These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
notice
The Fifth Circuit has determined that a non-citizen’s declaration alone is not sufficient to compel the agency to reopen a removal order based on lack of receipt of the notice of hearing.
The full text of Luna v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/21/21-60195-CV0.pdf
Two years ago, the Ninth Circuit determined that a court may not issue an in absentia removal order when the Notice to Appear is missing the time and date of the first removal hearing. “We grant Singh’s petition and hold that noncitizens must receive a Notice to Appear in a single document specifying the time and date of the noncitizen’s removal proceedings, otherwise any in absentia removal order directed at the noncitizen is subject to rescission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii).” The court rejected the Board’s contrary determination in Matter of Laparra.
The full text of Singh v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/04/20-70050.pdf
On remand from the Supreme Court (which rejected the Ninth Circuit’s analysis about the implications of a Notice to Appear missing the first hearing information as it relates to issuance of an in absentia removal order), the Ninth Circuit again remanded this petition for review to the agency, noting the agency failed to consider the totality of the circumstances, including his eligibility for relief, the advancement of his hearing date by the court system, and the role his attorney played.
An updated decision can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/17/20-70050.pdf
The Eleventh Circuit has affirmed the agency’s refusal to reopen proceedings for a non-citizen who did not correct an erroneous address on the Notice to Appear.
The full text of Rosales-Mendez v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202213164.pdf
The First Circuit has determined that serving the attorney who filed a VAWA self-petition with notice of intent to revoke the approval of that petition is sufficient to provide notice the applicant of the intended revocation. The full text of Manguriu v. Garland can be found here:
The Ninth Circuit has remanded a motion to reopen filed by a pro se applicant who missed her first hearing, and contacted the immigration court within a week to inquire about her in absentia hearing. The court found that the applicant’s statements of non-receipt of the hearing notice were entitled to credibility in the absence of contrary evidence.
The full text of Perez-Portillo v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/30/20-73486.pdf
The Eleventh Circuit has held that a putative NTA (missing the date and time of an initial removal hearing) does not preclude an in absentia order if the hearing was rescheduled, and a notice of the rescheduled hearing was sent to the last known address. In this case, the petitioner did not receive that hearing notice because he moved without notifying the court. The court recognized that its interpretation created a circuit split with the Ninth Circuit.
The full text of Dacostagomez-Aguilar v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202013576.pdf
The Fifth Circuit has again refused to reopen proceedings for a petitioner who failed to give a proper address, even though the Notice to Appear was missing information about the first hearing. “And this court has held that an alien has not provided a “viable mailing address” when he fails to provide any address, neglects to update an old address, or fails to correct an erroneous address.”
The full text of Gudiel-Villatoro v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/20/20-61050-CV0.pdf
The Ninth Circuit has determined that a court may not issue an in absentia removal order when the Notice to Appear is missing the time and date of the first removal hearing. “We grant Singh’s petition and hold that noncitizens must receive a Notice to Appear in a single document specifying the time and date of the noncitizen’s removal proceedings, otherwise any in absentia removal order directed at the noncitizen is subject to rescission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii).” The court rejected the Board’s contrary determination in Matter of Laparra.
The full text of Singh v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/04/20-70050.pdf
On remand from the Supreme Court (which rejected the Ninth Circuit’s analysis about the implications of a Notice to Appear missing the first hearing information as it relates to issuance of an in absentia removal order), the Ninth Circuit again remanded this petition for review to the agency, noting the agency failed to consider the totality of the circumstances, including his eligibility for relief, the advancement of his hearing date by the court system, and the role his attorney played.
An updated decision can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/17/20-70050.pdf
The Board of Immigration Appeals has determined that an in absentia removal order need not be reopened when the respondent was served with a Notice to Appear missing the time and date of the first hearing, but also served with a Notice of Hearing containing that information. The Board acknowledged that its decision is inconsistent with the Fifth Circuit’s recent decision in Rodriguez v. Garland.
The full text of Matter of Laparra can be found here:
The Fifth Circuit has determined that the statute did not require Orders to Show Cause to include the time and location of a first deportation hearing, and thus, the lack of this info does not require reopening an in absentia deportation order.
