Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Wilmer Gudiel-Villatoro v. Garland  (July 8, 2022) No. 20-61050 are as follows:

 

Case History

 The Department of Homeland Security (“DHS”) served the Petitioner with a notice to appear (“NTA”).

 

An Immigration Judge ordered petitioner removed in absentia (i.e. an order issued in a removal hearing conducted in the respondent’s absence).

 

The Petitioner moved to reopen proceedings and rescind his in absentia order.

 

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

 

The Petitioner appealed denial of his motion to reopen to the Board of Immigration Appeals (“BIA”).

 

The BIA dismissed the Petitioner’s appeal.

 

The Petitioner then filed a petition for review of the BIA’s decision.

 

Facts

• The Petitioner is a native and citizen of Guatemala who crossed the Texas border into the United States on May 10, 2005.
• The DHS apprehended the Petitioner on May 11, 2005 and charged that he was subject to removal under section 212(a)(6)(A)(i) of the Immigration and Nationality, as amended (“the Act”) as an alien who is present in the United States without being admitted or paroled.
• The NTA with which the DHS personally served the Petitioner ordered him to appear in immigration court for his removal hearing “on a date to be set at a time to be set.” The NTA further stated that the Petitioner was required to provide an address at which he can be reached, that failure to provide an address waives an entitlement to notice of the removal hearing, and that failure to attend the removal hearing could result in removal in absentia.
• Although the Petitioner admitted to providing a false name and country of origin reflected on the NTA, the NTA also contained the Petitioner’s fingerprint and signature.
• The Petitioner then moved to Connecticut without providing an address.
• On June 14, 2005, an Immigration Judge ordered petitioner removed in absentia.
• More than fourteen years later, the Petitioner filed a motion to reopen removal proceedings and rescind his in absentia order which was denied by the Immigration Judge.
• The BIA dismissed the Petitioner’s appeal from the denial of his motion to reopen and he filed a petition for review of the dismissal of his appeal.

 

Held

Petition for Review DENIED

 

Rationale

In his petition for review, the Petitioner claimed that he did not receive adequate notice of his removal proceedings.

In particular, the Petitioner asserted that his NTA was deficient because it did not include the date and time of his removal hearing.

The Petitioner further alleged that the BIA failed to consider evidence, including his own affidavit, which explained in general that he did not receive adequate notice of his removal proceedings.

Resorting to the highly deferential abuse-of-discretion standard articulated in Zhao v. Gonzales, 404 F.3d 295, at 303, 304 (5th Cir. 2005). (The BIA’s decision will be upheld unless it is “capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.”) the Fifth Circuit Court of Appeal reasoned as follows:

• The rule following the United States Supreme Court’s decision in Niz-Chavez v. Garland and the Fifth Circuit Court of Appeal decision in Rodriguez v. Garland that an alien may move “at any time” to reopen and rescind his in absentia removal order if the notice to appear did not include the time and date of his initial removal hearing does not apply if the alien fails to provide an address where he can be reached.
• An alien “forfeits his right to notice by failing to provide a viable mailing address” 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.4th 802, at 806 (5th Cir. 2021).
• The Petitioner did not provide any address.  Therefore, he may not reopen his removal proceedings on the ground that the date and time of his initial removal proceeding were not included in his NTA.
• Contrary to petitioner’s assertions to the contrary, the BIA considered the totality of the record before determining that he received proper notice.
• Specifically, the BIA:
  1. recognized that the NTA contained petitioner’s fingerprint and signature;
  2. it credited the statement on the Form I-213 that petitioner was given the NTA and told that he must provide an address;
  3. acknowledging petitioner’s birth certificate, it observed that petitioner admitted to providing the false name and country of origin reflected on the NTA.

• Thus, the BIA’s review clearly satisfied its obligation to “consider the issues raised and announced its decision in terms sufficient to enable a reviewing court to perceive that it had heard and thought and not merely reacted.” Efe v. Ashcroft, 293 F.3d 899, at 908 (5th Cir. 2002) (quoting Becerra-Jimenez v. INS, 829 F.2d 996, at 1000 (10th Cir. 1987)).

 

Commentary

In Wilmer Gudiel-Villatoro v. Garland at pp. 3, 4 (July 8, 2022) No. 20-61050 the Fifth Circuit Court of Appeal took pains to specifically note that an alien has not provided a “viable mailing address” when 1) he fails to provide any address, 2) neglects to update an old address, or 3 fails to correct an erroneous address.  See Hernandez-Castillo v. Sessions, 875 F.3d 199, at 202, 206 (5th Cir. 2017); Gomez-Palacios v. Holder, 560 F.3d 354, at 357, 360–61 (5th Cir. 2009); and Mauricio-Benitez v. Sessions, 908 F.3d 144, at 148–49 (5th Cir. 2018), respectively.

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 irrelevant insufficient notice based on a deficient NTA that does not include the time and place or the initial removal hearing, in spite of the United States Supreme Court decision in Niz-Chavez v. Garland.  

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.

In particular, the BIA has held that an alien who is seeking the favorable exercise of sua sponte authority must demonstrate the existence of an “exceptional situation” that warrants reopening.  Matter of Beckford, 22 I&N Dec. 1216 (BIA 2000).

The BIA declared in Matter of G-D-, 22 I&N Dec. 1132, at 1133-1134 (BIA 1999) that: 

As a general matter, we invoke our sua sponte authority sparingly, treating it not as a general remedy for any hardships created by enforcement of the time and number limits in the motions regulations, but as an extraordinary remedy reserved for truly exceptional situations.

You might get lucky with a motion for sua sponte exercise of discretion, 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. 

Making material misrepresentations, however, such as providing a false name and country of origin to government officials, in practical application offsets the weight that is likely to be assigned to equities that might justify an "exceptional situation" to obtain a favorable exercise of discretion by administrative decision makers.

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