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Matter of Jorge Anyelo (PUB 9/13)

September 14, 2010

**MTR in absentia, notice**

The holding in Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001), as to the notice required to authorize the entry of an in absentia order, is applicable to cases arising in the Eleventh Circuit. The respondent indicates in his appeal that he received neither the NTA nor the notice of hearing– both documents were sent to the respondent through regular mail to the address that he acknowledges on appeal was the last address that he provided to the DHS. He states that he moved from that address in 2008, and he provided a change of address form to the post office.The 11th Circuit’s decision in Dominguez is inconsistent with Matter of G-Y-R-–the court in Dominguez never considered the holding in Matter of G-Y-R- that an address does not qualify as one provided under section 239(a)(1)(F) unless the notice with the necessary warnings and advisals was received at the most recent address provided. Accordingly, it is appropriate to apply Matter of G-Y-R- to cases arising in the Eleventh Circuit. The proceedings at issue here should be reopened. It is undisputed that the respondent did not receive the NTA, even though it was sent to his last known address, and that he did not update the DHS with his current mailing address after he moved in 2008. Notwithstanding, the respondent cannot be charged with getting adequate notice under Matter of G-Y-R-, because he did not receive the NTA containing the required warnings and advisals instructing him as to his obligations to advise the Attorney General (not merely the post office) of any change of address.

http://www.justice.gov/eoir/vll/intdec/vol25/3696.pdf

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