The full text of Maradia v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/20/20-60714-CV0.pdf
The Ninth Circuit has determined that an adjustment of status applicant was not given adequate notice that his past claims to citizenship could render him inadmissible and ineligible for permanent residence.
“We hold that Flores-Rodriguez was not put on notice that his alleged false claim of citizenship would be at issue in his 2014 hearing.” “At Flores-Rodriguez’s 2012 preliminary hearing, the IJ discussed false claims of citizenship only in the context of a possible DHS charge, telling him that if such a charge were sustained, he would not be eligible for adjustment of status. At Flores-Rodriguez’s 2013 preliminary hearing—during which the final IJ hearing was scheduled—the issue was not raised at all. In sum, by the time Flores-Rodriguez had his final hearing in 2014, his alleged false claim of citizenship had not been raised by the IJ for two years, and the last time it had been discussed the IJ implied it would only be dispositive if DHS sustained a false claim of citizenship charge against him. DHS never even brought such a charge.”
The full text of Flores-Rodriguez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/19-70177.pdf
The Board of Immigration Appeals has determined that rescission of an in absentia order is not warranted when a non-citizen was personally served with the Notice to Appear, failed to correct a typo in the address provided to the Immigration Court, and who waited 18 years to file his motion to reopen. “Even assuming that the respondent inadvertently provided the incorrect spelling of the city name, he was on notice that he had a duty to correct his address information and to properly notify the Immigration Court where he could receive notice. Inherent in the concept of notice is the implicit obligation that the intended recipient must provide the information necessary for the notice to be received.” “Since the respondent was clearly advised that he was required to provide a correct address to the Immigration Court and failed to do so, we conclude that he received constructive notice of his scheduled hearing, even if he did not receive actual notice of it.”
The full text of Matter of Nivelo Cardenas can be found here:
The Ninth Circuit has determined that absent any prejudice to the Government, a premature petition for review of an immigration order may ripen upon final disposition of the case by the Board of Immigration Appeals (Board). In the instant case, the petitioner filed a motion to reopen with the Immigration Judge (IJ), which the IJ denied, and the petitioner appealed to the Board. Before the Board issued its decision, the petitioner filed a petition for review with the Ninth Circuit. The Board issued a decision dismissing the appeal before it approximately two months later. The court concluded that “the jurisdictional defect in filing the petition was cured by a final judgment from the [Board] before this court had considered any aspect of the petition, and the Government has shown no prejudice resulting from the premature filing.”
In addition, the court determined that the Board abused its discretion in denying an appeal of an IJ denial of a motion to reopen, where the IJ in the underlying removal proceeding ordered the petitioner removed in absentia on the basis of an amended notice to appear of which she did not receive proper notice. “The written notice requirement of an in absentia removal order applies both to the charges and conduct alleged and the date and time of the removal hearing.” “Because the record provides no evidence of proper service of the amended NTA, as required by due process, and the IJ ordered Diaz Martinez removed based on admissions to the charges for which she did not receive notice, the in absentia removal order was not supported by substantial evidence.” “The amended NTA, however, replaced the underlying factual allegations that the Government lodged against her.”
The full text of Diaz Martinez v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/30/17-72186.pdf
The Ninth Circuit has limited the circumstances in which an Order to Show Cause served on a minor must also be served on a responsible adult. Previously, the court had held in Flores-Chavez v. Ashcroft that when immigration authorities detain a juvenile, and subsequently release the juvenile to a responsible adult, the Order to Show Cause must also be served on that adult. However, the court determined that the same rule does not apply when the minor was never detained, files for asylum, and is subsequently served with an Order to Show Cause.
