Castillo-Duarte v. Barr
| Decision Date | 10 July 2020 |
| Docket Number | No. 19-60347,19-60347 |
| Parties | AMILCAR CASTILLO-DUARTE, Petitioner v. WILLIAM P. BARR, 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
BIA No. A029 577 905
Before DENNIS, ELROD, and COSTA, Circuit Judges.
*
Amilcar Castillo-Duarte, a citizen of Guatemala, has twice asked the Board of Immigration Appeals (BIA) to rescind his in absentia deportation order1 and reopen proceedings. It has twice denied him relief. His appeal presents two grounds for reopening the proceeding. He contends that his age at the time of the deportation hearing (15) was reasonable cause for failing to appear. He also argues that the BIA failed to consider evidence that Castillo-Duarte did not receive the notice to appear. We disagree with his first contention but agree with the second. We thus VACATE and REMAND so the Board can evaluate whether the evidence of nondelivery rebuts the presumption that he received the notice to appear sent by regular mail.
Immigration and Naturalization Service detained Castillo-Duarte near Brownsville, Texas on October 19, 1988. Castillo-Duarte was 15 at the time. The next week, INS set his initial hearing for November 16, 1988, in Texas. A few days after INS set the hearing, it released Castillo-Duarte to reside with his cousin in Los Angeles.
In late November, INS sent notice by regular mail to Castillo-Duarte in Los Angeles that his hearing was rescheduled for early 1989. Castillo-Duarte claims that he never received the notice. Instead, he says that he reported to an INS office in Los Angeles on November 16, 1988, where an officer told him that his file was still in Texas and that his case was "dismissed." When he did not appear for the January hearing in Texas, an immigration judge ordered his deportation. Castillo-Duarte learned of the deportation order in 1997, after obtaining counsel to apply for asylum and, as a spouse of a permanent resident, for a green card.
In 2007, Castillo-Duarte filed a motion to reopen his case on the ground that he never received the hearing notice. But he failed to provide evidence of where he lived at the time of the hearing and that he had not received notice at that address. As a result, the immigration judge denied his motion, and the BIA affirmed.
About a decade later, Castillo-Duarte filed directly with the BIA another motion to reopen his deportation proceeding, arguing that he had not received notice of the hearing and asserting being a minor as reasonable cause forfailing to appear. This time, Castillo-Duarte provided several affidavits to support his claim of nonreceipt. His own affidavit states he had not received notice and that he had obtained counsel in 1997 to seek status that would have been unavailable to him due to the deportation order. An affidavit from his cousin, who lived at the Los Angeles address, says that she never received the notice from the INS. And Castillo-Duarte's wife states in an affidavit that he was "devastated" when he learned about the deportation order.
The BIA denied the motion, concluding that Castillo-Duarte failed to demonstrate he did not receive notice. While the Board stated that it had "reviewed the evidence of record and continue to find that there is a presumption of proper delivery in this case," it did not acknowledge the three affidavits supporting Castillo-Duarte's claim of nondelivery. The BIA instead focused on another argument Castillo-Duarte made: that the notice listed the wrong guardian. The BIA also rejected the notion that being 15 was reasonable cause for not appearing.
We review the BIA's denial of a motion to reopen for abuse of discretion, reviewing legal conclusions de novo and factual findings for substantial evidence. Inestroza-Antonelli v. Barr, 954 F.3d 813, 815 (5th Cir. 2020). The BIA must grant a motion to reopen a case adjudicated before 1992 if the individual ordered deported in absentia lacked reasonable opportunity to be present for the proceeding or had reasonable cause for his failure to appear. See 8 U.S.C. § 1252(b) (1988); see also United States v. Estrada-Trochez, 66 F.3d 733, 736 (5th Cir. 1995). An individual who lacks notice of a proceeding does not have a reasonable opportunity to be present. Estrada-Trochez, 66 F.3d at 736.
The Board did not abuse its discretion in concluding that Castillo-Duarte's status as a minor was not reasonable cause for his failure to appear. See generally In re Haim, 19 I. & N. Dec. 641, 642 (B.I.A. 1988) (). Very few circumstances rise to the level of "reasonable cause" that will excuse failure to appear at an immigration hearing. One court has held that incarceration does. See United States v. Munoz-Giron, 943 F. Supp. 2d 613, 627 (E.D. Va. 2013). Other courts have held that extreme circumstances preventing the individual from knowing about the hearing qualify. See, e.g., Lahmidi v. I.N.S., 149 F.3d 1011, 1017 (9th Cir. 1998) (); In re N-K- & V-S-, 21 I. & N. Dec. 879, 881 (B.I.A. 1997) (). But we have concluded that advice from counsel not to attend, Patel v. U.S. I.N.S., 803 F.2d 804, 806 (5th Cir. 1986), and counsel's losing a hearing notice, Wellington v. I.N.S., 108 F.3d 631, 635 (5th Cir. 1997), do not. See also Shah v. I.N.S., 788 F.2d 970, 972 (4th Cir. 1986) ().
Extending reasonable cause to the status of being a minor at the time of the hearing, without more,2 would call into doubt all in absentia hearings conducted for minors under the pre-1992 statute. Such a holding seems incompatible with the statutory and regulatory scheme addressing thedeportation of minors at the time of Castillo-Duarte's entry. See generally Flores v. Meese, 942 F.2d 1352, 1355-57 (9th Cir. 1991) (en banc) (), rev'd sub nom. Reno v. Flores, 507 U.S. 292 (1993); Perez-Funez v. Dist. Dir., I.N.S., 619 F. Supp. 656, 658-59 (C.D. Cal. 1985) (). To cite an example from current immigration law, notice must be served on an adult only if the person facing removal is under 14. See Lopez-Dubon v. Holder, 609 F.3d 642, 645 (5th Cir. 2010) (discussing 8 C.F.R. § 103.5(a)(c)(2)(ii)). Given how narrowly courts interpret reasonable cause, we cannot say the BIA was required to adopt the far-reaching rule Castillo-Duarte urges.
Castillo-Duarte's second argument challenges a procedural aspect of the BIA ruling. He contends it did not consider the evidence he presented to counter the presumption that the Postal Service delivered the notice.
The government may mail notice of an immigration hearing if personal service is not practicable. 8 U.S.C. § 1229(a)(1), (2) (1988); Hernandez v. Lynch, 825 F.3d 266, 268 (5th Cir. 2016). Notice is sufficient if it reaches the most recent mailing address provided by the individual. 8 U.S.C. § 1229(b)(5)(A) (1988); Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). A strong presumption that notice reached the address arises when the government uses certified mail; a weaker presumption arises when the government uses regular mail, as it did here. Hernandez, 825 F.3d at 269. The BIA must consider all relevant evidence that an individual submits to overcome the weaker presumption of service through regular mail, which may include: (1) the individual's affidavit, (2) affidavits from others, (3) the individual's conduct upon learning of the removal order, (4) any prior application for relief showing an incentive to appear, (5) attendance at previous hearings, and (6) any othercircumstances indicating nonreceipt. See id. at 270 (citing In re M-R-A-, 24 I. & N. Dec. 665, 674 (B.I.A. 2008)). When the BIA fails to consider all...
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