U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 lee.sburg Pike, Suite 2000 Falls Church, Virginia 22041

Butbul, David, Esq. Attorney at Law 5901 W. Dempster Street, Suite 200 Morton Grove, IL 60053

OHS/ICE Office of Chief Counsel - CHI 525 West Van Buren Street Chicago, IL 60607

Immigrant & Refugee Appellate Center | www.irac.net

Name:TOKBAEV,RENAT

A 089-274-160

Date of this notice: 8/6/2013

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

DonnL Cwvu
Donna Carr Chief Clerk

Enclosure Panel Members: Miller, Neil P. Kendall-Clark, Molly Holmes, David B.

lucasd Userteam: Docket

Cite as: Renat Tokbaev, A089 274 160 (BIA Aug. 6, 2013)

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U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals

File:

A089 274 160- Chicago, IL

Date:

AUG 0 6 2013

In re: RENAT TOKBAEV IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: David Butbul, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Alexandra Kostich Assistant Chief Counsel

APPLICATION:

Reconsideration

This matter was previously before the Board on March 29, 2013, when we dismissed the respondent's appeal from an Immigration Judge's decision denying his motion to reopen removal proceedings, which were conducted (DHS) opposes. Upon reconsideration, we have decided to vacate our March 29, 2013, decision and remand the record to the Immigration Judge for further proceedings. The record reflects that the Immigration Court in Chicago, Illinois initially issued a hearing notice by regular mail to the respondent's address of record stating that he had a master calendar hearing scheduled for July 19, 2012. A short time later, and not at the request of either party, the Court issued a second hearing notice by regular mail to the respondent that changed his master calendar hearing to May 18, 2011
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in absentia on

May 18, 2011. The respondent has now filed

a timely motion to reconsider our prior decision, which the Department of Homeland Security

more than 1 year before his original master calendar hearing date.

In an

affidavit accompanying his motion to reopen before the Immigration Judge, the respondent attested that he did not receive this second hearing notice. been proffered with the instant motion to reconsider. Given the totality of the circumstances, including the weaker presumption of delivery of a hearing notice by regular mail, we now find it appropriate to sustain the respondent's appeal, grant the motion to reopen and rescind the in absentia order that was entered on May 18, 2011, and remand this matter for a new hearing on the respondent's removability and, if applicable, for any relief from removal that he may seek. A statement from the respondent's friend corroborating the respondent's assertion of non-receipt of the second hearing notice has

See generally Matter of M-R-A-,

24 I&N Dec. 665

(BIA 2008). Accordingly, the following orders will be entered. ORDER: The motion for reconsideration is granted. FURTHER ORDER: The Board's March 29, 2013, decision is vacated, and the respondent's appeal is sustained.

Cite as: Renat Tokbaev, A089 274 160 (BIA Aug. 6, 2013)

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. A089 274 160

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The proceedings are reopened and the record is remanded for further proceedings consistent with the foregoing opinion and for the entry of a new decision.
FURTHER ORDER:

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Renat Tokbaev, A089 274 160 (BIA Aug. 6, 2013)