Hector Alfonso Ordonez-Marroquin, A078 947 716 (BIA Sept. 17, 2015)
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Immigrant & Refugee Appellate Center, LLCHector Alfonso Ordonez-Marroquin, A078 947 716 (BIA Sept. 17, 2015)
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Name: ORDONEZ-MARROQUIN, HECT...
A 078-947-716
Date of this notice: 9/17/2015
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DonnL t!
aAA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holmes, David B.
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Cite as: Hector Alfonso Ordonez-Marroquin, A078 947 716 (BIA Sept. 17, 2015)
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Gonzalez, Raed Olivieri
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U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
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DHS/ICE Office of Chief Counsel - HLG
1717 Zoy Street
Harlingen, TX 78552
Name: ORDONEZ-MARROQUIN, HECT.
A 078-947-716
Date of this notice: 9/17/2015
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.
Sincerely,
DorutL
(1/Vt.)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holmes, David B.
Userteam:
LL
Cite as: Hector Alfonso Ordonez-Marroquin, A078 947 716 (BIA Sept. 17, 2015)
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ORDONEZ-MARROQUIN, HECTOR
ALFONSO
A078-947-716
JCDF
500 HILBIG ROAD
CONROE, TX 77301
U.S. Department of Justice
y
Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
Fails Church, Virginia 22041
File: A078 947 716 - Harlingen, TX
Date:
SEP l 7 20J5
In re: HECTOR ALFONSO ORDONEZ-MARROQUIN
MOTION
ON BEHALF OF RESPONDENT: Raed Gonzalez, Esquire
APPLICATION: Reopening
This case is before the Board pursuant to a July 28, 2015, order of the United States Court of
Appeals for the Fifth Circuit, which granted the motion to remand this matter to the Board to
consider what effect, if any, the Supreme Court's intervening decision in Mata v. Lynch, 135 S.
Ct. 2150 (2015), has on its treatment of the respondent's motion to reopen alleging ineffective
assistance of counsel as a request for sua sponte reopening.
It is not clear that the decision in Mata v. Lynch has any direct applicability to our treatment
of the respondent's motion to reopen, since its holding dealt solely with whether the Fifth Circuit
properly found it lacked jurisdiction to review the Board's denial of a motion to reopen.
Nevertheless, to the extent that the Supreme Court indicated in Mata that it might be improper to
treat untimely or number-barred motions solely as requests to reopen sua sponte, we will re
examine the respondent's claims on remand, as argued both in the Motion to Remand filed while
his appeal was pending before the Board and as argued in a Motion to Reopen he filed on
January 14, 2015.
In both motions, the respondent urged that the attorney who filed his first motion to reopen
filed a patently deficient motion to reopen based on a claim of lack of notice, which led to its
denial by the Immigration Judge and prejudiced him. In particular, he contends that counsel did
not properly explain the basis of the motion and did not submit evidence in support of the motion
that was adequate to establish the respondent's claim that he did not receive notice of the
scheduled hearing below that resulted in an in absentia order of removal being entered by the
Immigration Judge on February 1, 2002. Although there is no time limit on motions to reopen
claiming a lack of notice, such motions are not specifically exempted from the number limit on
motions to reopen. Sections 240(c)(7)(A) and (C)(iii) of the Immigration and Nationality Act,
8 U.S.C. 1229a(c)(7)(A), (C)(iii).
To the extent that equitable tolling of the time and/or number limits may be found to apply to
claims of ineffective assistance of counsel, we have found that prejudice must be shown. See,
e.g., Matter of Assaad, 23 l&N Dec. 553 (BIA 2003). The respondent urges that he was
prejudiced by the deficiencies in the first motion, and that his motion would have been granted if
the proper arguments were set forth in the motion and if additional evidence had been submitted
to support his claim that he did not receive notice of his hearing. Upon review of the all of the
evidence presented, including the respondent's updated affidavit of non-receipt, the cousin's
affidavit of non-receipt, and evidence showing the respondent's potential eligibility for relief at
Cite as: Hector Alfonso Ordonez-Marroquin, A078 947 716 (BIA Sept. 17, 2015)
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IN REMOVAL PROCEEDINGS
..
A078 947 716
Accordingly, upon remand from the Fifth Circuit, we will grant the respondent's motion to
reopen these removal proceedings and rescind the in absentia order of removal.
ORDER: The motion to reopen is granted, and the Immigration Judge's in absentia order
entered on February 1, 2002, is rescinded.
FURTHER ORDER:
The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing and for the entry of a new decision.
FOR THE BOARD
Even if the Fifth Circuit would not apply equitable tolling, we would find, considering the
totality of the evidence presented by the respondent in this case, that an exceptional situation
exists warranting sua sponte reopening in our discretion. 8 C.F.R. 1003.2(a); Matter of J-J-,
21 I&N Dec. 976 (BIA 1997).
2
Cite as: Hector Alfonso Ordonez-Marroquin, A078 947 716 (BIA Sept. 17, 2015)
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the time he was placed in proceedings in 2001 (Motion to Reopen filed Jan. 14, 2015, tabs B, C,
H, K), it appears likely that the outcome would have been different if this evidence had been
presented at the time the initial motion was filed. In other words, it appears likely that if this
evidence had been initially presented, the motion would have been granted based upon a
consideration of the factors set forth in Matter ofM-R-A-, 24 l&N Dec. 665, 674 (BIA 2008), for
determining whether the movant has overcome the lesser presumption of delivery that applies
when a notice is sent by regular mail. Under the circumstances, we find that the respondent has
shown he was prejudiced such that equitable tolling would be warranted. Moreover, he has
presented sufficient evidence that he did not receive notice of the scheduled hearing such that
reopening and rescission of the in absentia order is warranted. Matter ofM-R-A-, supra. 1
