Mohammed Jammeh, A205 274 106 (BIA Feb. 23, 2015)
Mohammed Jammeh, A205 274 106 (BIA Feb. 23, 2015)
Department of Justice
Executive Office for Immigration Review
A 205-274-106
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DOWtL ca.AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
Holmes, David B.
Miller, Neil P.
Userteam: Docket
JAMMEH, MOHAMMAD
TACOMA, WA 98421
A 205-274-106
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy.
decision pursuant to
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,
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
Holmes, David B.
Miller, Neil P.
Userteam:
Cite as: Mohammed Jammeh, A205 274 106 (BIA Feb. 23, 2015)
A205-274-106
NORTHWEST DETENTION CENTER
1623 E J STREET
File:
Seattle, WA
Date:
FEB 2 3 2015
ON BEHALF OF RESPONDENT:
Eric Bakken
ON BEHALF OF DHS:
Senior Attorney
APPLICATION: Motion to reopen
The respondent, a native of Saudi Arabia and citizen of Gambia, has appealed from the
Immigration Judge's December
previously denied motion to reopen after the respondent was order removed in absentia on
June
24, 2014. The Department of Homeland Security ("DHS") has filed a brief in opposition to
the appeal. Proceedings will be reopened and the record will be remanded to the Immigration
Judge for further proceedings.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de nova.
See
8 C.F.R.
used the correct address as provided by the respondent, we conclude that the Immigration Judge
did not properly consider whether the respondent had overcome the weaker presumption of
delivery of the notice when regular mail is used. See Matter of M-R-A-, 24 l&N Dec. 665, 674
(BIA 2008) (holding that "an inflexible and rigid application of the presumption of delivery is
not appropriate where regular mail is the method of service of a Notice [of Hearing]" and listing
factors to be considered in determining whether the respondent has overcome the presumption of
delivery).
We particularly note that the Immigration Judge did not consider many relevant
Matter of M-R-A-,
knowledgeable about the facts relevant to whether notice was received; prima facie evidence in
the record of statutory eligibility for relief, indicating that the respondent had an incentive to
appear; the respondent's previous actions in learning he was sought by immigration authorities;
other circumstances or evidence indicating possible non-receipt of notice. Id.
Cite as: Mohammed Jammeh, A205 274 106 (BIA Feb. 23, 2015)
APPEAL
A265 274
106
'
considering the totality of the circumstances presented in this case, including the record
evidence that the respondent entered the United States lawfully and is married to a United States
citizen, we find it appropriate to reopen proceedings.
Immigration Judge to consider the respondent's eligibility for any form of relief from removal
that is available to him. Accordingly, the following order will be entered.
The respondent's motion to reopen is granted.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings and issuance of a new decision consistent with this opinion.
....
L-
Cite as: Mohammed Jammeh, A205 274 106 (BIA Feb. 23, 2015)
ORDER:
SUITE 2500
98104
LLC
sarjo
4710 E. Broadway
Suite 115
Madison,
WI
53716
FILE A 205-274-106
IN THE MATTER OF
JAMMEH,
DATE:
Dec 8,
2014
MOHAMMAD
THIS DECISION
ATTACHED DOCUMENTS,
VA
Suite 2000
20530
8 U.S.C.
SECTION 1229a(c)(6}
TO REOPEN,
IN REMOVAL PROCEEDINGS.
SEATTLE,
OTHER:
WA
SUITE 2500
98104
MOTION TO REOPEN
COURT CLERK
IMMIGRATION
CC:
ERIC BAKKEN,
ICE ASST.
WA,
CHIEF COUNSEL
STE 2900
98104
FF
WA
Date
Dec.
File Number
IN REMOVAL PROCEEDINGS
Judge Kenneth Josephson
CHARGE:
Motion to Reconsider
APPLICATION:
ON BEHALF OF RESPONDENT
ON BEHALF OF DHS
Sarjo Barrow,Esq.
Eric Bakken,Esq.
ORDER OF THE IMMIGRATION JUDGE
On Nov. 3,I entered a decision denying an MTR filed by respondent after he failed to appear for
his scheduled removal hearing of June
drew the DHS opposition of Dec.
been counsel representing his client for well over a month, we still have no declaration from the
respondent; only statements from counsel.
As noted in
Matter of Laureano,
Respondent's
19 I & N
Dec.
I, 3 (BIA
down a wrong digit in the zip code in terms of the address that was used to give notice of hearing; and
his client did not receive notice of hearing. However, neither our notice of hearing was returned to us
nor was the in absentia order that were sent to the address of record. While there is an affidavit from
respondent's sister and wife that accompanies the motion to reconsider reciting that they didn't see any
hearing notice (of course it would not have been addressed to them); there is nothing from the
respondent himself notwithstanding the passage of such an additional significant period of time.
Additionally the affidavits from the alleged USC spouse and the sister make no assertion that they were
present when the respondent, again according to counsel, supposedly gave a different zip code to. the
apprehending officer. While the wife claims to have "filed" a form I 130 why has she not provided a
copy of the same along with her "money order" (para. 5) together with say a certificate of mailing even
if she has not received her I 797? I agree with DHS that at this point, this respondent has still not
demonstrated any prima facie basis to any entitlement to relief nor that he did not fail to receive notice
of hearing.
CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED
BYM)
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Respondent
4, 2014