Javier, Tiffany BRETZ & COVEN, LLP 305 Broadway, Suite 100 New York, NY 10007

Name: ROSARIO, FELIX

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5 J 07 Leesburg Pike, Suite 2000 Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - NYC 26 Federal Plaza, 11th Floor New York, NY 10278

A 075-930-968

Date of this notice: 7/10/2015

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

Enclosure

Panel Members:

Grant, Edward R. Guendelsberger, John Holiona, Hope Malia

Sincerely,

DOWtL c t1ftA)

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

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Cite as: Felix Rosario, A075 930 968 (BIA July 10, 2015)

ROSARIO, FELIX A075-930-968 HUDSON COUNTY CORRECTIONAL 30-35 HACKENSACK AVE KEARNEY, NJ 07032

Name: ROSARIO, FELIX

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - NYC 26 Federal Plaza, 11th Floor New York, NY 10278

A 075-930-968

Date of this notice: 7/10/2015

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served with this decision pursuant to 8 C.F.R. § 1292.S(a). If the attached decision orders that you be removed from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision.

Enclosure

Panel Members:

Grant, Edward R. Guendelsberger, John Holiona, Hope Malia

Sincerely,

DorutL c t1/lA)

Donna Carr Chief Clerk

Userteam:

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Cite as: Felix Rosario, A075 930 968 (BIA July 10, 2015)

U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A075 930 968 - New York, NY

In re: FELIX ROSARIO

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Tiffany Javier, Esquire

APPLICATION: Reopening

!JUL l O 2015

The respondent, a native and citizen of the Dominican Republic, appeals the decision of the Immigration Judge, dated April 1, 2015, denying his motion to reopen.

Upon consideration of the totality of the record, we are satisfied that the respondent has established that the order of removal, entered in absentia on April 21, 2006, should be rescinded on account of lack of notice. See section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(ii); Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001) (holding that the entry of an in absentia order is inappropriate where the record reflects that the alien did not receive, or could not be charged with receiving, the charging document that was served at an address obtained from documents filed with the former Immigration and Naturalization Service several years earlier). Accordingly, the following order is entered.

ORDER: The respondent's appeal is sustained, the in absentia order of removal is rescinded, these removal 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.

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Cite as: Felix Rosario, A075 930 968 (BIA July 10, 2015)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT NEW YORK, NEW YORK

---------------------------------------------){ In the Matter of

Felix ROSARIO, AO?S-930-968,

On behalf of Respondent Ismael Gonzales, Esq. Gonzales & Associates LLC 1270 Broadway, Suite 202 New York, NY 10001

April I, 2015

Nancy Torrellas, Esq. Assist. Chief Counsel New York District, ICE

DECISION ON REQUEST TO REOPEN PROCEEDINGS AND STAY OF REMOVAL

The respondent, by his attorneys, filed a motion on March 11, 2015 to rescind the court's April 21, 2006 in absentia removal order asserting that he was not provided with notice of the proceedings. The respondent also seeks a stay of removal.

The Dep't of Homeland Security ("DHS"), Bureau of Immigration and Customs Enforcement ("ICE") filed written opposition to the motion on March 24, 2015. For the reasons stated herein, the motion to rescind the in absentia order and to reopen proceedings is denied.

Procedural History The respondent was placed in removal proceedings with the service of a Notice to Appear

("NTA") on March 29, 2006. On April 21, 2006 the respondent failed to appear and the court proceeded in the absence of the respondent and issued an order of removal.

Pertinent Provision Title 8 C.F.R. § 1003.26 states that in any proceedings in which the respondent fails to

appear and the respondent had notice of the hearing, the court shall conduct a hearing in absentia. The 8 C.F.R. § 1003.23(b)(4)(ii) provides that a party seeking to reopen an in absentia removal order must either file a motion to reopen within 180 days after the date of the order and demonstrate that the failure to appear was due to exceptional circumstances or file a motion at any time if the respondent did not receive notice in accordance with sections 239(a)(l) or (2) of the Act or if the respondent was in federal or state custody and did not appear through no fault of the respondent.

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Discussion The respondent's motion will be denied. The respondent argues that he was never aware

that he had been placed in removal proceedings and missed his immigration court date. In the Matter of M-R-A-, 24 I&N Dec 665 (BIA 2008) the Board listed seven factors for the court to consider in rebutting the presumption of delivery. The respondent submitted an affidavit asserting he did not receive the Notice to Appear, however, he fails to submit affidavits from other family members. The respondent also fails to allege if he was eligible for any forms of relief at the time the removal proceedings were imitated as an incentive for him to attend his removal hearing. The respondent was the beneficiary of an immediate relative petition that was denied when his prior wife failed to appear for the interview. The denial of the petition prompted the DHS to begin removal proceedings. The immediate relative petition denial certainly indicates respondent had a disincentive to appear for his removal proceedings.

While the respondent claims he is eligible for Cancellation of Removal, he fails to provide sufficient evidence to demonstrate that he is eligible for such relief. The respondent is not married to his alleged fiancee and she provides no affidavit. Also, the respondent claims to have a US born citizen son, but fails to attach a copy of the birth certificate or other proof that he is the father of the child. The respondent fails to show that he is prima facie eligible for relief.

Accordingly, the following orders shall be entered:

ORDER

IT IS ORDERED that the respondent's motion to rescind the in absentia order and reopen proceedings is denied;

IT IS FURTHER ORDERED that any provisional stay issued in this matter or based upon any statutory or regulatory provisions granting respondent a stay pending adjudication of the motion is vacated and set aside forthwith;

IT IS FURTHER ORDERED that respondent's request for stay of deportation 1 is deemed moot.

1 The respondent requested a stay of removal.

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