Martinez v. Barr

• Citation: 941 F.3d 907
• Decision Date: 30 October 2019
• Docket Number: No. 17-72186, No. 18-72034,17-72186
• Parties: Celia Diaz MARTINEZ, Petitioner, v. William P. BARR, Attorney General, Respondent. Celia Diaz Martinez, aka Celia Diaz, aka Celia Diaz Martinez, Petitioner, v. William P. Barr, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

941 F.3d 907

Celia Diaz MARTINEZ, Petitioner,

v.William P. BARR, Attorney General, Respondent.

Celia Diaz Martinez, aka Celia Diaz, aka Celia Diaz Martinez, Petitioner,

v.William P. Barr, Attorney General, Respondent.

No. 17-72186

No. 18-72034

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 2019 Pasadena, California

Filed October 30, 2019

KATZMANN, Judge:

Petitioner Celia Diaz Martinez ("Diaz Martinez") challenges the denials, by an immigration judge ("IJ") and Board of Immigration Appeals ("BIA"), of two motions to reopen her removal proceedings. Diaz Martinez sought to reopen her removal proceedings after an IJ issued an in absentia removal order when she failed to appear at an immigration hearing. She filed the first motion to reopen ("first MTR") with an IJ, who denied the motion shortly after suggesting that Diaz Martinez would have time to review the record and amend the motion. Diaz Martinez then appealed to the BIA for review of the denial and, before the BIA denied that appeal, Diaz Martinez pro se petitioned for review of the IJ’s denial of her first MTR to this court. The BIA subsequently denied her appeal. With new counsel, Diaz Martinez filed a second motion to reopen ("second MTR") with the BIA, which the BIA also denied and Diaz Martinez petitioned for review.

Whether we have jurisdiction to review the denial of the first MTR, where Diaz Martinez filed her petition before the BIA issued a final decision, is an issue of first impression for our court. Diaz Martinez argues that we have subject matter jurisdiction over her pro se petition because the BIA issued a decision before this court considered the merits of her case, thus curing any defect in her premature filing in this court. Assuming jurisdiction, Diaz Martinez asks us to void the IJ’s in absentia removal order and remand this case to the BIA to reopen because (1) she lacked notice of the amended charges against her; (2) she lacked notice of the time of her final removal hearing; (3) the IJ and BIA wrongly ignored the statements of Diaz Martinez’s counsel; (4) the IJ should have waited to rule on Diaz Martinez’s MTR because of her history of diligence; and (5) the BIA abused its discretion by not reopening the case sua sponte. Diaz Martinez further argues that the BIA should have granted Diaz Martinez’s second MTR.

We determine that we have jurisdiction over the petition for review of the first MTR, as the petition ripened prior to consideration on the merits here. Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii), we conclude that Diaz Martinez lacked notice of the amended charges, and therefore the removal order was unsupported by substantial evidence and the BIA abused its discretion in failing to reopen her proceedings. Accordingly, we grant the petition for review. We do not reach Diaz Martinez’s alternative arguments.

I. Factual and Procedural Background

Diaz Martinez is a 47-year-old citizen of El Salvador without legal status in the United States. Diaz Martinez has five U.S. citizen children, two of whom have medical issues.

On February 9, 2007, Diaz Martinez was served in person with a notice to appear ("2007 NTA") and taken into immigration custody. She was charged with violating section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA") as "an alien present in the United States who has not been admitted or paroled." 8 U.S.C. § 1182 (2007). The 2007 NTA alleged the following facts:

1) You are not a citizen or national of the United States;

2) You are a native of El Salvador and a citizen of El Salvador;

3) You arrived in the United States at or near San Ysidro, California, on or about August 25, 1989;

4) You were not then admitted or paroled after inspection by an Immigration Officer.

The 2007 NTA was stamped as received by the Department of Justice on February 15, 2007 and stamped as an exhibit by the IJ on March 5, 2007. On March 7, 2007, Diaz Martinez was released on bond from immigration custody in Florence, Arizona.