“Nonetheless, the calculation differs here, and not just because Petitioner is slightly older than Flores-Chavez was. Petitioner himself set in motion the procedures leading to his hearing by filing an affirmative asylum application and by appearing before an asylum officer. These facts suggest that the risk of error in Petitioner’s situation is less than the risk of error in Flores-Chavez’ situation. More importantly, no adult ever entered an agreement with the government to assume responsibility for Petitioner. It is unclear with whom Petitioner lived at the time of his deportation hearing, including whether anyone at his residence was over the age of 18. It is equally unclear that notice to an adult living at his residence (if there was one) would have added any safeguards to the process, because we cannot know whether that adult would have been willing to take the kind of responsibility that was statutorily assigned in Flores-Chavez. Without researching the details of every minor’s situation, it is impossible to know whether a particular minor over the age of 14 resides with an adult and if so, whether serving the OSC on that adult will be any more effective in ensuring the minor’s attendance at the hearing than serving notice on the minor.” “Requiring the government to provide notice to a responsible adult living with a never-detained juvenile over the age of 14 assumes that there is such a person and that the person can be identified.” “Balancing all the factors, the burden on the government outweighs the interest of never-detained minors over the age of 14, at least those who have filed an affirmative request for relief.”
The full text of Cruz Pleitez v. Barr can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/18/15-72876.pdf
The Fifth Circuit has determined that an immigration in immigration court proceedings has an obligation to provide a US-based address to which the immigration court can send notices of hearing. The court has no obligation to mail a notice to a foreign address.
The full text of Ramos-Portillo v. Barr can be found here:
http://www.ca5.uscourts.gov/opinions/pub/17/17-60254-CV0.pdf
The Fifth Circuit has determined that a respondent, who had been served with an NTA, but whose NTA had not yet been filed with the Court, met her obligation to change her address by notifying ICE of the new address. “Because ICE is now responsible for providing the alien’s address to the immigration court when it files the NTA, we read 8 U.S.C. §1229, through the lens of 6 U.S.C. § 557, to require the alien to provide a change of address to ICE at least until the NTA has been filed with the immigration court.”
The full text of Fuentes-Pena v. Barr can be found at:
http://www.ca5.uscourts.gov/opinions/pub/17/17-60637-CV0.pdf
The Fifth Circuit has revisited whether it has jurisdiction to review the denial of a motion to reopen baed on lack of notice when the Department of Homeland Security has reinstated that order. The court concluded that it does have jurisdiction to review, and that the petitioner need not show a gross miscarriage of justice to trigger that jurisdiction.
The court withdrew its previous opinion in this matter and replaced it with the current opinion. The full text of the new opinion in Mejia v. Whitaker can be found here:
http://www.ca5.uscourts.gov/opinions/pub/16/16-60179-CV1.pdf
The petitioner was served with a Notice to Appear bearing an incorrect address - the name of his street was misspelled. The petitioner did not file a change of address form to correct the misspelling, though he claimed that he had provided the correct address to the immigration official. The Immigration Court mailed a notice of hearing to the misspelled address, the petitioner did not attend his hearing, and he was order removed in absentia. He later moved to reopen his proceedings, and his motion was denied.
The Fifth Circuit affirmed the agency’s decision. “An alien’s statutory obligation to keep the immigration court apprised of his current mailing address includes an obligation to correct any errors in that address listed on the NTA.”
The full text of Mauricio-Benitez v. Sessions can be found here:
http://www.ca5.uscourts.gov/opinions/pub/17/17-60792-CV0.pdf
The Ninth Circuit has determined that the Immigration Judges and the Board of Immigration Appeals have the authority to reopen an in absentia removal order based on lack of notice even after the Department of Homeland Security reinstates the order.
The full text of Miller v. Sessions can be found here:
The Fifth Circuit has rejected a petitioner's claim that she received legally insufficient notice of her court hearing. The envelope bearing the notice of hearing was returned to the Court with a notation that the petitioner did not live at that address. The Court rejected the argument that delivery of a notice of hearing is improper unless signed by the alien or a responsible person at the alien’s address. "There is no requirement in our caselaw that an alien (or a responsible member of the alien’s household) actually view or sign a notice of hearing delivered to the address provided by the alien."
The full text of Garcia Nunez v. Sessions:
http://www.ca5.uscourts.gov/opinions/pub/16/16-60140-CV0.pdf
