Rodriguez v. Garland, 20-60008

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: PER CURIAM.
• Citation: 31 F.4th 935 (Mem)
• Parties: Marcelo Eugenio RODRIGUEZ, also known as Marcelo Rodriguez Andueza, Petitioner, v. Merrick GARLAND, U.S. Attorney General, Respondent.
• Docket Number: 20-60008
• Decision Date: 19 April 2022

31 F.4th 935 (Mem)

Marcelo Eugenio RODRIGUEZ, also known as Marcelo Rodriguez Andueza, Petitioner,
v.
Merrick GARLAND, U.S. Attorney General, Respondent.

No. 20-60008

United States Court of Appeals, Fifth Circuit.

FILED April 19, 2022

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

Allison R. Frayer, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Richard Kelley, U.S. Department of Justice, Civil Division, Washington, DC, for Respondent.

Before Higginbotham, Willett, and Duncan, Circuit Judges.

Per Curiam:

The petition for panel rehearing is DENIED.

Additionally, the court having been polled at the request of one of the members of the court and a majority of the judges who are in active service not having voted in favor, rehearing en banc is DENIED.¹ In the en banc poll, eight judges voted in favor of rehearing (Chief Judge Richman and Judges Jones, Smith, Elrod, Haynes, Ho, Oldham, and Wilson), and nine judges voted against rehearing (Judges Stewart, Dennis, Southwick, Graves, Higginson, Costa, Willett, Duncan, and Engelhardt).

Stuart Kyle Duncan, Circuit Judge, joined by Higginbotham, Senior Circuit Judge, and Southwick, Higginson, and Willett, Circuit Judges, concurring in denial of en banc rehearing:

The court has declined to rehear this case en banc. That's the right call. The panel's decision was compelled by Niz-Chavez v. Garland , ––– U.S. ––––, 141 S. Ct. 1474, 209 L.Ed.2d 433 (2021), and has since been joined by the Ninth Circuit. See

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Singh v. Garland , 24 F.4th 1315, 1319 (9th Cir. 2022).¹ Our en banc resources are rarely well spent stirring up circuit splits.

A few responses to my esteemed dissenting colleagues.

First, the main dissent says "textual and contextual" differences distinguish the in absentia provision in this case from the stop-time provision in Niz-Chavez. See post at 941 (Elrod, J., dissenting).² Not so. Both reference the definition of "a ‘notice to appear’ " in 8 U.S.C. § 1229(a) :

• Stop-time is triggered "when the alien is served a notice to appear under section 1229(a) of this title." 8 U.S.C. § 1229b(d)(1).

• In absentia removal may be rescinded if the alien "did not receive notice in accordance with paragraph (1) or (2) of section 1229(a) of this title[.]" Id. § 1229a(b)(5)(C)(ii).

• In removal proceedings, "written notice (in this section referred to as a ‘notice to appear’)" shall be given, specifying various things. Id. § 1229(a)(1).

Niz-Chavez held that stop-time requires a single notice; notices-by-installment won't do. 141 S. Ct. at 1486. Why? The letter "a," signifying a "single document," appears in both the referencing provision ( § 1229b(d)(1) ) and the definition ( § 1229(a)(1) ): "Not once but twice it seems Congress contemplated ‘a’ single document." Id. at 1480, 1481.

In this case, the only difference is the lack of one "a." Instead of "a notice to appear," the in absentia provision demands "notice in accordance with paragraph (1) or (2) of section 1229(a)." 8 U.S.C. § 1229a(b)(5)(C)(ii) (emphasis added). The dissent thinks this difference makes all the difference. Post at 942 (Elrod, J., dissenting). It doesn't. Niz Chavez underscored that § 1229(a)(1) "stubbornly require[s] ‘a’ written notice containing all the required information." 141 S. Ct. at 1480. The in absentia provision pointedly requires "notice in accordance with" the very same definition, § 1229(a)(1) —which, again, stubbornly requires one document. 8 U.S.C. § 1229a(b)(5)(C)(ii). There is no meaningful difference between the two referencing provisions. They use different words (two "a's" vs. "in accordance with") to require the same thing: a single notice.

The dissent's best argument relies on a counterfactual in Niz-Chavez. See post at 942 (Elrod, J., dissenting). The Court imagined a law merely requiring " ‘notice’ in its noncountable sense," like one demanding the government "provide[ ] ‘notice’ (or perhaps ‘sufficient notice’) of the mandated information." Niz-Chavez , 141 S. Ct. at 1481. "This case," the dissent says, "appears to be the Court's counterfactual." Post at 943 (Elrod, J., dissenting). It's not. The in absentia provision doesn't merely demand "notice" or "sufficient notice," but "notice in accordance with [ § 1229(a)(1) or (2) ]." 8 U.S.C. § 1229a(b)(5)(C)(ii) (emphasis added). That's not "notice" in some fuzzy "noncountable sense." That's notice

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"in accordance with" a statute the Supreme Court has told us "stubbornly require[s] ‘a’ written notice containing all the required information." Niz-Chavez , 141 S. Ct. at 1480.

