Mohamed Lamine Sanogo, A099 163 486 (BIA Jul. 23, 2012)

8/12/2019 Mohamed Lamine Sanogo, A099 163 486 (BIA Jul. 23, 2012)

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Weinrib Neil A305 Broadway Suite 1002New York NY 10007-0000

Name: SANOGO MOHAMED LAMINE

U S Department of Justice

Executive Office for hnmigration Review

Board o mmigration Appeals

Office o he Clerk

5107 leesburg Pike Suite 2000

Falls Church Virginia 22041

OHS/ICE Office of hief Counsel • NYC26 Federal Plaza Room 1130New York NY 10278

A099·163-486

Date of this notice: 7/23/2012

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

Enclosure

Panel Members:

Adkins-Blanch, Charles K.

Hoffinan, Sharon

Manuel, Elise L

Sincerely,

Donna arr

hief Clerk

Cite as: Mohamed Lamine Sanogo, A099 163 486 (BIA July 23, 2012)



U S DepartnlentofJusnceExecuiive Office for Immigration Review

Decision o the oard of Immigration Appeals

Falls Chmch uginja 22041

File: A099 163 486 - New York NY Date:

In re: MOHAMED LAMINE SANOGO

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Neil A Weinrib Esquire

APPLICATION: Reopening

JUL 2 2 12

The respondent a native and citizen ofMali was ordered removed in absentia on April 18 2008.On April 25 2011, the respondent filed a motion.to reopen proceedings, which the ImmigrationJudge denied on June 29 2011. The respondent filed a timely appeal o hat decision. The appealwill be sustained proceedingswill be reopened and the record will be remanded.

In view o he totality o circumstances presented in this case including the respondent saffidavithis marriage to a citizen and bis ongoing efforts to adjust bis status, we will reopen proceedings,sustaining the respondent s appeal o he Immigration Judge s denial o he motion under our de novoreview authority. Accordingly the respondent will be provided the opportunity to attend anotherhearing.

ORDER: The appeal is sustained proceedings are reopened and the record is remanded to theImmigration Judge for further proceedings consistent with the above opinion.




UNITED STATES DEPARTMENT OF .JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEWUNITED STATES IMMIGRATION COURT

NEW YORK, NEW YORK

File: A099 163 486 Date: June 29, 2011

In re: the Matter of

. .--

SANOGO MOHAMED

.:.- : ~ ~ORDER ON MOTION TO ;REQPmf

Respondent.

ON BEHALF OF RESPONDENT:

Neil A. Weiruib, Esq.305 Broadway, Suite 1002

New York NY 10007

REMOVAL PROCEEDINGS

ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY:

Karen Fox, Esq.

Assistant Chief Counsel

New York District

DECISION OF TH IMMIGRATION JUDGE

: _-

c1......i.. .

The record reflects that on April 18 2008, the respondent failed to appear at his removalhearing and was ordered removed n bsenti pursuant to Section 237(a)(Ol)(B) of the

Immigration and Nationality Act (hereafter, the Act ).

On April 18 2007, the respondent filed this motion to reopen removal proceedings. On

May 10 2011, the Department ofHomeland Security (DHS) filed a response in oposition to the

motion to reopen. For the reasons stated below, the motion must be denied.

A motion to reopen removal proceedings after an order of removal has been entered n

bsenti must be filed within 180 days of the entry of the order when the respondent alleges that

his failure to attend his hearing was due to exceptional circumstances. 8 C.F.R.

1003 .23(b)(4)(ii). A motion to reopen removal proceedings ·alleging lack of notice of the hearingthat the respondent failed to attend may be filed at any time. 8 C.F.R. 1003.23(b)(4)(iii)(2). All

other motions to reopen must be filed within 90 days of the final administrative order of removal.8 C.F.R. 1003.23(b)(l). Finally, the Court may deny a motion to reopen in the exercise of

discretion, even if the respondent establishes prim f cie eligibility for the relief sought. 8

C.F.R. 1003.23(b)(3).




The respondent avers that he did not receive a copy of the notice of the hearing he failed

to attend. He further contends that while he lived at the address of record until December of

2007, he continued to pay the rent and to receive mail at this apartment until early 2009. His

affidavit is silent as to whether he ever provided the Department ofHomeland Security (formerly

the Immigration and Naturalization Service) of his new address. He claims that he did not receive

a copy of the Notice to Appear nor the subsequent hearing notices and, by inference, that he did

not receive a copy of he in absentia removal ordered entered on April 18, 2011. The respondent

concedes that he became aware of the in absentia removal order on June 29, 2010, when he

appeared with his wife for a USCIS interview in Virginia.

The Second Circuit has explained that when a respondent seeks to rescind an in absentia

removal order claiming non-receipt, the Immigration Judge must consider all relevant evidence,

including circumstantial evidence offered-to rebut the presumption of receipt of notice. See

Alrefaev

Chertoff. 471 F. 3d 353, 359 (2d Cir. 2006); Lopesv

Gonzales 468 F. 3d 81 (2d Cir.2006). While not binding in this jurisdiction, the Seventh Circuit commented that most letters

are delivered, but some aren't , and so if there is a sworn denial of receipt, the trier of fact has to

weigh the credibility of the denial in light of the fact that the vast majority of letters are delivered

and that the intended recipient has a strong incentive to lie. Joshi v Ashcroft 389 F. d 732,

735 (7 h Cir. 2004).

The record reflects that on June 11 2007, a copy of the Notice to Appear was mailed to

the respondent's address of record. [Exhibit l] Further, on February 12, 2008, the Court mailed

the notice of the hearing scheduled for April 18 2008 and which the respondent failed to attend.

[Exhibit 2]. On April 18, 2008, the Court mailed a copy of he in absentia removal order to the

respondent. None of these three mailings directed to the respondent's address of record werereturned by the U.S. Postal Service as undelivered. In his affidavit, the respondent contends that

he was receiving mail and paying rent at the address of record until early 2009, and does not

indicate ever experiencing any problems in receiving mail at that address. The Court believes

that absent specific evidence to the contrary, it would be highly unlikely that not one, but three

separate mailings mailed to the same address over a period of ten months would all not be

delivered. n the view of the Court, the respondent's bare assertion that he did not receive notice

of the hearing he failed to attend is insufficient to overcome the presumption that he received that

notice by mail. Accordingly, the Court must find that the respondent was properly notified of the

hearing he failed to attend.

Lastly, even if the Court were to find that the respondent was not properly notified of thehearing he failed to attend, the Court would still deny the motion to reopen in the exercise of

discretion. As stated above, it is apparent that the respondent became aware of these proceedings

on June 29, 2010. In the view of he Court, a ten-month, unexplained delay in filing the motion

to reopen is unreasonable, does not establish that the respondent exercised due diligence and that

he warrants the granting ofthis motion in the exercise of discretion.



.· ·--· '.

• Accordingly, after a careful review o the record, the following orders will be entered:

ORDER IT IS ORDERED that the respondent s motion to reopen removalproceedings be and the same is hereby denied

UvmELA.U.S. Immigration Judge

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Mohamed Lamine Sanogo, A099 163 486 (BIA Jul. 23, 2012)

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