Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Platero-Rosales v. Garland (December 15, 2022) No. 20-60707 are as follows:

 

Case History

An Immigration Judge ordered the Petitioner removed in absentia (i.e. an order issued by an Immigration Judge in the absence of the individual whom the federal government is seeking to remove, deport or exclude from the United States).

 

The Petitioner filed a motion to reopen immigration court proceedings.

 

The Immigration Judge denied the Petitioner’s motion to reopen.

 

The Petitioner filed an appeal to the Board of Immigration Appeals (“BIA”).

 

The BIA affirmed the Immigration Judge’s denial of the Petitioner’s motion to reopen without issuing a separate opinion.

 

The Petitioner then filed a petition for review.

 

Facts

• The Petitioner is a native and citizen of El Salvador who entered the United States illegally in April 2005.
• Border officials immediately detained her and personally served her with a written notice to appear (“NTA”) that required her to appear before an Immigration Judge in Harlingen, Texas, at a date and time to be set.
• The NTA informed the Petitioner that she was required to provide border officials with her “full mailing address and telephone number” so that the United States could send her a notice of hearing.  The notice further stated that, “[i]f you do not . . . provide an address at which you may be reached during proceedings, then the Government shall not be required to provide you with written notice of your hearing” and “[i]f you fail to attend the hearing . . . a removal order may be made by the immigration judge in your absence.”
• Consequences for failure to appear were orally provided to the Petitioner in Spanish.
• The Petitioner never provided a mailing address.
• On the date of her hearing, the Immigration Judge ordered the Petitioner removed in absentia.
• Approximately 14 years later the Petitioner filed a motion to reopen.
• The Immigration Judge denied her motion to reopen.  
• The BIA affirmed the Immigration Judge’s decision without issuing a separate decision of its own.

 

Held

Petition for Review DENIED

Chief Judge Priscilla Richman issued a concurring opinion.

 

Rationale

The Petitioners asserted that her in absentia removal order is invalid because:

1. the government provided written notice of her duty to provide address information only in English, not Spanish; and
2. her NTA was defective for failure to contain the time and place of the initial hearing in accordance with section 239(a)(1)(G)(i) of the Immigration and Nationality Act, as amended (“the Act”).

 

The Fifth Circuit Court of Appeal reasoned as follows:

 

Notice Solely in English

• A Border Patrol agent verbally explained the Petitioner’s duty to appear at her removal hearing in Spanish.
• Nothing in the statute requires notice in any language other than English.  See section 239(a) of the Act.
• Furthermore, “[d]ue process allows notice of a hearing to be given solely in English to a non-English speaker if the notice would put a reasonable recipient on notice that further inquiry is required.” Ojeda–Calderon v. Holder, 726 F.3d 669, at 675 (5^th Cir. 2013).  This due process condition is obviously met when an individual is presented with a document from a United States border official concerning the individual’s eligibility to enter and remain in the country.
• Therefore, the Petitioner has no legal basis to complain that her notice to appear was in English.

 

Defective NTA

• Before an alien may be subject to removal proceedings under section 240 of the Act (including in absentia removal proceedings under section 240(b)(5) of the Act) the government must provide the alien with “notice to appear.”  See section 239(a)(1) of the Act.
• In addition to other specifications, the NTA must inform that the alien must provide the government “with a written record of an address and telephone number (if any) at which the alien may be contacted during proceedings . . ..”  See section 239(a)(1)(F) of the Act.
• Finally, the notice must provide the time and place of the hearing.  See section 239(a)(1)(G)(i).
• It is undisputed that the Petitioner’s NTA did not provide notice of the date and time of the hearing.
• However, “No written notice shall be required under subparagraph (A) if the alien has failed to provide the address required under section 239(a)(1)(F).”  See section 240(b)(5)(B) of the Act.  See also Hernandez-Castillo v. Sessions, 875 F.3d 199, a 205 (5^th Cir. 2017) (“When an alien fails to provide a viable mailing address to [the Department of Homeland Security], the government need not provide notice of the alien’s hearing.”); Gomez-Palacios, 560 F.3d at 360–61 (“[A]n alien’s failure to receive actual notice of a removal hearing due to his neglect of his obligation to keep the immigration court apprised of his current mailing address does not mean that the alien ‘did not receive notice’ under § 1229a(b)(5)(C)(ii).”).
• The government can’t provide the Petitioner with the required notice if she refuses to provide the government with her address.
• Therefore, the Petitioner forfeited her right to notice and “cannot seek to reopen the removal proceedings and rescind the in absentia removal order for lack of notice.” Spagnol-Bastos v. Garland, 19 F.4^th 802, at 806 (5^th Cir. 2021).  See also Gudiel-Villatoro v. Garland, 40 F.4^th 247, at 249 (5^th Cir. 2022) (holding that the rule that “an alien may move . . . to reopen and rescind his in absentia removal order if the notice to appear that did not include all of the information in 8 U.S.C. §1229(a)(1), including the time and dzate of his removal hearing . . . . does not apply when the alien fails to provide an address where he can be reached”).

