Platero-Rosales v. Garland

• Decision Date: 15 December 2022
• Docket Number: 20-60707
• Citation: 55 F.4th 974
• Parties: Maria Del Carmen PLATERO-ROSALES, Petitioner, v. Merrick GARLAND, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

55 F.4th 974

Maria Del Carmen PLATERO-ROSALES, Petitioner,

v.Merrick GARLAND, U.S. Attorney General, Respondent.

No. 20-60707

United States Court of Appeals, Fifth Circuit.

FILED December 15, 2022

Adam Malik, Malik & Associates, P.L.L.C., Carrollton, TX, Sondra Mae Turin, Esquenazi & Turin, Attorneys at Law, Dallas, TX, for Petitioner.

Micah Engler, U.S. Department of Justice Civil Division/OIL, Washington, DC, Michele Yvette Frances Sarko, Esq., U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before Richman, Chief Judge, and Ho and Engelhardt, Circuit Judges.

James C. Ho, Circuit Judge:

A sovereign isn't a sovereign if it can't control its borders. That includes the power to remove aliens not lawfully entitled to enter or remain in the country. To ensure this power is used only against those with no legal right to be in the United States, federal law provides for notice and a hearing prior to removal. See 8 U.S.C. § 1229(a)(1). But to prevent abuse and evasion, federal law requires aliens to provide an address where notice should be sent—and authorizes removal in absentia if the alien fails to do so. See 8 U.S.C. § 1229a(b)(5)(A)–(B).

That's exactly what happened here. Petitioner is an illegal alien who was ordered removed in absentia. A decade and a half later, she moved to reopen her immigration proceedings on the ground that she never received notice of the time or location of her hearing. But it's undisputed that she never provided an address where she could be notified. So the United States was well within its authority to order her removal in absentia.

Petitioner complains that the United States informed her of her duty to provide address information where her notice to appear could be sent, but only in English, not Spanish. But the record indicates that she was warned in Spanish as well as English of the consequences of her failure to appear. And in any event, there is no legal authority to support her assertion that the United States is required to provide notice in any language other than English. Accordingly, we deny her petition for review.

I.

Maria Del Carmen Platero-Rosales entered the United States illegally from her native country of El Salvador in April 2005. Border officials immediately detained her and gave her written notice that she would be subject to removal proceedings. The notice required Platero-Rosales to appear before an immigration judge in Harlingen, Texas, at a date and time to be set. Platero-Rosales signed a certificate of service confirming that she was personally served with the notice.

The notice made clear that Platero-Rosales was required to provide border officials with her "full mailing address and telephone number" so that the United States could send her a notice of hearing. The notice further stated that, "[i]f you do not ... 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." Additionally, the notice explained that, "[i]f you fail to attend the hearing ... a removal order may be made by the immigration judge in your absence."

The Border Patrol agent who served Platero-Rosales later certified that he verbally explained to her in Spanish of "the consequences of failure to appear" at the removal hearing.

Platero-Rosales never provided a mailing address. On the date of her hearing, the immigration judge ordered her removal in absentia.

Fourteen years later, Platero-Rosales moved to reopen her removal proceedings. The immigration judge denied her motion. The Board of Immigration Appeals affirmed.

II.

When, as here, the BIA affirms an immigration judge's order without issuing a separate opinion, we review the immigration judge's order. See Moin v. Ashcroft , 335 F.3d 415, 418 (5th Cir. 2003). We review orders deciding whether to reopen removal proceedings "under a highly deferential abuse-of-discretion standard." Zhao v. Gonzales , 404 F.3d 295, 303 (5th Cir. 2005). We will not disturb the immigration judge's underlying factual findings "unless the evidence compels a contrary conclusion." Gomez-Palacios v. Holder , 560 F.3d 354, 358 (5th Cir. 2009).

III.

Before an alien may be subject to removal proceedings under 8 U.S.C. § 1229a —including in absentia removal proceedings under 8 U.S.C. § 1229a(b)(5) —the government must provide the alien with notice, known as a "notice to appear." The requirements of that notice are set forth in 8 U.S.C. § 1229(a)(1).

The notice must include, among other things, (A) "[t]he nature of the proceedings against the alien," (B) "[t]he legal authority under which the proceedings are conducted," (C) "[t]he acts or conduct alleged to be in violation of law," (D) "[t]he charges against the alien and the statutory provisions alleged to have been violated," and (E) the fact that "[t]he alien may be represented by counsel." 8 U.S.C. § 1229(a)(1)(A)–(E). There is no dispute that these items were included here.

