U.S. Department of .

Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 leesburg Pike, Suite 2000
Fa/1.r Cl111rcl,, Virginia 20530

DHSIICE Office of Chief Counsel - LOS

606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name:VAHANYAN,MUKUCH

A 097-109-203
Date of this notice: 5/21/2015

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

DCrtltL ca.AA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Mukuch Vahanyan, A097 109 203 (BIA May 21, 2015)

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Hosharian, Peter a., Esq.

Law Offices of Peter A. Hosharian
1101 N. Pacific Ave., Suite 200
Glendale, CA 91202

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5/07 leesb11rg Pike. Suite 2000
Falls Church. 1'1rginia 20530

OHS/ICE Office of Chief Counsel LOS

606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name: VAHANYAN,MUKUCH

A 097-109-203
Date of this notice: 5/21/2015

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.

DorutL ca/LA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John

Userteam:

Cite as: Mukuch Vahanyan, A097 109 203 (BIA May 21, 2015)

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VAHANYAN,MUKUCH
A097-109-203
ADELANTO DETENTION FACILITY
10400 RANCHO ROAD
ADELANTO, CA 92301

Decision of the Board oflmmigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A097 109 203 - Los Angeles, CA

Date:

In re: MUKUCH V AHANYAN

MAY 112ms

APPEAL
ON BEHALF OF RESPONDENT:

Peter A. Hosharian, Esquire

APPLICATION: Reopening

The respondent appeals the December 22, 2014, Immigration Judge's decision denying the
respondent's motion to reopen his removal proceedings after the issuance of an in absentia order of
removal on June 19, 2014. We review questions of law, discretion, and judgment arising in
appeals from decisions of Immigration Judges de novo, whereas we review findings of fact in such
appeals under a "clearly erroneous" standard. See 8 C.F.R. 1003.l (d)(3). The record will be
remanded.
Pursuant to section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C.
1229a(b)(5)(C), an in absentia removal order may be rescinded upon a motion to reopen filed
at any time if the alien demonstrates that he or she did not receive notice of the hearing in
accordance with sections 239(a)(l) or (2) of the Act. Sections 240(b)(5)(C)(ii) of the Act;
Matter of Guzman, 22 I&N Dec. 722, 722-23 (BIA 1999). The respondent's motion to reopen
claimed that the respondent had not been served with a Notice to Appear (NTA) and had not
received a notice of the June 19, 2014, hearing at his current Ivy Street address in Glendale,
California. The record contains evidence that the notice of hearing (NOH), which had been
mailed to the respondent's prior West Lomita address, was returned to the Immigration Court as
undeliverable. We agree with the Immigration Judge that the motion to reopen did not establish
grounds for rescission of the in absentia order, because (1) the respondent was personally served
with the NTA, which contained his obligation to alert the Immigration Court of any change in
address; (2) the notice of the June 19, 2014, hearing was sent to the West Lomita address listed
on the NTA; and (3) the motion's claim that the respondent had informed the Department of
Homeland Security (DHS) of his Ivy Street address in May 2013 (prior to the service of the NTA
on January 10, 2014) was not supported by an affidavit from the respondent. See Matter of
G-Y-R-, 23 I&N Dec. 181, 185 (BIA 2001).
On appeal the respondent has submitted his own affidavit, which asserts that he willingly
appeared before DHS and informed DHS officers of his Ivy Street address on several occasions,
both prior to and after the issuance of the NTA. . The respondent also submitted a second
corroborating affidavit from his mother, with whom he lives. Finally, the respondent has
submitted evidence that he and his mother received mail at the Ivy Street address prior to the date
on which the NTA and NOH were issued. Given this evidence, as well as the proof of non-receipt
of the NOH contained in the record, we find it appropriate to remand the record to allow the
Cite as: Mukuch Vahanyan, A097 109 203 (BIA May 21, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

A097 109 203

Immigration Judge to conduct fact-finding, and to hold an evidentiary hearing if necessary, to
determine the validity of the respondent's claim that he had informed OHS of his Ivy Street
address prior to the issuance of the NTA. If the Immigration Judge determines that the
respondent did inform OHS of the change of address, it would follow that the NOH was not
properly sent to the West Lomita address, and rescission and reopening would be appropriate. 1

ORDER: The record is remanded for further proceedings.

