Sumithra Keerthi Prasanna Fernando Conganige, A088 035 796 (BIA May 28, 2013)

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Hanl ey Mahew M, Esq Attorney at Law212 S M esquite Steet Site #2F Aington TX 7600

US Department ofJustice

Execuve Oce r Imigaon Revew

Board of Imigraton AppealsOce of te Clerk

5107 Leburg Pike. Suite 2000

Fal Ch1ch Vgina 2204

HS / ICE Oice of Chief Counsel • DAL125 E John Capente wy Ste 500ing X 75062-2324

Name: CONGANIGE SUMHRA KEER... A 088035796

Date of this notice 5 /28 /203

nclosed s a copy of the Board's decso ad order n the above-reenced case.

closure

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Cite as: Sumithra Keerthi Prasanna Fernando Conganige, A088 035 796 (BIA May 28, 2013)



US Department ofJusticeExecutive Oce Imgaton Reew

Decson of the Boad o gaon Appeal

Fal Chuh, Virgnia

File: A088 03 6 Daas, TX Date:

In re SUMITHRA KEERTH PRASANNA FEANDO COGAIGE

REMOVAL PROCEEDINGS

APEAL

ON BEALF OF RESPONDENT: Matew M. aney Esque

ON BEAF OF S Mchelle Allen-McCoy Assstant Chef Counsel

APPLCATO eopening

MAY 8 2013

The espondent a native and ctzen of he S anka was odeed emoved n absentia on March 7 201 On ecebe 20 201 the respondent ed a oton to eopen poceedinswhch was denied by the Imgration Judge on Febuay 2012 he espondent led a timely appea of that decson Te recod wl be remanded

The mraton udge n reacing hs Febuay 4 202 decsion ndcated that therespondent dd not present any evdence othe than hs own adavt to estabsh ack of notcewth respect to is otice to Appear or notce r te March 201 heaing See . at 6

owever, the ecord reects that with hs cuent moton to reopen proceedings the espondent submed hs oinal moton to eopen whch was rejected because thee was no poof of sevceand the ng fee had been ncoectly pad to the Cou This rst moton ncuded twoadditiona adavts suppotng the respondent's cam regadng lack of notce In view of thesecrcumstances we wil reu the cae to the mmigraton Judge in order to alow themigration Judge to consider ts additonal evidence in the st nstance and r therespondent to rthe addess his cam of non-receipt of the Notice to Appear and notce r hsearin as we as to pusue any other potentally avaiabe eef

ODE: m mmg Jug g w

Cite as: Sumithra Keerthi Prasanna Fernando Conganige, A088 035 796 (BIA May 28, 2013)



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ITED STATS DPARTMT OF JUSTICE XECUTIV OFFICE FOR IMMIGRATIO REVIEW

IIGTIO COURT

HLEY MATTHW M

1100 CORCE ST, ROOM 404 DALS, T 5242

212 S MESQUITE ST STE 2 ARLIGTO, TX 6061

I TH MATTER OF FILE A 08803596 COGIG SUMIT KERTHI PSN A FERDO

ABL TO FORWARD - O DRESS PROVIDED

DATE: Feb 15 2012

. ATTACHED IS A COPY OF THE DCISIO OF TH IMMIGTIO GE THIS DECISI6� F IS FIA LSS APPAL IS FILD WITH TH BOD OF IMMIGTIO APPALS /

WITHI 30 CALD DAYS OF THE DATE OF TH ILIG OF THIS WITT DCISio SEE THE ECLOSED FORMS D ISTRUCTIOS FOR PROPRLY PRPIG YO APPE YOU OTIC OF APPA ATTACHED DOCUMTS, F OR FEE WAIVR RQUES�t·