In addition, the notice must make clear that the alien must provide the government with her address information. 8 U.S.C. § 1229(a)(1)(F). Platero-Rosales does not dispute that the notice stated that she was "required" to provide the government with her "full mailing address." Nor does she deny that the notice explained that the consequence of failing to provide her address was that "the Government shall not be required to provide you with written notice of your [removal] hearing."

Finally, the notice must provide the time and place of the hearing. 8 U.S.C. § 1229(a)(1)(G)(i). It's undisputed that the notice here did not provide notice of the date and time of the hearing. Accordingly, Platero-Rosales challenges her in absentia removal on that basis.

We reject her challenge. Federal law makes clear that the United States may remove an alien in absentia, and without notice, if the alien never provides the government with her address information as required. See 8 U.S.C. § 1229a(b)(5)(B) ("No written notice shall be required under subparagraph (A) if the alien has failed to provide the address required under section 1229(a)(1)(F) of this title."). See also Hernandez-Castillo v. Sessions , 875 F.3d 199, 205 (5th Cir. 2017) ("When an alien fails to provide a viable mailing address to [the Department of Homeland Security], the government need not provide notice of the alien's hearing."); Gomez-Palacios , 560 F.3d at 360–61 ("[A]n 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).").

And for good reason: The government can't provide her with the required notice if she refuses to provide the government with her address. Platero-Rosales acknowledges that she never provided the government with her address. Accordingly, she "forfeits h[er] right to notice" and "cannot seek to reopen the removal proceedings and rescind the in absentia removal order for lack of notice." Spagnol-Bastos v. Garland , 19 F.4th 802, 806 (5th Cir. 2021). See also Gudiel-Villatoro v. Garland , 40 F.4th 247, 249 (5th Cir. 2022) (holding that the rule that "an alien may move ... to reopen and rescind his in absentia removal order if the notice to appear did not include all of the information in 8 U.S.C. § 1229(a)(1), including the time and date of his removal hearing .... does not apply when the alien fails to provide an address where he can be reached").

Platero-Rosales counters that her notice was insufficient because it was provided only in English, not Spanish. But the immigration judge found that a Border Patrol agent also verbally explained her duty to appear at her removal hearing in Spanish. Platero-Rosales has not shown that the evidence "compels a contrary conclusion." Gomez-Palacios , 560 F.3d at 358.

Moreover, there is no legal basis to conclude that the United States was required to provide her with notice in Spanish. Nothing in the statute requires notice in any other language. See 8 U.S.C. § 1229(a). And "[d]ue process allows notice of a hearing to be given solely in English to a non-English speaker if the notice would put a reasonable recipient on notice that further inquiry is required." Ojeda–Calderon v. Holder , 726 F.3d 669, 675 (5th Cir. 2013). That condition is obviously met when an individual is presented with a document from a United States border official concerning her ability to enter and remain in the country.

We are not aware of any circuit that disagrees, and Platero-Rosales does not identify any. See Lopez v. Garland , 990 F.3d 1000, 1003 (6th Cir. 2021) (holding notice in English to a non-English speaker legally sufficient); Lopes v. Gonzales , 468 F.3d 81, 84–85 (2nd Cir. 2006) (same); Flores-Chavez v. Ashcroft , 362 F.3d 1150, 1155 n.4 (9th Cir. 2004) (same).

* * *

"[T]he common, national language of the United States is English. Our laws are printed in English and our legislatures conduct their business in English." Frontera v. Sindell , 522 F.2d 1215, 1220 (6th Cir. 1975). See also Soberal-Perez v. Heckler , 717 F.2d 36, 42 (2nd Cir. 1983) ("English is the national language of the United States"); United States v. Benmuhar , 658 F.2d 14, 19–20 (1st Cir. 1981) (describing English as "the national language").

Platero-Rosales has no legal basis to complain that her notice to appear was in English. We deny the petition for review.

Priscilla Richman, Chief Judge, concurring:

I concur in the panel's opinion. I write separately to offer my understanding of when "[n]o written notice shall be required" under 8 U.S.C. § 1229a(b)(5)(B) in removing an alien in absentia and, relatedly, why an alien can be validly notified in a written notice that is not "a ‘notice to appear’ " as defined in § 1229(a)(1), of the requirements in 8 U.S.C. §§ 1229(a)(1)(F)(i) and 1229(a)(1)(F)(ii) that an alien must "immediately" provide an address and...