Gomez-Palacios v. Holder, No. 07-60938.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBenavides
Citation560 F.3d 354
PartiesMarlon Jesus GOMEZ-PALACIOS, Petitioner, v. Eric H. HOLDER, U.S. Attorney General, Respondent.
Decision Date18 February 2009
Docket NumberNo. 07-60938.
560 F.3d 354
Marlon Jesus GOMEZ-PALACIOS, Petitioner,
v.
Eric H. HOLDER, U.S. Attorney General, Respondent.
No. 07-60938.
United States Court of Appeals, Fifth Circuit.
February 18, 2009.

[560 F.3d 356]

Martin Avila Robles, Law Offices of Martin R. Guajardo, San Francisco, CA, for Petitioner.

Kathryn M. McKinney, Thomas Ward Hussey, Director, Anh-Thu P. Mai, U.S. Dept. of Justice, Office of Immigration Lit., Washington, DC, Mario R. Ortiz, San Antonio, TX, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before KING, BENAVIDES and CLEMENT, Circuit Judges.

BENAVIDES, Circuit Judge:


Marlon Jesus Gomez-Palacios petitions this court for review of the Board of Immigration Appeals' ("BIA") decision denying his appeal from a decision of the Immigration Judge ("IJ") that denied his motion to reopen proceedings and to rescind the order of removal that was entered against him in absentia. Gomez-Palacios argues that because he did not actually receive the required statutory notice of the hearing date, the BIA's decision denying his motion to reopen was an abuse of discretion. We disagree, and DENY the petition.

I. Background

On July 9, 1999, Gomez-Palacios was found unlawfully present in the United States by Border Patrol agents at Eagle Pass, Texas. On the same date, he was charged in a Notice to Appear ("NTA") with removability under 8 U.S.C. § 1182(a)(6)(A)(I). The NTA was personally served on Gomez-Palacios and ordered him to appear before an immigration judge in San Antonio at a time and date "to be set."

The NTA warned Gomez-Palacios, in a section captioned, "Failure to appear," that he was required to provide the Immigration and Naturalization Service (now the Department of Homeland Security) with his mailing address, and to notify the immigration court of any change in his address through a Form EOIR-33, as notices of hearing would be mailed to the address provided by him. The NTA stated:

If you do not submit Form EOIR-33 and do not otherwise provide an address at which you may be reached during proceedings, then the Government shall not be required to provide you with written notice of your hearing. If you fail to attend the hearing at the time and place designated on this notice, or any date and time later directed by the Immigration Court, a removal order may be made by the immigration judge in your

560 F.3d 357

absence, and you may be arrested and detained by the INS.

The NTA certified that Gomez-Palacios received oral notice in Spanish of the time and place of the hearing, in his case a time and place "to be set," as well as "the consequences of failure to appear as provided in section 240(b)(7) of the Act." Gomez-Palacios acknowledged receipt and understanding of the NTA by signature, and he was released on his own recognizance. He reported his address as "39 Callen Street, Apartment B, Vacaville, California 95688."

On March 30, 2000, a notice of hearing ("NOH") was mailed to Gomez-Palacios at the provided address, advising him that his removal hearing would take place on September 27, 2000. The NOH was returned with a stamped notation on the envelope, "no such number." The hearing nevertheless took place, and, on September 27, 2000, Gomez-Palacios was ordered removed to Honduras based on the charge in the NTA. However, on July 30, 2001, the immigration judge sua sponte reopened the proceedings, finding that Gomez-Palacios had provided a change of address specifying his correct address as "1390 Callen Street, Apartment B, Vacaville, CA 95688," and stating that correspondence should be addressed in care of Idalia Castillo.

On August 11, 2001, the immigration court mailed an NOH to the corrected address notifying Gomez-Palacios that a hearing on his removal proceedings would be held on April 1, 2002.1 On April 1, 2002, another NOH was mailed to Gomez-Palacios, informing him that his hearing would be held on August 28, 2002. The NOH was addressed to Gomez-Palacios at the last known address he provided, but it was returned to the immigration court stamped "attempted, not known."

Gomez-Palacios failed to appear at the scheduled removal hearing on August 28, 2002. At that hearing, he was ordered removed in absentia.

More than four years later, on September 14, 2006, Gomez-Palacios filed a motion to reopen his removal proceedings on the grounds that the required statutory notice of the removal hearing was not provided. The IJ denied the motion on the basis that Gomez-Palacios had failed to demonstrate that his failure to appear was through no fault of his own, stating that Gomez-Palacios had been told to notify the immigration court of any change in his address, that the NOH was sent to the most recent address provided to the court, and that Gomez-Palacios had not explained why he failed to provide his current address each time he relocated as he was required to do, reflecting the immigration court's apparent finding that Gomez-Palacios had not received the NOH because he had relocated.

