Cardenas v. Garland
| Docket Number | 20-60778 |
| Decision Date | 02 June 2023 |
| Citation | 70 F.4th 232 |
| Parties | Jorge Vicente NIVELO CARDENAS, Petitioner, v. Merrick GARLAND, U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Petition for Review of an Order of the Board of Immigration Appeals Agency No. AXXX XX4 951 Vanessa E. Zwaik, Law Office of Vanessa Zwaik, West Babylon, NY, Nicholas Ratkowski, Contreras & Metelska, P.A., Saint Paul, MN, for Petitioner.
Jesse David Lorenz, Esq., Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Before Stewart, Dennis, and Southwick, Circuit Judges.
Petitioner challenges the Board of Immigration Appeals' denial of his motion to reopen removal proceedings and rescind his in absentia removal order. This challenge adds to our recent caselaw analyzing different supposed flaws in notice given to individuals about removal hearings. In this case, the original 1999 Notice to Appear given to Petitioner soon after being detained did not schedule his removal hearing. When Petitioner was released a few weeks later, he signed a form that gave the address at which future notices could be given. The address had one incorrect letter in the name of the city but was otherwise completely accurate. Petitioner was informed he must provide notice of any change of address. A few months later, notice of his scheduled hearing was sent to the slightly misspelled address. It was returned with the notation: "ATTEMPTED, NOT KNOWN." He did not attend the hearing and was ordered removed in absentia.
We conclude Petitioner forfeited his right to notice by failing to keep the immigration court apprised of his correct mailing address or to correct an erroneous address. We DENY his petition.
Jorge Vicente Nivelo Cardenas, a native and citizen of Ecuador, entered the United States without inspection on or about July 17, 1999. He was 25 years old. Soon after his entry, he was apprehended with others who had entered the country near Brownsville, Texas. On July 23, 1999, he was given a Notice to Appear ("NTA"), charging him as subject to removal because he was present in the United States without having been admitted or paroled. The NTA did not provide a hearing date or time. Nivelo Cardenas's then-current address was correctly listed on the NTA as the address of the processing center in Los Fresnos, Texas, where he was then detained.
The NTA informed Nivelo Cardenas that he was required to notify the immigration court immediately of any change in his address, that the Government would not be required to provide him written notice of his hearing if he did not provide an address at which he could be reached, and that the immigration judge ("IJ") could issue a removal order in his absence if he failed to attend a designated hearing. Nivelo Cardenas and the border patrol agent signed the certificate of service, which also stated Nivelo Cardenas "was provided oral notice in the Spanish language of the time and place of his . . . hearing and of the consequences of failure to appear as provided in section 240(b)(7) of the Act." See 8 U.S.C. § 1229a(b)(7). Despite the statement in the certificate of service about oral notice, the Government concedes such notice was not given then because the time and place information was not yet known.
On August 2, 1999, notice was served on Nivelo Cardenas that his case had been scheduled for 9:00 a.m. on August 12, before the immigration court at the Los Fresnos center where he was detained. On August 12, he was served with notice of a hearing scheduled for August 19. He was released from custody on August 17. On that date, he signed a form entitled "Notification Requirement for Change of Address," indicating his mailing address was "109 Cedar Ave" in "Patchogue, NY 11772." The same address was also reflected in a Form I-830, "Notice to EOIR: Alien Address," that was dated the same day. No such city exists. The "b" in the name should have been an "h," i.e., Patchogue.
On October 1, 1999, the immigration court mailed Nivelo Cardenas a hearing notice to the address with the misspelled city, with the hearing location and a date and time of January 28, 2000, at 10:00 a.m. Nivelo Cardenas did not appear at the scheduled hearing, and the IJ issued a removal order in absentia.