MUST BE MAILED TO BOARD OF IIGRATIO APPEALS OFFICE OF THE CLERK PO BOX 8530 FALS CHCH VA 22041 '

i ATTACHD IS A COPY OF THE DECISIO OF THE IMMIGTIO JG A TH RESuT OF YOUR FAILUE TO APPEAR AT YOUR SCHLED DPORTATIO OR RMOV HEIG THIS DECISIO IS FI LESS A MOTIO TO REOP IS FILD I ACCORC WITH SECTIO 242B() 3) OF THE IMMIGRATIO D ATIOALITY ACT 8 U.S C SECTIO 1252B) 3) I DEPORTATIO PROCEDIGS OR SCTIO 240) 6)8 u.sc SETIO 1229) 6) I REMOVAL PROCEDIGS IF YOU FILE MOTIO TO REOP YOUR MOTIO MST BE FILD WITH THIS COUT

� OTHR

CC

IMMIGTIO COURT1100 CORC ST ROOM 404 DS TX 5242WeJ{tl

FF



UIED SES DEPARME OF JUSIEEXEUIVE OFFIE FOR IMMIGRAIO REVIEW

IMMIGRAIO OURDALLAS, EXAS

IN THE MER OF:

OGAIE SUMIRA

)))))))RSPONENT

HARGES:

APPLICATION(S):

IN REMOVLPCENGS

088035-796

Sectio 212(a)(7)()(i)() of the migratio ad Natioiy Act, as ameded, as imigrat who, at thetime of applicatio admissio, is ot i possessio of a

valid unexpied imigrat visa, eentry peit, boder cossig cad, o othe vaid ety docet eqired y thect, ad a valid uepired paspo, o oe sitbe traveldocuet, or documet of identity and nationaiy asreqied unde the eguatios by the ttoey Geerade Sectio 2 (a) of te ct

Motio to Reopen

O BEHALF OF HE RESPODE: O BEHALF OF EDEPARME OF HOMELADSEURIY:

Mathew M Haey sq212 S Mesqites St. Ste. 2FAngto, 76010

eidi Graam, EsqAssistat Chief Cosel ICE125 E Joh Ceter Fwy Ste 500rvig TX 75062

ORDER OF E OUR

The Respondent has fed a Motion to Reopen in te above-captioned case. For

the owing easos, he Motion will be DEIED.



WE DEISIO O E IMMIGRAIO DGE

AUAL AND PROEDURA HISORY

he Responent is a male, natie an citizen of Sri Lanka. Recor of

Depotable/namissble Aen (o 23 On or about August 7, 2000 he was parole

into the Unite States at ew York, ew York n orer to ursue a pening Appcaton

to Register Permanent Resence or Ajust Status (orm 485) I

On ebuary 1, 200, the Responent,s 485 apcaton was ene ue to

eigbility issues I

On July 22, 2010 the Department of omelan Security (DS or the

Goeent see the Responent by reguar mal at 533 eanering Creek Court,

ort orth, eas 76179 with a otice to Appear (A, chargng him with

remoabty uner Section 22(a(7(A(i(I Notce to Appear, ate Ju. 22, 2010.