Gomez-Palacios appealed the denial of his motion to reopen to the BIA. The Board denied the appeal, holding that Gomez-Palacios failed to receive the NOH because he neglected to provide the immigration court with a current mailing address, as the NOH was mailed to the most recent address provided by Gomez-Palacios and the "attempted, not known" stamp and the absence of any evidence provided by Gomez-Palacios to explain the unsuccessful delivery showed that either the last address he provided was never his true

560 F.3d 358

address or he had subsequently moved and failed to notify the court as required.

II. The Standard of Review

In reviewing the denial of a motion to reopen, this court applies a highly deferential abuse-of-discretion standard, regardless of the basis of the alien's request for relief. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir.2000). Accordingly, this court must affirm the BIA's decision as long as it is not capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach. See Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.2006).

While questions of law are reviewed de novo, this court accords deference to the BIA's interpretation of immigration statutes unless the record reveals compelling evidence that the BIA's interpretation is incorrect. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.1997). The BIA's factual findings are reviewed under the substantial-evidence test, meaning that this court may not overturn the BIA's factual findings unless the evidence compels a contrary conclusion. Chun v. INS, 40 F.3d 76, 78 (5th Cir.1994). This court reviews the order of the BIA and will consider the underlying decision of the IJ only if it...

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312 practice notes
  • In re Castro-Tum, Interim Decision #3926
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • May 17, 2018
    ...the Notice to Appear and each Notice of Hearing contained all the statutorily required information. See, e.g., Gomez-Palacios v. Holder, 560 F.3d 354, 359 (5th Cir. 2009) (notice is satisfied by the combination of the Notice to Appear and Notice of Hearing). DHS also adequately alleged that......
  • In re Castro-Tum, Interim Decision #3926
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • May 17, 2018
    ...the Notice to Appear and each Notice of Hearing contained all the statutorily required information. See, e.g., Gomez-Palacios v. Holder, 560 F.3d 354, 359 (5th Cir. 2009) (notice is satisfied by the combination of the Notice to Appear and Notice of Hearing). DHS also adequately alleged that......
  • United States v. Niebla-Ayala, EP-18-CR-3067-KC
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • December 5, 2018
    ...removal hearing.6 Resp. 15–17. To support this argument, the government cites the Fifth Circuit's opinion in Gomez-Palacios v. Holder , 560 F.3d 354, 359 (5th Cir. 2009). Id. The government suggests Gomez-Palacios stands for the proposition that a later-served Notice of Hearing may provide ......
  • United States v. Zapata-Cortinas, Criminal No. SA-18-CR-00343-OLG
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • November 20, 2018
    ...time and date information) had been approved by both the Fifth Circuit and the BIA prior to Pereira . See Gomez-Palacios v. Holder , 560 F.3d 354, 359 (5th Cir. 2009) ("[A]n NTA need not include the specific time and date of a removal hearing in order for the statutory notice requirements t......
  • Request a trial to view additional results
322 cases
  • In re Castro-Tum, Interim Decision #3926
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • May 17, 2018
    ...the Notice to Appear and each Notice of Hearing contained all the statutorily required information. See, e.g., Gomez-Palacios v. Holder, 560 F.3d 354, 359 (5th Cir. 2009) (notice is satisfied by the combination of the Notice to Appear and Notice of Hearing). DHS also adequately alleged that......
  • In re Castro-Tum, Interim Decision #3926
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • May 17, 2018
    ...the Notice to Appear and each Notice of Hearing contained all the statutorily required information. See, e.g., Gomez-Palacios v. Holder, 560 F.3d 354, 359 (5th Cir. 2009) (notice is satisfied by the combination of the Notice to Appear and Notice of Hearing). DHS also adequately alleged that......
  • United States v. Niebla-Ayala, EP-18-CR-3067-KC
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • December 5, 2018
    ...removal hearing.6 Resp. 15–17. To support this argument, the government cites the Fifth Circuit's opinion in Gomez-Palacios v. Holder , 560 F.3d 354, 359 (5th Cir. 2009). Id. The government suggests Gomez-Palacios stands for the proposition that a later-served Notice of Hearing may provide ......
  • United States v. Arroyo, EP-18-CR-02049-DCG
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • December 21, 2018
    ...of written notice" and rejecting an argument that the NTA "deprived the immigration court of jurisdiction"); Gomez-Palacios v. Holder , 560 F.3d 354, 359 (5th Cir. 2009) ("[A]n NTA need not include the specific date and time of a removal hearing in order for the statutory notice requirement......
  • Request a trial to view additional results

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