Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

On December 3, 2021, the Fifth Circuit Court of Appeal published a decision in which it determined that a respondent (i.e. an individual subject to removal proceedings) who fails to provide an address at which the respondent may be contacted respecting removal proceedings, as required under section 239(a)(1)(F) of the Act, forfeits right to notice under section 240(b)(5)(B) of the Act and may not seek to reopen removal proceedings and rescind an in absentia removal order.

The procedural history, facts of record, holding and rationale in Manoel Jose Spagnol-Bastos v. Garland, (5th Cir. December 3, 2021) No. 20-60139 are as follows:

 

Case History

The Petitioner moved to reopen his removal proceedings and to rescind the in absentia removal order on the basis that he did not receive actual written or oral notice of his removal hearing.

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

The Petitioner appealed to the Board of Immigration Appeals (“BIA”).

The BIA dismissed the appeal.

The Petitioner filed a petition for review by the Fifth Circuit Court of Appeal.

 

Facts

The Petitioner is a native and citizen of Brazil who entered the United States without inspection approximately in 2001.

Officers of the former Immigration and Naturalization Service (“INS”) served the Petitioner with a notice to appear (“NTA”), charging him under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as amended (“the Act”) as a removable alien not admitted or paroled into the United States.

The INS officers advised the Petitioner that he must provide immigration officials with a current mailing address so the government could contact him regarding his impending removal hearing, and informed him about the consequences for failure to appear (i.e. that if he failed to appear he would be ordered removed in his absence).

The NTA did not indicate when the hearing would occur, but stated that the Petitioner must appear at a time and date “to be set.”

Before the Petitioner was released, he allegedly told immigration officials that his address would be “102-169 F Apt 3C, Manhaion N.Y. N.Y. 10029.”

An INS officer sent an alien address notification (i.e. Form I-830) containing the address provided by the Petitioner to the immigration court.

The immigration court then mailed a notice of hearing to the address that appeared in the Form I-830.

The notice of hearing, however, was returned “unclaimed” to the immigration court.

The Petitioner did not attend his removal hearing and the immigration judge ordered him removed in absentia.

About eighteen years later, the Petitioner moved to reopen his removal proceedings and to rescind the in absentia removal order because he did not receive actual written or oral notice of his removal hearing.

The Petitioner supported his motion with an affidavit stating that he gave immigration officials a different address than the one listed on the Form I-830, namely, “169 East 102nd Street, #3C, New York, 10029.”

According to the Petitioner, he lived at that address for several years and never received any communication from the immigration court about his hearing.  Moreover, the Petitioner asserted that the immigration officer who wrote the address on the Form I-830 “made an error and mistook 169 East 102 Street for 102-169, and Manhattan for Manhaion.”

The Immigration Judge rejected the Petitioner’s affidavit testimony as untrustworthy.

Held

Petition for Review DENIED

Rationale

The Petitioner asserted two arguments, as follows:

1. the BIA abused its discretion by concluding that he forfeited his right to notice of the court hearing; and
2. the BIA committed error by concluding that the Petitioner is prima facie ineligible for cancellation of removal.

With regard to forfeiture of the Petitioner’s right to notice of hearing, the Fifth Circuit Court of Appeal reasoned as follows:

• The government satisfies its burden of showing notice if it mails notice to the most recent address provided by the alien under section 239(a)(1)(F) of the Act.  See section 240(b)(5)(A) of the Act.
• If the alien fails to provide such an address, however, then “[n]o written notice shall be required.” See section 240(b)(5)(B) of the Act.
• Although according to section 240(b)(5)(C)(ii) of the Act, an Immigration Judge may rescind an in absentia removal order if proper notice was not received in accordance with paragraph (1) or (2) of section 239(a) of the Act, an alien who forfeits right to notice by failing to provide a viable mailing address cannot seek to reopen the removal proceedings and rescind an in absentia removal order for lack of notice. See Mauricio-Benitez v. Sessions, 908 F.3d 144, at 149 (5th Cir. 2018); Hernandez-Castillo v. Sessions, 875 F.3d 199, at 205 (5th Cir. 2017).
• Using the substantial evidence test codified under section 242(b)(4)(B) of the Act, under which the court does not overturn factual findings unless the evidence “compels a contrary conclusion,” the Immigration Judge’s rejection of the Petitioner’s affidavit testimony as untrustworthy and finding that the Petitioner provided immigration officials with a deficient address cannot be disturbed.
• Therefore, the Petitioner forfeited his right to notice under section 240(b)(5)(B) of the Act and cannot seek to reopen his removal proceedings and rescind the removal order.

