Miller v. Sessions, No. 15-72645

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtWATFORD, Circuit Judge
Citation889 F.3d 998
Docket NumberNo. 15-72645
Decision Date08 May 2018
Parties Dorna Alicia MILLER, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.

889 F.3d 998

Dorna Alicia MILLER, Petitioner,
v.
Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 15-72645

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 15, 2018, San Francisco, California
Filed May 8, 2018


Kari E. Hong (argued), Boston College Law School, Newton, Massachusetts, for Petitioner.

Aimee J. Carmichael (argued), Trial Attorney; Mary Jane Candaux, Assistant Director; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Paul J. Watford and Michelle T. Friedland, Circuit Judges, and Jed S. Rakoff,* Senior District Judge.

OPINION

WATFORD, Circuit Judge:

This case requires us to interpret the interplay between two provisions of the Immigration and Nationality Act. One provision, 8 U.S.C. § 1229a(b)(5), authorizes immigration judges to order non-citizens removed from the country in absentia —that is, in the person's absence. Such orders may be entered when a non-citizen is directed to appear at a removal hearing but fails to show up, provided the government proves that it gave written notice of the hearing as required by statute and that the non-citizen is in fact removable. § 1229a(b)(5)(A). That rule would lead to obvious unfairness (and potential due process problems) if it were applied to someone who never actually received the required notice. So the statute provides a fail-safe mechanism: If the individual can show that she never received notice of the hearing, she may seek to rescind a removal order entered in absentia by filing a motion to reopen "at any time." § 1229a(b)(5)(C)(ii).1

889 F.3d 1000

The other provision at issue here is 8 U.S.C. § 1231(a)(5). That provision applies to non-citizens who (1) are ordered removed, (2) leave the United States while under the order of removal, and (3) reenter the country illegally. In that scenario, the Department of Homeland Security (DHS) may reinstate the prior removal order through a summary proceeding that does not involve a hearing before an immigration judge. See 8 C.F.R. § 241.8(a). When DHS reinstates a removal order pursuant to § 1231(a)(5), the prior removal order "is not subject to being reopened or reviewed." 8 U.S.C. § 1231(a)(5).2

The question presented in this case is what happens when these two statutory provisions collide? If DHS reinstates a removal order that was entered in absentia , can the non-citizen still file a motion to reopen under § 1229a(b)(5)(C)(ii)"at any time" on the ground that she never received notice of the prior hearing? Or does § 1231(a)(5) preclude such a motion by directing that the prior removal order "is not subject to being reopened or reviewed"?

This issue arises in a case involving Dorna Miller, a native and citizen of El Salvador who fled her home country after suffering horrific abuse there on account of her race. She entered the United States unlawfully in March 2004 and was promptly apprehended by immigration officials. They gave her a written notice ordering her to appear at a hearing before an immigration judge "on a date to be set at a time to be set." When Miller was released from detention, she gave an immigration official the address at which she would be residing, to which all future notices should be sent. Officials subsequently mailed several notices to that address, informing Miller that her removal hearing had been set for May 7, 2004. She says she never received the notices, and the record contains evidence to support her account as the notices were returned with the notation "not deliverable as addressed." (It appears that the government sent at least some of the notices to the incorrect zip code.) When Miller failed to appear for her hearing on May 7, the immigration judge ordered her removed to El Salvador in absentia . Miller says she never received a copy of the judge's decision and thus did not know that she had been ordered removed.

Years passed without any further contact from immigration officials. In 2011, Miller voluntarily moved to Canada with her family to seek refugee status there, but the Canadian government denied her request. In September 2013, Miller unlawfully attempted to reenter the United States. She was apprehended at the border, and immigration officials quickly discovered that she had been ordered removed in May 2004. Miller says this encounter is the first time she learned of her removal order. DHS immediately reinstated her May 2004 removal order under § 1231(a)(5). The government also charged Miller with the criminal offense

889 F.3d 1001

of illegal reentry in violation of 8 U.S.C. § 1326(a), to which she later pleaded guilty.