In November 2018, counsel for Nivelo Cardenas filed a motion to rescind the removal order and reopen his removal proceedings. He asserted he never received notice of the January 2000 hearing because the notice was addressed improperly and was therefore returned without delivery. The motion included Nivelo Cardenas's unsworn written statement indicating, among other things, that he gave an immigration officer his brother's address in "Patchogue, New York"; that he checked his mailbox every day for a hearing notice but never received anything; and that he gave up after two years of waiting to hear from the immigration court. The motion also cited a "bag and baggage letter" that correctly spelled "Patchogue" as evidence he provided the immigration court with the correct address and was not responsible for the improperly addressed hearing notice. Such a letter is notice that the person must surrender himself to immigration authorities, bringing his "bag and baggage" preparatory to being physically removed from the country. See Nen Di Wu v. Holder, 646 F.3d 133, 134 (2d Cir. 2011). The Government did not respond to the motion.
The IJ denied the motion on February 20, 2019. The IJ found the hearing notice was mailed to the "Patchogue" address Nivelo Cardenas provided to immigration authorities, as documented in the form he signed. The IJ also found the mailing was returned to the court by the United States Postal Service as undeliverable with a stamped notation of "Returned to sender, Attempted, Not known," and a handwritten notation stating, "Please return it to the sender." The IJ reasoned that Nivelo Cardenas was notified of his obligation to keep the court apprised of his correct mailing address; that there was no showing he informed the court of his correct address before January 28, 2000; and that he was provided with proper notice of the January 28, 2000, hearing because there was proof of attempted delivery to the last address he provided.
The IJ acknowledged Nivelo Cardenas's written statement filed with the motion but concluded the statement should not be considered because it was not sworn before a notary public or executed under penalty of perjury. Regardless, the IJ reasoned the outcome would be the same even if the statement were considered.
Nivelo Cardenas appealed to the Board of Immigration Appeals ("BIA"). He first argued the IJ relied on documents that were not in the record of his immigration proceedings, a claim based on the fact those documents were not among the records Nivelo Cardenas obtained pursuant to a request for his file under the Freedom of Information Act ("FOIA"). He also challenged the IJ's application of the law and contended the IJ failed to give proper consideration to the bag and baggage letter and his written statement. Further, he asserted that if his proceedings were reopened, he would be eligible for cancellation of removal under Pereira v. Sessions, — U.S. —, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), because his NTA did not provide the time of his hearing. That Supreme Court decision held an NTA that fails to designate the time or place of the removal hearing is not valid under 8 U.S.C. § 1229(a) and therefore does not constitute the predicate for the stop-time rule for cancellation of removal. Pereira, 138 S. Ct. at 2113-14. Since then, we have needed to decide whether Pereira applies more broadly than to the stop-time rule.
On August 5, 2020, the BIA upheld the IJ's decision and dismissed the appeal. The BIA determined Nivelo Cardenas was notified of his duty to provide a correct address — which included the obligation to correct any errors in his listed address — but that he failed to do so. Therefore, the BIA concluded, he received constructive notice of the hearing when notice was mailed to the last address he provided. The BIA additionally stated it appeared the Postal Service returned the mailing not because it was undeliverable but because someone at the address asked that it be returned. Nivelo Cardenas's argument regarding the bag and baggage letter was rejected because he had not shown he provided the address listed in that letter or that he otherwise corrected the misspelled city name in his address.
The BIA then determined his failure to update his address for over 18 years showed a lack of due diligence and undermined his contention he took sufficient action to maintain his rights in the removal proceedings. The BIA also observed that Nivelo Cardenas did not identify any effort to contact the immigration court in the intervening years. Noting due diligence was a significant factor supporting reopening, the BIA determined Nivelo Cardenas's lack of diligence militated against reopening.
Nivelo Cardenas filed a motion for reconsideration in the BIA that made several arguments: (1) It was inappropriate to consider evidence that was not provided under his FOIA request; (2) The BIA erred by engaging in de novo factfinding rather than reviewing the IJ's factual findings for clear error; (3) Due diligence was irrelevant to reopening; (4) The BIA erred in concluding he was properly notified of the January 28, 2000, hearing; (5) The BIA improperly considered due diligence in this context of reopening based on lack of notice; and (6) The immigration court lacked subject matter jurisdiction due to deficiencies with the NTA.
On June 4, 2021, the BIA denied reconsideration. A "denial of a motion to reconsider is a separate final order, requiring its own petition for review." Moreira v. Mukasey, 509 F.3d 709, 712 (5th Cir. 2007). Nivelo Cardenas timely petitioned this court for review of...
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