See Manoel Jose Spagnol-Bastos v. Garland, at pp. 5, 6 (5th Cir. December 3, 2021) No. 20-60139.

With regard to eligibility for cancellation of removal based on failure of a defective NTA that does not contain the time and place of the initial removal hearing to stop accrual of 10 years continuous physical presence in the United States governed by United States Supreme Court decisions in Pereira v. Sessions, 138 S. Ct. 2105 (2018) and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), and recent Fifth Circuit Court of Appeal precedent in Marcelo Eugenio Rodriguez, aka Marcelo Rodriguez Andueza v. Garland, (5th Cir. September 27, 2021) No. 20-60008, the Fifth Circuit Court of Appeal reasoned that:

• In his opening brief to the court, the Petitioner conceded that Fifth Circuit Court of Appeal precedent foreclosed his cancellation of removal argument and he did not present any affirmative argument for why he is prima facie eligible for cancellation.
• After the parties completed briefing, the United States Supreme Court decided Niz-Chavez v. Garland which held that the stop-time rule is triggered only when the government serves the alien with a single notice containing all of the information listed in section 239(a) of the Act.
• The Petitioner failed to analyze the cancellation of removal theory in a meaningful way in his opening brief.  Thus, the argument is forfeited.
• The Petitioner’s reliance on Marcelo Eugenio Rodriguez, aka Marcelo Rodriguez Andueza v. Garland is misplaced because, unlike the Petitioner, Rodriguez provided immigration authorities with a viable mailing address and therefore did not forfeit his right to notice under section 240(b)(5)(B) of the Act.

Commentary

To be clear, according to Manoel Jose Spagnol-Bastos v. Garland, forfeiture of the right to notice triggered by failure of a respondent to provide a valid address to the government renders insufficient notice based on a deficient NTA that does not include the time and place or the initial removal hearing irrelevant, in spite of Niz-Chavez v. Garland.

The timing for the Petitioner in Manoel Jose Spagnol-Bastos v. Garland is unfortunate with regard to the issue of eligibility for cancellation of removal.  As noted by the Fifth Circuit Court of Appeal, the parties had completed briefing when the United States Supreme Court published Niz-Chavez v. Garland.  In his opening brief, the Petitioner had conceded ineligibility for cancellation of removal.  Consequently, the Petitioner forfeited his argument relating to eligibility for cancellation of removal, as well as his right to notice!

For the benefit of those who are new to motion practice in immigration proceedings, an Immigration Judge and the BIA can reconsider any order or disposition or reopen any proceeding that the respective decision maker issued sua sponte.  See 8 C.F.R. §§ 1003.23(b) and 1003.2(a).  For those readers who are unfamiliar with immigration law jargon, the term, “sua sponte,” is legalese meaning by spontaneous self-urging or recommendation.

The exercise of sua sponte authority, however, is purely discretionary.  Therefore, appellate courts might decline to review motion denials issued in the exercise of sua sponte authority.  See Heckler v. Chaney, 470 U.S. 821, at 830 (1985) ("[R]eview is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.").  See, also, Ramos-Bonilla v. Mukasey, 543 F.3d 216 (5th Cir. 2008); Anaya-Aguilar v. Holder, 683 F.3d 369, at 371-72 (7th Cir. 2012); Pllumi v. Attorney General of the United States, 642 F.3d 155, at 159-60 (3rd Cir. 2011) ("If . . . the BIA declines to exercise its sua sponte authority . . . in a manner that does not indicate a misunderstanding of its authority, then that decision will be unreviewable.); Gor v. Holder, 607 F.3rd 180, at 187-93 (6th Cir. 2010).

Nevertheless, a person who is subject to an in absentia order might, as a last resort, convince an Immigration Judge to reopen and rescind the order sua sponte based on new precedent case law that favorably affects eligibility for relief from removal and hopefully any other sympathetic facts. 

You might get lucky, but don’t count on it.  A change in the law (such as a new United States Supreme Court decision) cannot constitute “new facts” under section 240(c)(7)(B) of the Act to otherwise justify a motion to reopen.  Fredy Omar Gonzalez Hernandez, aka Fredy Omar Gonzalez v. Garland, at 8 - 11 (5th Cir. 2021) No. 19-60274.

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