Mauricio-Benitez v. Sessions

• Decision Date: 08 November 2018
• Docket Number: No. 17-60792,17-60792
• Citation: 908 F.3d 144
• Parties: Roberto Enrique MAURICIO-BENITEZ, also known as Roberto Sanchez-Fajardo, Petitioner, v. Jefferson B. SESSIONS, III, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

908 F.3d 144

Roberto Enrique MAURICIO-BENITEZ, also known as Roberto Sanchez-Fajardo, Petitioner,

v.Jefferson B. SESSIONS, III, U.S. Attorney General, Respondent.

No. 17-60792

United States Court of Appeals, Fifth Circuit.

FILED November 8, 2018

Raed Gonzalez, Esq., Senior Attorney, Gonzalez Olivieri, L.L.C., Houston, TX, for Petitioner.

Tracey Nicole McDonald, Esq., U.S. Department of Justice Civil Division/OIL, Washington, DC, Office of Immigration Litigation, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Petitioner Roberto Enrique Mauricio-Benitez, a native and citizen of El Salvador, seeks review of a final order of removal issued by the Board of Immigration Appeals (BIA). He contends that the BIA erred in refusing to reopen his removal proceedings because he never received notice of his removal hearing. Because Mauricio-Benitez failed to provide the immigration court with his correct mailing address, and because he failed to rebut the weak presumption of delivery of his notice of hearing (NOH), we DENY his petition for review.

I.

On or around June 13, 2004, Mauricio-Benitez entered the United States near Roma, Texas, without being admitted or paroled. The same day, the Department of Homeland Security (DHS) personally served him with a Notice to Appear (NTA) charging him with being removable under 8 U.S.C. § 1182(a)(6)(A)(i). The NTA ordered Mauricio-Benitez to appear at a removal hearing before an immigration judge (IJ) at a date and time to be set and noted the following: "If you fail to attend the hearing ... a removal order may be made by the [IJ] in your absence[.]" Mauricio-Benitez acknowledged on the NTA that he had received oral notice in Spanish of the consequences of failing to appear.

The NTA also contained instructions regarding Mauricio-Benitez's mailing address. It stated that he was required to provide the DHS with his address in writing and warned him to "notify the Immigration Court immediately" if he changed his address because "[n]otices of hearing [would] be mailed to this address." In addition, it notified Mauricio-Benitez that if he did not provide an address at which he could be reached during his removal proceedings, he would not be entitled to receive written notice of his hearing. The mailing address listed on the NTA was "4010 West Belford Apt. 705," whereas Mauricio-Benitez claims that his correct address at the time was "4010 West Belfort Apt. 705." According to Mauricio-Benitez, he provided the correct address, but an immigration officer introduced the spelling error when preparing the NTA. There is no indication in the record that he corrected the address when he received the NTA.

The following month, the DHS sent a NOH to Mauricio-Benitez at the West Belford address via regular mail. The NOH informed Mauricio-Benitez that his removal hearing had been scheduled for September 21, 2004, and again warned him of the consequences of failing to appear. Mauricio-Benitez did not attend the hearing, and the IJ entered an in absentia order for his removal to El Salvador.

Almost thirteen years later, in June 2017, Mauricio-Benitez filed a motion to reopen his removal proceedings and rescind the in absentia removal order. He alleged that he had never received notice of his removal hearing, and, as a result, he did not find out about the order until his attorney filed a Freedom of Information Act (FOIA) request in January 2017. He also contended that he first learned of the spelling error in the mailing address on his NTA through the FOIA request.

The IJ denied Mauricio-Benitez's motion. She first observed that Mauricio-Benitez "did not provide the Court with an address change, as required by the regulations," to correct the NTA or when he moved from the address listed on the NTA six months later. Thus, the IJ found that the immigration court was only required to send the NOH to the last mailing address it had on file—the West Belford address. Accordingly, Mauricio-Benitez had received proper notice of his removal hearing under 8 U.S.C. § 1229(a)(2).

Mauricio-Benitez appealed the IJ's decision to the BIA, again arguing lack of notice of the removal hearing. The BIA first observed that Mauricio-Benitez's NOH had been mailed to the address listed on the NTA and that the NOH had not been returned as undeliverable. It then dismissed the appeal on two alternative grounds: (1) Mauricio-Benitez had not provided sufficient evidence to rebut the presumption of delivery of the NOH; and (2) Mauricio-Benitez was "not entitled to actual notice of his hearing" because he had failed to correct the mistake in the address on the NTA with the immigration court. Mauricio-Benitez timely filed a petition for review.