 

Commentary

 

Concurring Opinion

Chief Judge Priscilla Richman wrote a concurring opinion in anticipation of what some might perceive “to be a conflict among this court’s decisions,” comparing Gudiel-Villatoro v. Garland, 40 F.4th 247 (5th Cir. 2022) and Spagnol Bastos v. Garland, 19 F.4th 802 (5th Cir 2021) with Rodriguez v. Garland, 15 F.4th 351 (5^th Cir. 2021).

In particular, Chief Judge Richman focuses on whether a defective NTA that does not include all of the specifications in section 239(a)(1) of the Act, including the time and date of the removal hearing, is sufficient to notify the NTA recipient of the address requirement and of the consequences of the failure to provide an address referenced in section 239(a)(1)(F) of the Act. 

In other words, Chief Judge Richman addresses the potential objection that if a defective NTA that does not include the time and date of the initial removal hearing is insufficient notice which allows for reopening and rescinding an in absentia order the defective NTA should also be insufficient to convey notice of the address requirement and the consequences of failure to comply.  See Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021) (holding that under section 240(b)(5)(C)(ii) of the Act, an in absentia removal order may be rescinded upon a motion to reopen filed at any time if the alien demonstrates receipt of a defective NTA that does not contain the time and place of the initial removal hearing in accordance with section 239(a)(1)(G)(i) of the Act).

Chief Judge Richman declares in her concurring opinion that providing the alien with a proper NTA that must necessarily include the time and place of a removal hearing, is not a prerequisite to the applicability of section 240(b)(5)(B) of the Act.

In particular, Chief Judge Richman points out that section 240(b)(5)(B) of the Act  does not say that a “notice to appear,” with all of the requirements “specif[ied]” by 239(a)(1) of the Act, which are contained in subsections (A) through (G), must be given as a prerequisite to the application of section 240(b)(5)(B) of the Act.  According to Chief Judge Richman, section 240(b)(5)(B) of the Act says that “if the alien has failed to provide the address required under section 239(a)(1)(F),” then no written notice from the government as described in section 240(b)(5)(A) is required.

Sections 239(a)(1) and 240(b)(5) cross reference each other which creates the a zig zag effect making it difficult to stay on the trail to a satisfactory interpretation without losing the sense of direction that Congress intended (regardless of what  position might be sought).

 

In Absentia Hearings

There is no appeal allowed in the case of an in absentia order.  Filing a motion to reopen is the only way to challenge an in absentia order.  See section 240(b)(5)(C) of the Act.  Motions to reopen hearings conducted in absentia account for a relatively large number of motions filed in immigration court. 

The requirements of a motion to reopen and rescind an in absentia removal order are as follows:

1. The motion must be filed within 180 days after the date of the removal order if the alien is seeking to demonstrate exceptional circumstances (defined under section 240(e)(1) of the Act) for failure to appear; or
2. The motion may be filed without any time limit if the alien is seeking to demonstrate insufficient notice under section 239(a)(1) and (2) of the Act.

In my experience, in absentia hearings seemed numerous.  Consequently, motions to reopen in absentia hearings accounted for a relatively large number of motions filed in immigration court.  More recently with historic increased numbers of aliens without visas or permission to enter the United States being encountered and released at the southern border of the United States with Mexico, a commensurate increase of in absentia hearings seems likely.

The primary challenge for DHS attorneys moving to proceed in absentia is to establish proof of service of the hearing notice to the last address provided by the respondent (i.e. the individual who is the subject of removal proceedings), as required in section 239(a)(1)(F) of the Act.  See section 240(b)(5) (A) of the Act.  Then, of course, the DHS attorney needs to prove that the respondent is subject to removal.

In particular, to obtain an in absentia order, the DHS attorney must prove by clear, unequivocal, and convincing evidence not only that notice had been provided at the last address provided by the respondent, but that the allegations and charge(s) on the NTA are true.  See section 240(b)(5)(A) of the Act.

To the surprise of some readers (and also Executive Office For Immigration Review (“EOIR”) administrators) properly conducting in absentia hearings consumes a significant portion of time for Immigration Judges and DHS attorneys, apart from merit hearings in the presence of the respondent.

In light of Rodriguez v. Garland, adjudication by termination of in absentia cases, at least in the 5^th Circuit, will be much less time consuming, because many NTAs lack the time and place of the initial hearing required by section 239(a)(1)(G)(i) of the Act. 

However, Platero-Rosales v. Garland seems to harden the resilience of in absentia orders to challenge with a motion to reopen.

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