The dissent also proposes an alternate way of finding sufficient notice: the second notice "might have satisfied ‘notice’ in accordance with paragraph ... (2)." Post at 943 (Elrod, J., dissenting); see 8 U.S.C. §§ 1229a(b)(5)(C)(ii) ; 1229(a)(2). No, it couldn't have. Subsection (a)(2) applies to a "change in time or place of [removal] proceedings" and guarantees a written notice of "the new time or place of the proceedings." 8 U.S.C. § 1229(a)(2) (emphases added). The provision can't apply here. The alien never got an initial "time or place," so there was nothing to "change" and any subsequently set "time or place" wouldn't be "new." The Supreme Court has settled this point. In Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 2114, 201 L.Ed.2d 433 (2018), the Court explained that "paragraph (2) [in § 1229(a) ] presumes that the Government has already served a ‘notice to appear under section 1229(a) ’ that specified [the required] time and place."³ So (a)(2) is a red herring. It doesn't provide another way to find valid in absentia notice here.

Both dissents suggest the court should defer to the BIA's recent decision in Matter of Laparra , 28 I. & N. Dec. 425 (BIA 2022), which disagreed with the panel. See post at 944 (Elrod, J., dissenting); post at 945 (Ho, J., dissenting); see Laparra , 28 I. & N. Dec. at 436. Even assuming Chevron deference applies, however, we needn't accept an agency's reading that is "patently inconsistent with the statutory scheme." Texas v. United States , 809 F.3d 134, 178 n.160 (5th Cir. 2015) (citation omitted), affirmed by an equally divided court , 577 U.S. 1101, 136 S.Ct. 906, 193 L.Ed.2d 788 (2016). In Laparra , the BIA theorized that an alien—previously "served with a noncompliant notice to appear" under § 1229(a)(1) —could still be removed in absentia if served with a notice under § 1229(a)(2) specifying the omitted information. 28 I. & N. Dec. at 434.

That flies in the face of the Supreme Court's Pereira decision, which Laparra ignored. As Pereira explained, a valid (a)(2) notice "presumes that the Government has already served a ‘notice to appear under section 1229(a) ’ that specified [the required] time and place." 138 S. Ct. at 2114. "Otherwise," said the Court, "there would be no time or place to ‘change or postpon[e]." Ibid. (quoting § 1229(a)(2) ). So Laparra mangles "[t]he plain text [of § 1229(a) ], the statutory structure, and common sense." Singh , 24 F.4th at 1319. No Chevron for Laparra.⁴

Finally, the main dissent warns that the panel decision botches an "extraordinarily important" issue and will reopen many in absentia removals. Post at 938 (Elrod, J., dissenting). Those concerns are serious and, frankly, I share them. Not everyone loved Niz-Chavez . See 141 S. Ct. at 1488

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(Kavanaugh, J., dissenting) ("I find the Court's conclusion rather perplexing as a matter of statutory interpretation and common sense."). But we have to apply it and that's what the panel did.

Besides, the Niz-Chavez majority rejected these kinds of "raw consequentialist" criticisms.⁵ The Supreme Court sometimes breaks things. See McGirt v. Oklahoma , ––– U.S. ––––, 140 S. Ct. 2452, 2482, 207 L.Ed.2d 985 (2020) (Roberts, C.J., dissenting) ("[T]he Court has profoundly destabilized the governance of eastern Oklahoma."). If faithfully applying Niz-Chavez further backlogs our immigration system, this inferior court judge can only wait to see if Congress changes the law or the Supreme Court changes its mind.⁶

I respectfully concur in the decision not to rehear this case en banc.

Jennifer Walker Elrod, Circuit Judge, joined by Jones, Smith, and Wilson, Circuit Judges, dissenting from the denial of en banc rehearing:

The court should have taken this case en banc. Breaking from our precedents, the panel opinion holds that aliens removed in absentia after consciously failing to appear at their removal proceedings may reopen their cases and apply for rescission of removal if notice of their proceedings was sent in two documents instead of one. According to the panel, the Supreme Court's recent decision in Niz-Chavez v. Garland requires this result. In that case, the Supreme Court held that the stop-time rule in 8 U.S.C. § 1229b(d)(1) does not preclude cancellation of removal until the alien receives in a single document all of the information described in 8 U.S.C. § 1229(a)(1). In this case, without the benefit of oral argument or briefing on Niz-Chavez , the panel opinion applies Niz-Chavez to different statutory language in a different immigration...