II.

Motions to reopen removal proceedings are disfavored, Altamirano-Lopez v. Gonzales , 435 F.3d 547, 549 (5th Cir.2006), and we review BIA denials of these motions under a "highly deferential abuse-of-discretion standard." Hernandez-Castillo v. Sessions , 875 F.3d 199, 203 (5th Cir.2017). We may only overturn a BIA decision if it is "capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach[.]" Id. at 203–04 (quoting Gomez-Palacios v. Holder , 560 F.3d 354, 358 (5th Cir.2009) ). Under the substantial-evidence test, we may only overturn the BIA's findings of fact if the evidence compels a contrary conclusion. Gomez-Palacios , 560 F.3d at 358. We review questions of law de novo . Id. We will focus our review on the BIA's order, as we may only evaluate the IJ's underlying decision if it influenced the BIA's determination. Hernandez-Castillo , 875 F.3d at 204.

III.

Mauricio-Benitez advances two arguments in his petition for review: (1) the BIA erred in finding that he was not entitled to actual notice of his removal hearing; and (2) the BIA's conclusion regarding the presumption of delivery of his NOH was contrary to this court's and the BIA's prior decisions. We will address each of his arguments in turn.

A.

Under 8 U.S.C. § 1229(a)(1), an alien who is subject to removal proceedings is entitled to written notice of "[t]he time and place at which the proceedings will be held." 8 U.S.C. § 1229(a)(1)(G)(i). A written notice is deemed sufficient if the government "provide[s it] at the most recent address provided" to the immigration court by the alien. Id. § 1229a(b)(5)(A). However, if the alien fails to provide a mailing address in accordance with the statutory requirements, he is not entitled to written notice of his removal hearing. Id. § 1229a(5)(B). The alien must also be informed of the consequences of failing to appear after receiving notice, id. § 1229(a)(1)(G)(ii), including that the immigration judge may enter an in absentia order of removal against him. Id. § 1229a(b)(5)(A). An in absentia removal order entered without proper notice to the alien may be rescinded at any time upon a motion to reopen, and it is the alien's burden to demonstrate that he did not receive notice in accordance with § 1229(a). Id. § 1229a(b)(5)(C)(ii).

In concluding that Mauricio-Benitez was not entitled to actual notice of his removal hearing, the BIA observed that he had been personally served with a NTA emphasizingthe significance of the mailing address requirements, but he still took no action to inform the immigration court about the spelling error. Mauricio-Benitez counters that the NTA and relevant regulations only required him to notify the immigration court of a change in address, not a correction to the address already on file. He further insists that even if he had such a duty to correct his address, he "had no reason to believe" the address on file was incorrect until he filed his FOIA request in 2017. He argues this even though the NTA itself, which he received in person, spelled the address incorrectly.

Our decision in Gomez-Palacios forecloses Mauricio-Benitez's argument. See 560 F.3d 354. In that case, a NTA was personally served on the alien; the NTA detailed the alien's obligations regarding his mailing address and the consequences of failing to appear at his removal hearing; and a NOH was mailed to the address provided by the alien on the NTA. Id. at 356–57. However, because the alien had relocated without updating his mailing address with the immigration court, he did not receive the NOH, and he was ordered removed in absentia when he failed to appear. Id. at 357. More than four years later, the alien moved to reopen the removal proceedings on the basis of lack of notice. Id.

Upholding the BIA's dismissal of the alien's appeal, we concluded that "an alien's failure to receive actual notice of a removal hearing due to his neglect of his obligation to keep the immigration court apprised of his current mailing address does not mean that the alien ‘did not receive notice’ under § 1229a(b)(5)(C)(ii)." Id. at 360–61. Thus, because the lack of notice was a result of the alien's failure to update his mailing address with the immigration court, his removal order would not be rescinded on that basis. Id. at 361.

In several unpublished cases, we have extended the rule in Gomez-Palacios to cases where the alien did not fail to inform the immigration court of a change in address, but instead failed to correct an error in the address listed on the NTA. See Mejia-Urbina v. Sessions , 712 F. App'x 469, 469–70 (5th Cir.2018) (denying petition for review when the record contained no evidence that the alien had attempted to notify the immigration court that the address on his NTA was incorrect and asserted only that "an immigration officer wrote [his] address incorrectly"); Osorio-Hernandez v. Lynch , 602 F. App'x 194, 194 (5th Cir.2015) ("[I]f the alien moves or discovers that an incorrect address has been provided, he has an obligation to provide the immigration court with his current address...