We point out, however, that if it is determined that the respondent did not inform OHS of his Ivy
Street address prior to the issuance of the NTA, it would follow that the NOH was sent to the
correct address inasmuch as there is neither evidence nor a claim that the respondent informed the
Immigration Court of his new address, as required by the NTA.
2
Cite as: Mukuch Vahanyan, A097 109 203 (BIA May 21, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Accordingly, the following order will be entered.

l)

'

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
606 SOUTH OLIVE ST.
LOS ANGELES, CA 90014

IN THE MATTER OF
VAHANYAN, MAKUCH

FILE A 097-109-203

DATE: Jun 19, 2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c)(3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6),
8 U.S.C. SECTION 1229a(c)(6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
606 SOUTH OLIVE ST.
LOS ANGELES, CA 90014
OTHER:

FF

CC:
I

Immigrant & Refugee Appellate Center, LLC | www.irac.net

VAHANYAN, MAKUCH
123 WEST LOMITA, APT. 7
GLENDALE, CA 91205

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.UNITED STATES DEPA RTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
. iMMIGRATION COU RT
LOS ANGELES, CALIF O RN

.
DATE

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CASE NO.
DECISION

RESPONDENT IN REMOVAL P ROCEEDINGS

Jurisdiction was established in this matter by the filing ofthe Notice to Appear issued by the Immigration and
Naturalization Service, with the Executive Office for Immigration Review and by service upon the respondent.
See 8 C.F.R. sections 3.14(a), 103.Sa.
The Respondent was provided written notification ofthe time, date and location ofthe respondent's removal
hearing. The respondent was also provided a written warning that failure to attend this hearing, for other than
exceptional circumstances, would result in the issuance ofan order of removal in the respondent's absence
provided that removability was established. Despite the written notification provided, the respondent failed to
appear at his/her hearing, and no exceptional circumstances were shown for his/her failure to appear. This hearing
was, therefore, conducted in absentia pursuant to section 240(b)(5)(A) of the Immigration and Nationality Act.
]

At a prior hearing the respondent admitted the factual allegations in the Notice to Appear and
conceded removability. I find removability established as charged.

ThLi.q

submitted documentary evidence relating to the

respondent which established the truth oftlie factual allegations contained in the Notice to
Appear. I find removability established as charged.

I further find that the respondent's failure to appear and proceed with any applications for relieffrom removal
constitutes an abandonment ofany pending applications and any applications the respondent may have been
eligible to file. Those applications are deemed abandoned and denied for lack of prosecution. See Matter of
Pearson, 13 I&N Dec. 152 (BIA 1969); Matter ofPerez, 19 I &N Dec. 433 (BIA 1987); Matter of R-R, 20 l&N
,
Dec. 547 (BIA 1992).
ORDE R: The spondent shall be removed to
9,1.tei=Aa&ir.re ta.
On the charge
contained in the Notice _to Appear.

A(

yY\tJltt

Immigration Judge

Custodial Officer
BY:COURT STAFF.J-\-z:s#-1...
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Immigrant & Refugee Appellate Center, LLC | www.irac.net

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
606 SOUTH OLIVE ST.
LOS ANGELES, CA 90014

IN THE MATTER OF
VAHANYAN, MAKUCH

FILE A 097-109-203

DATE: Dec 22, 2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c)(3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6),
8 U.S.C. SECTION 1229a(c)(6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
606 SOUTH OLIVE ST.
LOS ANGELES, CA 90014
OTHER:

COURT

CC:

CBm J}f()

IMMIGRATION COURT

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Immigrant & Refugee Appellate Center, LLC | www.irac.net

Law Offices of Peter A. Hosharian

Hosharian, Peter
1101 N. Pacific Ave
Suite 200
Glendale, CA 91202

:.q;p;..

