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  • Thomas Kiss, A096 783 295 (BIA June 2, 2020)

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    Thomas Kiss, A096 783 295 (BIA June 2, 2020) (respondent rebutted presumption of delivery in light of uncontested evidence that NTA was sent to UPS mailbox that he was no longer renting) (Grant, Mann, Riley)

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    Thomas Kiss, A096 783 295 (BIA June 2, 2020) (respondent rebutted presumption of delivery in light of uncontested evidence that NTA was sent to UPS mailbox that he was no longer renting) (Grant, Mann, Riley)

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    © All Rights Reserved
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    288 views3 pages

    Thomas Kiss, A096 783 295 (BIA June 2, 2020)

    Uploaded by

    Immigrant & Refugee Appellate Center, LLC
    Thomas Kiss, A096 783 295 (BIA June 2, 2020) (respondent rebutted presumption of delivery in light of uncontested evidence that NTA was sent to UPS mailbox that he was no longer renting) (Grant, Mann, Riley)

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    © All Rights Reserved
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    of 3

    U.S.

    Department of Justice

    Executive Office for Immigration Review

    Board ofImmigration Appeals


    O.ffice ofthe Clerk

    5107 Leesburg Pike. Suite 2000


    Falls Church, Virginia 220,/l

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    Calderon, Vissia C. DHS/ICE Office of Chief Counsel - LVG
    Calderon Law 501 South Las Vegas Blvd.,Suite 200
    3909 S. Maryland Pkwy Las Vegas, NV 89101
    Ste 304
    Las Vegas, NV 89119

    Name: KISS, THOMAS A 096-783-295

    Date of this notice: 6/2/2020

    Enclosed is a copy of the Board's decision and order in the above-referenced case.

    Sincerely,

    Donna Carr
    Chief Clerk

    Enclosure

    Panel Members:
    Mann, Ana
    Grant, Edward R.
    RILEY, KEVIN W.

    Userteam: Docket

    For more unpublished decisions, visit

    ✓
    www.irac.net/unpublished/index

    Cite as: Thomas Kiss, A096 783 295 (BIA June 2, 2020)
    U.S. Department of Justice Decision of the Board oflmmigration Appeals
    Executive Office for Immigration Review

    Falls Church, Virginia 22041

    File: A096-783-295 - Las Vegas,NV Date:


    JUN - 2 2020
    In re: Thomas KISS

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    IN REMOVAL PROCEEDINGS

    APPEAL

    ON BEHALF OF RESPONDENT: Vissia C. Calderon, Esquire

    APPLICATION: Reopening

    The respondent, a native of Austria, appeals from the April 6, 2018, decision of the
    Immigration Judge denying his motion to reopen and rescind an in absentia order of removal
    entered on March 9, 2010. Section 240(b)(5)(C)(ii) of the Immigration and Nationality Act,
    8 U.S.C. § 1229a(b)(5)(C)(ii). The Department ofHomeland Security (OHS) has not filed a brief
    in opposition. The appeal will be sustained, the order of removal rescinded, and the record
    remanded.

    We review the findings of fact determined by an Immigration Judge, including credibility


    findings, under a "clearly erroneous" standard. 8 C.F.R. § 1003.1 (d)(3)(i). We review questions
    of law, discretion, and judgment, and all other issues in appeals from decisions of
    Immigration Judges de novo. 8 C.F.R. § 1003.1(d)(3)(ii).

    On January 26, 2010, United States Citizenship and Immigration Services within the OHS
    mailed a Notice to Appear (NTA) to the respondent at the last address he provided to the agency-
    9811 West Charleston Blvd., Apt. 2, Las Vegas, Nevada 89711 (Exh. 1). A notice ofhearing dated
    February 1, 2010, and scheduling the respondent for a hearing on March 9, 2010, was mailed to
    the same address. The respondent reported that the address was for a mailbox at a UPS store that
    the respondent rented from October 15, 2008, to October 15, 2009 (Motion to Reopen at Tab D).
    The OHS has not challenged the respondent's contention that he did not receive the NTA or
    hearing notice.

    Based on the record before us, including the respondent's uncontested affidavit and
    corroborating letter from UPS,the respondent has presented "sufficient evidence" to "overcome
    the presumption of effective service" of the NTA that was "credible, corroborated, and wholly
    unrefuted by the government." Sembiring v. Gonzales, 499 F.3d 981,983 (9th Cir. 2007). "[A]n
    Immigration Judge may not order an alien removed in absentia when the Service mails the Notice
    to Appear to the last address it has on file for an alien, but the record reflects that the alien did not
    receive the Notice to Appear . . . and therefore has never been notified ofthe initiation ofremoval
    proceedings or the alien's address obligations under section 239(a)(l) of the Act [8 U.S.C.
    § 1229(a)(l)]." Matter ofG-Y-R, 23 I&N Dec. 181, 192 (BIA 2001). It does not appear from the
    record that the respondent received actual notice of his removal proceedings or his address
    obligations under section 239(a)(l)(F) ofthe Act. Under these circumstances, "the entry ofan in
    absentia order is precluded." Matter ofG-Y-R-, 23 I&N Dec. at 190.

    Cite as: Thomas Kiss, A096 783 295 (BIA June 2, 2020)
    r,
    A096-783-295

    Furthermore, the Immigration Judge clearly erred in finding that the respondent's prior counsel
    did not receive a copy of the NTA as the Record ofDeportable/lnadmissible Alien (Form 1-213)
    clearly indicates that a copy of the NTA was mailed to former counsel (IJ at 4; Exh. 3 ). However,
    although notice to counsel can be sufficient to discharge the notice obligation, it is undisputed that
    there was no continuing attorney-client relationship between the respondent and his prior counsel

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    when the NTA was issued (Motion at Tab E). See, e.g., 8 C.F.R. § 1003.26(c)(2) (explaining that
    notice to counsel of record constitutes notice to the respondent); see also Matter of Barocio,
    19 I&N Dec. 255 (BIA 1985). Moreover, the respondent has persuasively established that he did
    not have actual notice of the removal proceedings where, as here, he produced (I) an email from
    his prior counsel attempting to forward an electronic copy of the NTA, along with (2) the
    respondent's uncontested affidavit indicating that the email used by prior counsel was incorrect
    (Motion at Tabs D, G).

    Accordingly, the following orders will be entered.

    ORDER: The appeal is sustained.

    FURTHER ORDER: The proceedings are reopen�d,·· the order of removal is rescinded, and
    the record is remanded for further proceedings.

    2
    Cite as: Thomas Kiss, A096 783 295 (BIA June 2, 2020)

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