Over the course of three years, Diaz Martinez diligently attended numerous hearings in immigration court and communicated her address changes to the Government (i.e., the Department of Homeland Security). Diaz Martinez’s first master calendar hearing was scheduled for May 1, 2007 at 8:30 a.m. On May 1, the IJ granted her pro se motion for a change of venue to the immigration court in Los Angeles, California. On May 17, 2007, the Los Angeles immigration court served Diaz Martinez by mail with a notice of hearing, scheduling a master calendar hearing at the Los Angeles immigration court for June 13, 2007 at 9:00 a.m. On June 13, 2007, the immigration court served her in person with a new notice of hearing, scheduling a master calendar hearing for February 25, 2008 at 9:30 a.m. On February 12, 2008, the immigration court issued another new notice of hearing, scheduling an individual hearing for June 2, 2008 at 9:30 a.m. The certificate of service box indicates that the new notice was served by mail to both Diaz Martinez and her then-counsel. On February 25, 2008, Diaz Martinez was served in person¹ with another notice of hearing, again scheduling an individual hearing for June 2, 2008 at 9:30 a.m. On June 2, 2008, the immigration court served Diaz Martinez and her attorney in person with a new notice of hearing, reassigning Diaz Martinez’s case to a new IJ and scheduling a master calendar hearing for November 25, 2008 at 9:30 a.m. That same day, Diaz Martinez filed a change of address form with the immigration court. On December 3, 2009, the immigration court issued a new notice of hearing, scheduling a master calendar hearing for June 23, 2010 at 8:30 a.m. The notice indicated that it was served by mail on Diaz Martinez’s counsel at the time.

On June 23, 2010, Diaz Martinez and her then-counsel appeared before the immigration court, and the court issued a notice of hearing for another master calendar hearing. The notice was served on Diaz Martinez’s counsel in person and indicated that a master calendar hearing would be held on October 27, 2010 at 8:00 a.m., with the "8" partly obscured by a pen marking. The notice also indicated that the next hearing would be a removal hearing and failure to appear would, absent exceptional circumstances, result in ineligibility for certain forms of relief under the INA.

That same day, June 23, 2010, two other critical events occurred. First, Diaz Martinez submitted a change of address form, providing a new address.² The IJ stamped the form as received on June 23, 2010, and Diaz Martinez signed the form, certifying that she had mailed a copy of it to the Government. Second, the Government issued an "Additional Charges of Inadmissibility/Deportability" form ("amended NTA"), which amended the 2007 NTA. The Government lodged no additional charges against Diaz Martinez, but it amended the factual allegations against her. The Government alleged, "You entered the United States at or near an unknown place on or about an unknown date," removing the references to El Salvador and the 1989 entry. A box was checked indicating that the amended factual allegations were "in lieu of," rather than "in addition to," the facts alleged in the 2007 NTA. Thus, the amended NTA no longer included her approximate date or place of entry into the United States. The IJ also stamped the amended NTA as received on June 23, 2010. The certificate of service section of the form listed Diaz Martinez’s old address, not the new address provided on June 23, 2010, and the boxes for means of service (in person, certified mail, regular mail, and oral notice) were all left blank. Neither the Government nor Diaz Martinez signed the certificate of service box. The record does not provide any other evidence that Diaz Martinez or her counsel were served by mail or in person with the amended NTA.

On October 27, 2010, Diaz Martinez was not present at the hearing, and the IJ ordered her removed in absentia. The IJ marked the following as her finding: "At a prior hearing the respondent admitted the factual allegations in the Notice to Appear and conceded removability. I find removability established as charged." The IJ’s final order concluded that "[t]he respondent shall be removed to EL SALVADOR on the charge(s) contained in the Notice to Appear."

Diaz Martinez claims that in October 2010, she went to the Los Angeles immigration court for her hearing, but the courtroom was locked, and court staff told her that the IJ was not present. According to Diaz Martinez, court staff told her that she would receive notice of a new hearing date and time in the mail. Diaz Martinez did not receive a new notice of hearing. Diaz Martinez then made payments to a notario who had previously helped her so that he would reopen her case. She later learned that he never did so, and she instead had been ordered removed. In 2014, she hired new counsel to reopen her case, but he died in a car accident, and no motion to reopen was filed.

In 2017, Diaz Martinez retained new counsel. On June 1, 2017, counsel filed a motion to reopen removal proceedings (the "first MTR") and a motion to stay removal in the immigration court. The first MTR challenged Diaz Martinez’s order of removal on due process grounds, arguing that "[d]ue process requires that the alien be provided with notice of proceedings and an opportunity to be heard. Notice must be reasonably calculated to apprise the alien of his or his scheduled hearing and the immigration charges against him." The first MTR further stated that "[t]his motion will be supplemented after counsel has had the opportunity to review the Court’s Record of Proceedings." That same day, then-counsel for Diaz Martinez sent a request to the Executive Office for Immigration Review ("EOIR") for audio of "Respondent’s hearings, including her removal hearing on October 27, 2010."

A little over a week later, on June 9, 2010, the IJ denied the first MTR because the motion was not supported by documentary...