--
. UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
A097 109 203

In the Matter of:

VAHANYAN,MAKUCH
RESPONDENT
APPLICATION:

)
)
)
)
)
)
)
)
)

IN REMOVAL PROCEEDINGS

Motion to Reopen
ON BEHALF OF DHS:
Heather Libeu, Assistant Chief Counsel
Department of Homeland Security
606 S. Olive St., Eighth Floor
Los Angeles, CA 90014

ON BEHALF OF RESPONDENT:
Peter A. Hosharian, Esquire
Law Offices of Peter A. Hosharian
1101 N. Pacific Ave., Ste. 200
Glendale, CA 91202

The respondent has filed a motion to reopen his proceedings and to rescind the order of
removal entered against him in absentia on June 19, 2014.
Because the respondent's claim is based on lack of notice, there is no time limit for filing a
motion to reopen. In his motion, the respondent claims that he never received a Notice to Appear
and only learned ofthe Notice to Appear in his case after he was detained by the DHS on December
1, 2014. This claim is an outright fabrication. The record is clear that on January 10, 2014, the
respondent personally received the Notice to Appear, which bears his signature in acknowledgment
of its receipt. Ex. 1. The respondent was therefore on notice ofhis obligation to provide an address
at which he could be contacted, and his obligation to update the Court of any address changes. See
INA 239(a)(l )(F). The address listed on the respondent's Notice to Appear is "123 West Lomita,
Apt. 7, Glendale, California 91205." Ex. 1. On June 3, 2014, the Court mailed a notice ofhearing to
the West Lomita address listed on the Notice to Appear, directing the respondent to appear for a
master calendar hearing on June 19, 2014. Although the respondent alleges that he was living at a
different address than the one listed on the Notice to Appear and that he never received the notice of
his hearing, the Court finds that because the notice of hearing was mailed to the respondent's most
recent address ofrecord, the respondent can be charged with constructive notice ofhis June 19, 2014
hearing. See INA 240(b)(5)(A); Matter ofG-Y-R-, 23 I&N Dec. 181, 185 (BIA 2001). Thus, the
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File:

-
Court finds that the rspondent received legally sufficient notice of his June 19, 2014 hearing.

The Court finds this motion to be meritless, and it will be denied for the aforementioned
reasons.
Accordingly, the motion to reopen filed by the respondent is hereby DENIED.

I()' (td- - 'i

Date:

CERTIFICATE OF SERVICE
THIS DOCUMEN};WAS SERVED BY:
11) MAIL (M) { PERSONAL SERVICE (P)
TO: { ] ALIEN [ ] ALIEN c/o Custodial Offiet1r
[d\l )\Ll'S ATT/REP
DATE: ,g,\Oc) \t.& sv: couRT sVAFF
[ ] EOIR-28
Attachments: [ l EOIR-33
1V'3 OtherE,dV
[ ] Legal Services List

Brett M. Parchert
Immigration Judge

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Nor has the respondent demonstrated exceptional circumstances that warrant the reopening
and rescission of an in absentia removal order. See 8 C.F.R. 1003.23(b)(4)(ii). Exceptional
circumstances refer to situations beyond the respondent's control, including the serious illness ofthe
respondent, the serious illness or death of the respondent's spouse, child or parent, but not including
less compelling circumstances. 8 C.F .R. 1003 .23(b)(4)(iii). In his motion, the respondent alleges
that in April 2014, he went to the Immigration and Customs Enforcement office, and an officer
instructed him to return to the office on December 1, 2014. He includes the sworn declaration ofthe
respondent's mother to corroborate this information. Nevertheless, even if these events actually
occurred, they do not excuse the respondent's failure to appear. As mentioned above, the respondent
was personally served with a Notice to Appear and was therefore on notice that he had been placed
in removal proceedings and of the consequences of failing to appear for hearings before the Court.
See INA 239(a)(5)(A). As such, the respondent's understanding of his hearing date was within his
control.

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