On Augst 14, 2010 the Dalas mmigration Court sere to the Resonent by

reguar mail at 5133 Meanerng Creek Cour, ort Worth, Texas 76179 a otice of

Heng, setting the Responent's remoal hearing r March 7, 20 Notce of

earing. e otce of Hearng was not ree by the Posta Seice

he Responent i not appear r his hearing on March 7, 2011 an thus the

roceeings were conucte in absentia Orer of the Imigration Juge. On March 7,

01 the Cou orere the Resonent remoe to Sr Lanka aer the Goeent

submte a orm -213, Recor of Deporable Alien, that establishe the truth of the

aegatons contane n the A

On December 20 201 the Responent, through counsel sumtte the present

Motion to Reopen arguing that he i not receie hs otce to Apear or Notice of

2



Heig d tht exceio cimsces esled hs ile o e o is c

7 2011 heg

LEGAL STANDAS

A de of Remov eeed in absenia my be escded o Motio o

Reoe i he e demostes tht e did o eceve oe otce of the scedled

eig. INA§ 240(b)(5)(C)(); 8 C.F.R. § 1003.23(b)(4)(iii) Poe otice c be

ccomlished hog eso seice of the we otce o f eso sevce is o

cticble ogh sevce by mil to e Resodet IA§ 239()( l ) A Noice of

Heig is oely seved we it s esoly deliveed to the lie o his oey, o

whe is mled to te toey o o he ls ddess ovided by the ie ccodce

wih IA§ 239()()(F) A§ 239()(l ) (c) Addtoly sevce by m of Noice

of Heg is scet if hee is oof of ttemted delvey to the lies mos ecely

ovided ddess INA§ 239(c)

f otce of deotio oceedigs is oey ddessed d set o the le by

egl mil ccodig o oml oce ocedes thee is esmio of delivey

lbei weke th cetied mil aer of-A 24 I & N. ec. 665 A 2008).

s whe esodet bses is moio o eoe o cim t he o se lcke

otice, he qesto to be deeed s wethe e esodet hs eseted scet

evdece to ovecome the weke esmtio of delvey. I 673.

We Resode's moto o escd in absentia oe of emov is bsed

o clim t oce to Ae o oic of eg set y egl mil to e mo

ece ddess ws o eceved e bde s o e esoe o ovde oof t the

docme ws ot eceve See ater ofRamirezSanchez 7 & ec 503 (BIA

3



0) In deenng wheher a ·responden has rebued he weaker resumpion of

delivery, an mmigraion Judge may onsider a varey of ors nuding, bu no

limed o, he llowng () e respondens adav; (2) afdavs om famly

members or oher ndividuas who are knoedgeabe abou he s reevan o heher

noie was reeved; (3) he respondens aions upon eng of he n absena order,

and weher due dligene was eersed n seeking o redress he siuaion; (4) y rior

afave apliaion r relef ndang ha he resonden had an inenive o

apear; (5) any rior aliaion r relef led wih e mmigraon Cor or any rma

ie evdene he reord or he respondens moion of sauory egbi r relief,

ndiaing ha he responden ad an nenve o aear; (6) e resondens previous

aendane a Igraon Cour hearngs, f appabe; and (7) any oher rumsanes

or evdene indang ossble noeei of noe owever mmgraon Judges are

neher required o deny reoenng f su evdene s no rovded nor oblged o gran a

moion even f every e of evdene s submed Eah ase mus be evauaed based on

is o ariular irumsanes and evdene Ma ofMR-A, 24 I & N. e a 674

owever, saemens by he resondens onse onaned in he moon o

reopen are no evdene, and f unaompaned by oer evidene, do no ay

resondens burden of roof S Ma /RamzSanchz, 7 & e 503 (BIA

0)

A oion o Reopen wi no be graned unless he Resonden esablishes a

pa ac ase of eligy r e underyng relef S NS Abuu 45 U.S 4,

I 04 () A oon o eoen mus aso e aoaned y apaons r reef and

a suoring douens INS oh 502 S 34 (2)

4



dditioay the Court ay execise its sua spont authority to eope i "truly

exceptioa situaios ad whee the iteests of justice woud be seed. n R G-D-,

22 I. & N. ec 132 BI 1999)

Fialy a immigatio judge has boad authoi o gat o dey a motio to

eope IS oh 502 U. 314 322 1992)

