o
r Im m ig
ration
Revie w
oa
rd of
m
m igrati
on pp
eals
Off
ice of
he Cler
k
5
107 Leesbu
rg P;ke Su
ile 2000
F
al ls Churc
h Virgini
a 22041
DHS/
IC E Of
fi ce
of C hief C
ounse
l - HOU
126
N orth
point D
rive S
uite 20
20
H
ouston
X
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For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/
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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°
,
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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
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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.
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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-
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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-
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. .
( 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
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.
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
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·
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