A Guyanese man has lost his fight to remain resident in the United States, after failing to prove that notice for an asylum hearing, which he did not attend, was improperly served.
Lawrence Melchoir Fanfair showed very little interest in the matter and only made an attempt to reopen his asylum proceedings after he was arrested seven years later, an October 14, 2011 decision from the US Court of Appeals, Eleventh Circuit said.
According to the decision, records show that immigration officials detained Fanfair upon his arrival in the United States in 2003 and notified him that his application for asylum had been referred to an Immigration Judge (IJ). Following his release, he was served with a notice of an asylum hearing scheduled for May 2003, via mail to an address that was on file for him: “2 Stephens CT, Brooklyn, NY 11226-7514.” Fanfair did not attend his hearing and an IJ accordingly ordered his removal in absentia, the court papers said.
In 2010, he, however, filed a motion to reopen the proceedings before the IJ on the grounds that he never received the 2003 notice of hearing. He also provided a sworn affidavit indicating that the address he provided to immigration officials included an apartment number, whereas the notice of hearing included no such number.
Both the Board of Immigration Appeals (BIA) and IJ concluded that the affidavit was uncorroborated. It was explained in the decision that while the address listed in the notice of hearing could be explained by agency officials’ erroneous omission of an apartment number, Fanfair submitted no corroborating statement from an uncle who he claimed he lived with. He submitted no evidence beyond his “self serving statement to show that 2 Stephens Court even had apartments much less that he actually lived in Apt 1.” It was pointed out that it would not have been hard for Fanfair to do so, since he had been sentenced to probation for larceny in New York and would have had to produce an accurate address.
To further support the soundness of the decision, it was noted that Fanfair was personally served in 2003 with both a notice of referral and a notice of an earlier asylum hearing. Those notices had warned that if he did not appear for his asylum hearing he risked receiving an in absentia order of removal. The records did not reflect that he ever contacted agency officials to check on the status of his proceedings following his release but rather he waited until February 2010 to file a motion to reopen.
According to the decision, taking into consideration that Fanfair could file a motion at any time regarding improper notice and assuming it to be true that he did not know about the removal order until he was detained in 2009, the significant lapse without any proactive interest in his pending immigration proceedings detracted from his allegation that the notice was sent to the wrong address.
In the end, when his affidavit was considered against the contrary evidence, the BIA and IJ were not compelled to conclude that it was sufficient to overcome the presumption that the agency sent the notice to the right address.
