Dorce v. Garland

• Docket Number: 21-1336
• Decision Date: 03 October 2022
• Citation: 50 F.4th 207
• Parties: Ritch Cardy DORCE, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

50 F.4th 207

Ritch Cardy DORCE, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 21-1336

United States Court of Appeals, First Circuit.

October 3, 2022

Kristin Macleod-Ball, with whom Jennifer Klein, the Committee for Public Counsel Services, Trina Realmuto, and the National Immigration Litigation Alliance were on brief, for petitioner.

Aric A. Anderson, Trial Attorney, Office of Immigration Litigation, with whom Brian Boynton, Acting Assistant Attorney General, and Leslie McKay, Senior Litigation Counsel, were on brief, for respondent.

Before Barron, Chief Judge, Lynch and Lipez, Circuit Judges.

LYNCH, Circuit Judge.

Ritch Cardy Dorce petitions for review of the Board of Immigration Appeals ("BIA") decision of April 7, 2021, affirming the denial of his application for cancellation of removal. The BIA both rejected Dorce's argument that he had not received proper notice as required under the Due Process Clause of the Fifth Amendment, the Immigration and Nationality Act ("INA"), and regulations governing his hearing before the Immigration Judge ("IJ"), and held that Dorce had not shown, as he was required to, that not receiving proper notice prejudiced the outcome of his case. Because substantial evidence supports the BIA's determination that Dorce had not shown prejudice and the BIA committed no errors of law in that ruling, we deny Dorce's petition for review.

I.

Dorce was born in Haiti in 1996 and moved to the United States as a lawful permanent resident in 2000. He lived in Florida with his grandmother for many years before moving to Massachusetts to live with his father around 2011. After periods of homelessness, Dorce eventually moved in with Stacey Fragile, his (now former) girlfriend with whom he now has two U.S.-citizen children.

Shortly after turning 18, Dorce committed serious criminal acts. On July 27, 2018, Dorce was convicted following a jury trial in the Brockton, Massachusetts District Court of carrying a firearm without a license, in violation of Mass. Gen. Laws ch. 269, § 10(a).¹ Dorce, then aged 20, had posted a video on social media of himself brandishing a firearm and claiming to have shot at an occupied residence on New Year's Eve 2016 after he was involved in a fight at that residence. Someone had, in fact, shot at the residence a couple hours before Dorce posted the video on social media. Dorce was sentenced to two years in prison.

In April 2019, Dorce was served a Notice to Appear ("NTA") that charged him as removable under 8 U.S.C. § 1227(a)(2)(C) based on his firearm conviction. He was transferred to the custody of the Department of Homeland Security and detained at the Plymouth House of Corrections in Massachusetts for the duration of his removal proceedings.

In August 2019, Dorce admitted the factual allegations in the NTA, and the IJ sustained the charge of removability against him.² The IJ also found Dorce may be prima facie eligible for various forms of relief from removal, including asylum and cancellation of removal for lawful permanent residents. Dorce, who was pro se before the IJ, filed applications for asylum, 8 U.S.C. § 1158, withholding of removal, id. § 1231(b)(3), protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1), and cancellation of removal, 8 U.S.C. § 1229b(a), at a September 30, 2019 hearing.³

The IJ told Dorce at the September 30 hearing that his merits hearing would be held on December 4, 2019. The IJ also informed Dorce that he "can have anybody come in and speak on [his] behalf for either one of [his] applications." The IJ explained:

[T]he cancellation application is, like, a scale. ... On one side's going to be all the positive factors in your case, such as your length of time, how old you were when you first came to the United States, what family members you have here, things you may have done for your community, against the negative side, which would be the seriousness of your criminal history, how recent it is, whether you've shown rehabilitation. ... [B]asically, whichever way that scale tips, is the way the Court rules ....

The same day, the immigration court mailed written notice of the December 4 hearing to Dorce at his Plymouth address. Dorce admits he received that notice.

The record shows that on November 27, 2019, the immigration court mailed another notice to Dorce at the same address, stating that his merits hearing was now scheduled for December 19, 2019.