A Excptonal rcustancs

AALYSIS

A ode of emova eteed n absnta may be escided upo a motio to

eope led withi 180 days of the date of he ode of emova if the aie demostates

that his iue o appea was because of exceptioa cicumstaces as deed i ectio

240e)) of the ct 8 CFR. § 003.23b)4) ectio 240e)) of the ct povides

[t]he te exceptioal cicumstaces' es o excepioal cicumstaces (such as

battery o exteme cuely o he alie o ay child o paet of he aie seious iless of

the alie o serious illess o death of the spouse chid o paret of the alie but ot

icludig ess compeig cicumsces) beyod he coro of he aie

Hee the Respodet's motio as ot ed wihi 180 days of the date of the n

absnta ode of emova ad thus is ime-bared Accodigy he Respodet cao

show that exceptioal cicumstaces excused his faiue to appea o arch 7 2011

B. Lack o otc

he Respodet ages that this Cout shoud grat his Moio to Reope because

he did o eceive the Noice o ppea o he Notice of Heaig The espode saes

i his Moio hat he did o eceive the Noice o ppear because it was set to his

wi's attoey i New Yo City. Howeve the Notice to ea idicates that it was

5



sent by regular mail to the Responden's address in For Woh, Texas, and no o his

wis attoey in New York Ciy S Notice o Appear Tus, contrary to the

Respondents assertion, e record shows tha he Noice o Appear was sen o he

coec addess

e Responden ses in hs adavi ha, although the Notice of Hearng was

sent o he corect address, he did no receive i because his wi iled to noti him of its

aival The Responden, however, presented no other evidence oher han his own

adavi o esablish lack of noice Thus, he Cour must deterine wether the

Respondens adavi alone is sucien o rebut the presupion of proper delivey b

regula mal

The Cout nds, r e llowing reasons, ta te Respondent has not rebuted

the weaer presumtion of delivery by regular mail Firs, e Responden as iled to

provide any corroboraing evidencein he rm of a leter, declaration or adavi-

om soeone with personal knowledge of e circusances suounding his alleged

lack of notice Altough he Respondens own adavit is indeed evidence, as te Tenth

Circuit has held, a mere conclusory staemen of nonreceip is insucien in lig of he

presuption of proper delivery by regular mail S Garung v. Ashcro 371 F.3d 18

722 (10 Cir 2004) S also Joshi v Ashcro 389 F3d 32 73536 (7 Cir 2004)

(holding ha an alien's adavi alleging nonreceip alone constitues "weak evidence)

Second, he Respondent's 485 applicaion was denied on February 00

ore than a ye bere his scedued earin de of Mac 7, 0 s, a e ie

1 Athuh the u recize that it i t bu by the Teth ircuit the u ethee theircuit u' reai t be eruaive thi iue.

6



of his hearng, the Repodet dd ot have an ncetve to appear as he wa not pma

ce elgble r rele.

Te Co ha condered al reevant ct ad crcumstances n the record an

nd r the reaso stated aove that the epoent has ot presented suciet

evece to rebut he weaker presumton of delve y regular mal

C Inectve Aitance of Counel

To te extent hat the Resodet clam neective aance of cone, e

Cour nd that he has ot compled wth the requrement of Matter ofLozaa 19 &N

Dec 637 (BIA 1988)

Under Matter ofozaa a moton to reope or recosder based upo a clam of

eectve astace o counsel requres:

(1) tat he moton be uppored y a afdavt of he allegedly aggrevedrepodet etg th detail he agreement at was entere to wih coselwth rect to the acto to e ake an what repreenato counel dd or dnot make to the respondet n s regar

(2) at couel whose ntegrty or competece beng mugned be irmed o the allegatons leveled againt him and e give the oppority to respond an

(3) that he motion reect wheher a complat ha bee led w approprateiscplinary authoritie wit respect to any volato o couel's ehca or legareoniilites, and if ot why ot 9 &N Dec 637 (BA 1988)

Here e esodet's clam of eectve astace of cousel must e deied

a he has not atempte to comly wth ay o the thee requrement uder Mater of

Lozaa

Fially the our d that th cae does ot preset the eceptioa

circmstances warrantg a ua ponte reopeng of the proceedgs

·' .(,c

7

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•

COCLUSO

Aodgy he oing Ode i e eneed:

ORDER

IT IS HEREBY OERE a e espondes oo o eopen 1s

EIE.

Dae fA l',"ODaas, Texas

Documents

Sumithra Keerthi Prasanna Fernando Conganige, A088 035 796 (BIA May 28, 2013)