U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office ofthe Clerk

5107 Leesburg Pike. Suite 2000

Falls Church. V1rgm1a 22041

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vinikoor, robert daniel DHS/ICE Office of Chief Counsel - CHI
Minsky, McCormick & Hallagan, P.C. 525 West Van Buren Street
210 S. Clark Street, Suite 2025 Chicago, IL 60607
Chicago, IL 60603

Name: RYBICKI SAYEVYCH, OLGA A 200-142-210

Date of this notice: 4/1/2020

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Cassidy, William A.

Userteam: Docket

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Cite as: Olga Rybicki Sayevych, A200 142 210 (BIA April 1, 2020)
f U.S. Department of Justice Decision ofthe Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A200-l 42-2 l O - Chicago, IL Date: APR - 1 2020

In re: Olga RYBICKI SAYEVYCH

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IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Robert D. Vinikoor, Esquire

APPLICATION: Reconsideration

This matter was last before the Board on December 30, 2019, when we affirmed without
opinion the Immigration Judge's May 10, 2018, decision denying the respondent's timely motion
to reopen and rescind the in absentia order of removal. On January 28, 2020, the respondent filed
a timely motion to reconsider, which is also in the nature of an untimely and number-barred motion
to reopen and rescind the in absentia order of removal based on lack of notice. The Department
of Homeland Security (OHS) has not responded to the respondent's motion. The motion will be
granted and the record will be remanded.

In reviewing the record in light of the current allegations, the respondent's affidavit, the
respondent's prior counsel's affidavit, and Board precedent, we find that there is a legitimate basis
to conclude that the respondent overcame the presumption of delivery regarding service of the
notice of her April 4, 2018, hearing. See Matter ofG-Y-R-, 23 l&N Dec. 181 (BIA 2001). We
conclude that the evidence of record sufficiently overcomes the presumption that the respondent
received the Notice of Hearing (NOH) sent to her counsel by regular mail and that her removal
proceedings should be reopened. Specifically, the digital audio recording reflects that the
respondent's counsel was not on the line when the date for the next hearing was announced on the
record. 1 Moreover, the NOH for the April 4, 2018, hearing in the file contains an omission in the
respondent's counsel's address that was not present in prior NOHs, i.e. it does not contain the word
"street" after the number and street name for counsel's address (Exh. 2). 2 Also, as counsel points
out, it does not contain a completed certificate of service attesting to the date and manner of service
of the NOH on the respondent's counsel (Motion at 5). Therefore, we will grant the motion to
reopen and remand proceedings to provide the respondent an opportunity to apply for any available
relief.

1
According to the Immigration Judge's statement on the record, he contacted the respondent's
counsel via telephone prior to going on the record.
2
It appears that the prior NOH for the February 6, 2018, hearing also contains the omission of the
word "street." We note that the respondent's counsel and respondent failed to appear for this
hearing as well and the respondent's counsel asserted that she did not receive this NOH either
(IJ at 2). The Immigration Judge then verified her address and reset the hearing for April 4, 2018.

Cite as: Olga Rybicki Sayevych, A200 142 210 (BIA April 1, 2020)
A200-142-210

Accordingly, the following orders shall be issued.

ORDER: The motion to reopen is granted.

FURTHER ORDER: The prior decisions are vacated.

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

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

kL

Cite as: Olga Rybicki Sayevych, A200 142 210 (BIA April 1, 2020)