A. Merits Hearing

Dorce was present at his December 19 hearing. He never stated to the IJ that he had not received prior notice of that hearing, nor did he lodge an objection on that basis. Dorce also did not ask for additional time to gather witnesses to testify on his behalf. He told the IJ that "[his] father was supposed to come, and [his] uncle," and that he did not know where they were. The IJ asked Dorce why Fragile, the mother of his children, was not present and Dorce responded: "She was supposed to be. I don't know what happened. She told me she would come."

Dorce relied on his own testimony (and a few exhibits), which was developed through questioning by the IJ and government counsel. Dorce testified primarily about his U.S.-citizen children, his history with unemployment and homelessness, his community service, the circumstances of his firearm conviction, and the classes he took in prison.

After hearing Dorce's testimony, the IJ rendered an oral decision denying Dorce's application for cancellation of removal as a matter of discretion and his other applications on the merits. The IJ found Dorce generally credible with one critical exception: the IJ had "issue and concern regarding [Dorce's] truthfulness and candor regarding his criminal conduct and the circumstances surrounding his criminal offense." The IJ denied his cancellation of removal application because she found that Dorce's negative factors outweighed the positive.

The IJ acknowledged that Dorce had "positive factors" in his case, including his community service, his residence in the United States for many years, and his two U.S.-citizen children. She found these factors "undercut by the fact that [Dorce is] not on the birth certificate for the children, the children are receiving Government benefits, [and Dorce has] not provid[ed] for the ... children." Further, the IJ found Dorce's "conviction for possession of a firearm without a proper license to be a very serious offense, and weigh[ed] this as a very significant adverse factor." This was based on the IJ's finding that Dorce,

at minimum, took a video in which he brandished a firearm, portrayed that he had gone back to a party after having an altercation at the party, and shot the residence with the firearm. ... [Dorce] had a nine-millimeter handgun in the video. He took the magazine out of the handgun, tipped the camera down to video that the magazine was empty, and indicated that it did not matter that he had run out of bullets while shooting, that he was going to get some more and go back.

The IJ also pointed to evidence in the record that Dorce had been associated with a gang, specifically the Zoe Pound Gang. Dorce made a Facebook post stating "Zoe Gang or no gang," which was "interestingly deleted shortly after the criminal investigation occurred after the shooting on New Year's Eve." The IJ ordered Dorce removed to Haiti. He was deported in 2021.

B. Appeal to the Board of Immigration Appeals

Dorce filed a pro se appeal to the BIA in December 2019. He again did not make any assertion of the alleged lack of notice of his rescheduled hearing or present any arguments on that basis. Dorce did not raise his lack-of-notice claims until his counseled brief to the BIA, which was submitted with declarations from himself, his father, his uncle, his sister, and Fragile.

Dorce stated in his declaration that "[f]our witnesses planned to testify for [him] at [his] deportation hearing on December 4, 2019" and that he "was really confused when [his] hearing never happened that day." He said his father and uncle went to the court on December 4 and were told that Dorce "wasn't there and that the hearing wasn't going to happen."

Dorce asserted in his declaration that about a week after December 4, he had an undocumented, ex-parte videocall with his IJ, during which the IJ allegedly told Dorce that his December 4 hearing was postponed due to a scheduling error and that she "didn't know yet when [his] hearing would be, but that the [Immigration and Customs Enforcement] officers would bring [Dorce] a paper to let [him] know." Dorce stated in the declaration that he did not receive written notice after that videocall, so he called the immigration court on or around December 16 for his new hearing date, which was December 19. Dorce stated that he then called his sister to have her arrange for his witnesses to come to the immigration court to testify on December 19, but none of his witnesses did so.

The declarations of his family and Fragile set forth the testimony the declarants allegedly would have given had they attended Dorce's merits hearing.⁴

The BIA "reviewed the declarations submitted" and rejected Dorce's lack-of-notice claims.⁵ It determined that Dorce failed to rebut the presumption of notice:

The record reflects that the notice for the December 19th hearing was mailed to the respondent. There is no indication in the record of proceeding that it was undeliverable or that the respondent notified the Immigration Judge at the hearing that he had not received the notice and that he was unprepared to proceed with his case. Moreover, the hearing notice was dated November 27, 2019, more than a week before the alleged video call with the Immigration Judge. Thus, if such video call had taken place, it is not credible that the Immigration Judge was not aware that the hearing had been rescheduled. The respondent has therefore not established any procedural error by the Immigration Judge.

The BIA also rejected Dorce's claim that he was prejudiced by the...