During the reinstatement proceeding, Miller did not challenge the validity of her May 2004 removal order, but she did express a fear of returning to El Salvador given the past abuse she had experienced there. An asylum officer interviewed Miller, found that she had a reasonable fear of persecution in El Salvador, and referred her case to an immigration judge for a hearing to determine whether she should receive withholding of removal. See 8 C.F.R. § 208.31(e). In April 2014, the immigration judge granted Miller that relief.3

In July 2014, after her reinstatement and criminal proceedings had concluded, Miller filed a motion to reopen seeking to rescind her May 2004 removal order. She sought rescission of...

To continue reading

Request your trial
14 practice notes
  • Martinez v. Barr, No. 17-72186
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 30, 2019
    ...8 U.S.C. § 1229a(b)(5)(C)(ii) —that provides jurisdiction to reopen a case for lack of notice at any time. See, e.g., Miller v. Sessions , 889 F.3d 998, 1001 (9th Cir. 2018). Diaz Martinez "put the BIA on notice" that she lacked notice of the amended charges such that the BIA had "an opport......
  • Ramachandran v. City of L. Altos, Case No.18-cv-01223-VKD
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • February 13, 2019
    ...these documents are appropriately noticed for the purpose of the Court's consideration of defendants' motion to dismiss. See Khoja , 889 F.3d at 998 ; see also Kim v. City of Belmont , No. 17-cv-02563-JST, 2018 WL 500269 (N.D. Cal. Jan. 22, 2018) (taking judicial notice of plaintiff's tort ......
  • Lopez-Angel v. Barr, No. 16-72246
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 27, 2019
    ..."contains no reasoning of any substance on the issue we consider here," Skidmore deference does not apply. See Miller v. Sessions , 889 F.3d 998, 1001–02 (9th Cir. 2018).952 F.3d 1048 III. Discussion.A. When does 8 C.F.R. § 1003.4 apply?The withdrawal sanction in § 1003.4 is triggered by an......
  • Lopez-Angel v. Barr, No. 16-72246
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 27, 2019
    ..."contains no reasoning of any substance on the issue we consider here," Skidmore deference does not apply. See Miller v. Sessions , 889 F.3d 998, 1001–02 (9th Cir. 2018).III. Discussion.A. When does 8 C.F.R. § 1003.4 apply?The withdrawal sanction in § 1003.4 is triggered by an alien's "depa......
  • Request a trial to view additional results
14 cases
  • Martinez v. Barr, No. 17-72186
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 30, 2019
    ...8 U.S.C. § 1229a(b)(5)(C)(ii) —that provides jurisdiction to reopen a case for lack of notice at any time. See, e.g., Miller v. Sessions , 889 F.3d 998, 1001 (9th Cir. 2018). Diaz Martinez "put the BIA on notice" that she lacked notice of the amended charges such that the BIA had "an opport......
  • Ramachandran v. City of L. Altos, Case No.18-cv-01223-VKD
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • February 13, 2019
    ...these documents are appropriately noticed for the purpose of the Court's consideration of defendants' motion to dismiss. See Khoja , 889 F.3d at 998 ; see also Kim v. City of Belmont , No. 17-cv-02563-JST, 2018 WL 500269 (N.D. Cal. Jan. 22, 2018) (taking judicial notice of plaintiff's tort ......
  • Lopez-Angel v. Barr, No. 16-72246
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 27, 2019
    ..."contains no reasoning of any substance on the issue we consider here," Skidmore deference does not apply. See Miller v. Sessions , 889 F.3d 998, 1001–02 (9th Cir. 2018).952 F.3d 1048 III. Discussion.A. When does 8 C.F.R. § 1003.4 apply?The withdrawal sanction in § 1003.4 is triggered by an......
  • Lopez-Angel v. Barr, No. 16-72246
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 27, 2019
    ..."contains no reasoning of any substance on the issue we consider here," Skidmore deference does not apply. See Miller v. Sessions , 889 F.3d 998, 1001–02 (9th Cir. 2018).III. Discussion.A. When does 8 C.F.R. § 1003.4 apply?The withdrawal sanction in § 1003.4 is triggered by an alien's "depa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT