Ramos-Portillo v. Barr

• Decision Date: 01 April 2019
• Docket Number: No. 17-60254,17-60254
• Parties: Jose Nicolas RAMOS-PORTILLO, Petitioner, v. William P. BARR, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

919 F.3d 955

Jose Nicolas RAMOS-PORTILLO, Petitioner,

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

No. 17-60254

United States Court of Appeals, Fifth Circuit.

FILED April 1, 2019

Roy Kevin Petty, Richard Clark Harrist, Petty & Associates, P.L.L.C., Dallas, TX, for Petitioner.

Raya Jarawan, Esq., Trial Attorney, Office of Immigration Litigation, John Frederick Stanton, U.S. Department of Justice, Office of Immigration Litigation, Rosanne M. Perry, Trial Attorney, U.S. Department of Justice, Civil Division/OIL, Washington, DC, for Respondents.

Before JOLLY, ELROD, and WILLETT, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Jose Nicolas Ramos-Portillo, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals (BIA) that dismissed his appeal of the denial of his motion to reopen. We deny Ramos-Portillo’s petition for review.

I.

In 1993, Ramos-Portillo entered the United States without inspection and was detained by the Immigration and Naturalization Service (INS) near Laredo, Texas. Immigration officials recorded Ramos-Portillo’s information on Form I-213, entitled "Record of Deportable Alien," which listed "Canton Paplonia, San Miguel, El Salvador" as his permanent residence but did not include a U.S. address.

The INS released Ramos-Portillo after personally serving him with an Order to Show Cause and Notice of Hearing (OSC), written in both English and Spanish. The OSC informed Ramos-Portillo that he was deportable for entering without inspection under Section 241(a)(1)(B) of the Immigration and Nationality Act and that a deportation hearing would "be calendared and notice provided by the office of the immigration judge." The OSC also stated that notice would be "mailed to the address provided by [Ramos-Portillo]." On its face, the OSC warned Ramos-Portillo that he "DID NOT PROVIDE A UNITED STATES ADDRESS" and that he was "required by law to provide immediately in writing an address ... where [he could] be contacted." Immigration officials provided Ramos-Portillo with a Form EOIR-33, entitled "Change of Address Form," with which he could provide his current mailing address to the immigration court. Ramos-Portillo signed a certificate of service, acknowledging his receipt of the OSC.

During the four-month period after his release, Ramos-Portillo did not send the Form EOIR-33 to the immigration court and subsequently failed to appear at his deportation hearing. The immigration judge (IJ) determined that because Ramos-Portillo "failed to inform the Attorney General of [his] address, ... no notice of the deportation hearing could be issued." Accordingly, the IJ ordered Ramos-Portillo to be deported in absentia .

More than 22 years later, Ramos-Portillo moved to reopen his proceedings and to rescind the in absentia deportation order. Ramos-Portillo insisted that he never received notice of the previous hearing and that there was no evidence that notice was sent to the Salvadoran address listed on the Form I-213. Therefore, Ramos-Portillo contended, he had "reasonable cause" for not appearing at the hearing. The IJ denied his motion, reasoning that the immigration court was not required to mail the notice of the hearing because Ramos-Portillo "did not provide his address as required."

Ramos-Portillo appealed the IJ’s denial of his motion to reopen to the BIA, which dismissed his appeal. The BIA concluded that "there [was] no evidence in the record[ ] that [Ramos-Portillo] provided an address to the Immigration Court prior to the issuance of his in absentia deportation order"; and therefore, "no separate notice of the hearing was required to be mailed to [Ramos-Portillo] by the court." The BIA further determined that Ramos-Portillo failed to establish that "providing a foreign address [was] sufficient or that certified mail could be delivered to a foreign address." "Even assuming that a foreign address was acceptable for the purpose of providing notice of his hearing," the BIA reasoned that Ramos-Portillo failed to establish that he provided a valid mailing address. Ramos-Portillo now petitions for review.

II.

We review the denial of a motion to reopen under a highly deferential abuse-of-discretion standard. Penalva v. Sessions , 884 F.3d 521, 523 (5th Cir. 2018). We uphold the BIA’s decision as long as it is not "capricious, irrational, utterly without foundation in the evidence, based on legally erroneous interpretations of statutes or regulations, or based on unexplained departures from regulations or established policies." Id. (quoting Barrios-Cantarero v. Holder , 772 F.3d 1019, 1021 (5th Cir. 2014) ). We review the BIA’s legal conclusions de novo "unless a conclusion embodies the [BIA’s] interpretation of an ambiguous provision of a statute that it administers; a conclusion of the latter type is entitled to the deference prescribed by [ Chevron ]." Singh v. Gonzales , 436 F.3d 484, 487 (5th Cir. 2006). In reviewing the BIA’s legal conclusions, if the text of the statute is clear, "that is the end of the matter; for the court, as well as the [BIA], must give effect to the unambiguously expressed intent of Congress." Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

III.

A.

We begin with the relevant statutory framework. Because Ramos-Portillo’s in absentia proceedings occurred in 1993, we apply the notice requirement set forth in 8 U.S.C. § 1252b (repealed 1996). Under the former § 1252b, an immigration court could order an alien who failed to attend his deportation hearing to be deported in absentia , if the government established "by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien [was] deportable." Id. § 1252b(c)(1). To satisfy the notice requirement, the government must have provided written notice—an OSC—in person or by certified mail, specifying the time and place of the hearing and the consequence of failing to attend the hearing. Id. § 1252b(a)(2)(A).

Section 1252b(a)(1)(F) requires that an OSC further specify:

(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number at which the alien may be contacted respecting proceedings under section 1252 of this title.

(ii) The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien’s address or telephone number.

(iii) The consequences ... of failure to provide address and telephone information pursuant to this subparagraph.

Id. § 1252b(a)(1)(F).¹ An alien may move to rescind an in absentia deportation order "upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with [ § 1252b(a)(2) ]." Id. § 1252b(c)(3).

In turn, however, an alien has an affirmative duty to provide an "address ... at which [she] may be contacted respecting [the deportation] proceedings," and any changes of address, to the Attorney General.² Id. § 1252b(a)(1)(F). Under the implementing regulation, "[i]f the alien’s address is not provided on the [OSC], or if the address on the [OSC] is incorrect, the alien must provide to the [immigration court] where the [OSC] has been filed, within five days of service of the [OSC], a written notice of an address ... on Form EOIR-33, change of address form." 8 C.F.R. § 3.15(c)(1) (1993).

An alien’s failure to provide an address to the immigration court excuses the government’s statutory obligation to provide written notice before initiating an in absentia proceeding. 8 U.S.C. § 1252b(c)(2) ("No notice shall be required ... if the alien has failed to provide the address required under subsection (f)(2) of this section."). In applying the newer version of the statute, 8 U.S.C. § 1229(a), we have observed time and time again that "an in absentia removal order should not be revoked on the grounds that an alien failed to actually receive the required statutory notice of his removal hearing when the alien’s failure to receive actual notice was due to his neglect of his obligation to keep the immigration court apprised of his current mailing address." Hernandez-Castillo v. Sessions , 875 F.3d 199, 204–05 (5th Cir. 2017) (quoting Gomez-Palacios v. Holder , 560 F.3d 354, 360–61 (5th Cir. 2009) ); see also Mauricio-Benitez v. Sessions , 908 F.3d 144, 147 (5th Cir. 2018). The same rule applies to the predecessor statute, 8 U.S.C. § 1252b : an in absentia deportation order will not be revoked for lack of notice if the alien failed to provide the immigration court with his current mailing address.³ See id. § 1252b(c)(2).

B.

In interpreting § 1252b(a)(1)(F)(i), Ramos-Portillo argues that § 1252b(a)(1)(F)(i) plainly allows an alien to satisfy his obligation to provide an address to the immigration court by providing a foreign address, because § 1252b(a)(1)(F)(i) only requires an address "at which the alien may be contacted," which could be a foreign or U.S. address. Assuming arguendo that de novo review applies without any deference to the BIA on its interpretation of § 1252b, we disagree with Ramos-Portillo that an alien may satisfy his obligation under § 1252b(a)(1)(F)(i) by providing a foreign address.⁴

In interpreting a statute, we do not look at a word or a phrase in isolation. The meaning of a statutory provision "is often clarified by the remainder of the statutory scheme ... because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law." Util. Air Regulatory Grp. v. E.P.A. , 573 U.S. 302, 321, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014) (quoting United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd. , 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) ); Matter of Lopez , 897 F.3d 663, 670 n.5 (5th Cir. 2018) ("We ought to ‘consider the entire text, in view of its structure and of the physical and logical...