Santos-Santos v. Barr

• Decision Date: 28 February 2019
• Docket Number: No. 18-3515,18-3515
• Parties: Gualterio Lazaro SANTOS-SANTOS, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

917 F.3d 486

Gualterio Lazaro SANTOS-SANTOS, Petitioner,

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

No. 18-3515

United States Court of Appeals, Sixth Circuit.

Decided and Filed: February 28, 2019

ON BRIEF: David W. Williams, Santa Ana, California, for Petitioner. Jeffery R. Leist, Anthony C. Payne, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: SILER, COOK, and BUSH, Circuit Judges.

SILER, Circuit Judge.

Gualterio Lazaro Santos-Santos petitions for review of a 2018 order by the Board of Immigration Appeals ("Board") that affirmed an immigration judge’s ("IJ") decision denying the motion to reopen an in absentia removal order entered against Santos-Santos in 2000. Santos-Santos argues that the Notice to Appear ("NTA")¹ served on him did not include the "date, time, and place" at which he was required to appear, and the IJ therefore had no jurisdiction to enter a removal order. We DENY the petition.

I.

Santos-Santos, a citizen of Mexico, entered the United States without inspection near Nogales, Arizona, in 1999. On March 6, 2000, he and his wife attempted to enter Canada from Port Huron, Michigan, but were denied admission by Canadian immigration authorities and directed back to Port Huron. They were referred to secondary inspection and questioned as to their citizenship and status in the United States. Both admitted to being citizens of Mexico and entering the United States illegally. Santos-Santos said he illegally resided in Chicago, Illinois. The Immigration and Naturalization Service ("INS") personally served Santos-Santos with an NTA, charging him with inadmissibility under the Immigration and Nationality Act ("INA") § 212(a)(6)(A)(i),² and ordering him to appear for a hearing in Detroit. The NTA listed his address as "2444 South Troy, Chicago, Illinois, 60623," and indicated that the date and time of the hearing was "to be determined." On May 19, a "Certificate of Service of Charging Document with the Immigration Court" was issued to Santos-Santos at the same address, informing him that the NTA had been sent to the Detroit immigration court. On May 24, the Detroit immigration court issued a Notice of Hearing ordering him to appear on October 20, 2000; it was mailed to Santos-Santos at "2444 South Troy, Chicago, IL 60623." Santos-Santos failed to appear at his October 20, 2000, hearing and was ordered removed in absentia . The order was mailed to the same address. Santos-Santos claims he did not receive the in absentia order and only learned of it when he was involved with immigration proceedings in Los Angeles.

In 2018, Santos-Santos, through counsel, filed a motion to reopen the in absentia order with the immigration court. Santos-Santos argued that he never received notice of his hearing date, and that "[t]he record is silent as to whether the Service even attempted to provide Respondent with a Notice of Hearing." He further contended that, because the NTA did not include the date and time of his hearing, it was facially defective, rendering the proceedings void ab initio . In an attached declaration, Santos-Santos said that while he received the NTA that stated the date and time of the hearing were to be determined, he did not receive any other notices.

The Department of Homeland Security ("DHS")³ filed a response in opposition to Santos-Santos’s motion. It noted that a Notice of Hearing was sent on May 24, 2000 instructing Santos-Santos to appear on October 20, 2000. DHS contended, inter alia, that the presumption of regularity established that the notice was properly delivered and Santos-Santos had not adequately rebutted that presumption. DHS further argued that Santos-Santos failed to cite any authority supporting his argument that a lack of date and time of the hearing on the NTA meant that the IJ did not properly exercise jurisdiction over his case.

The IJ denied the motion to reopen for "the reasons stated in the opposition to the motion." Santos-Santos petitioned the Board, reiterating his claim that he never received notice of the hearing and the IJ erred in exercising jurisdiction. The Board dismissed the appeal on May 2, 2018, finding that there was no evidence that either the NTA or the in absentia order was returned to the immigration court. Further, the Board noted that Santos-Santos did not (1) argue that the notice was addressed incorrectly, (2) claim that he was having mail delivery problems at that address, (3) initiate proceedings to obtain relief, or (4) report what efforts he took to determine the status of his proceedings in the interim seventeen years before his motion to reopen. The Board also determined that an NTA need not include the time and date of a removal hearing, and that the statutory notice requirements may be satisfied when the information is provided in a subsequent notice. Finally, the Board concluded that Santos-Santos had not shown that sua sponte reopening of his proceedings was warranted. This petition for review followed.

II.

"A motion to reopen is a form of procedural relief that asks the Board to change its decision in light of newly discovered evidence or a change in circumstances since the hearing." Dada v. Mukasey , 554 U.S. 1, 12, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) (internal quotation marks omitted). We review the Board’s denial of such a motion for abuse of discretion. Camaj v. Holder , 625 F.3d 988, 991 (6th Cir. 2010). The Board abuses its discretion only when its determination was made "without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group." Id. (quoting Haddad v. Gonzales , 437 F.3d 515, 517 (6th Cir. 2006) ). When the Board provides its own reasoning for affirming the denial of relief, we review only the Board’s decision, but to the extent that the Board adopts the reasoning of the IJ, we also review that decision. Thompson v. Lynch , 788 F.3d 638, 642 (6th Cir. 2015) (citation omitted); Al-Ghorbani v. Holder , 585 F.3d 980, 991 (6th Cir. 2009). Our review of an in absentia order is limited to: (1) the validity of the notice provided to the alien, (2) the reasons for the alien’s not attending the proceedings, and (3) whether the alien is removable. 8 U.S.C. § 1229a(b)(5)(D) ; Ba v. Holder , 561 F.3d 604, 606 (6th Cir. 2009) (citation omitted).

III.

Relying on Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), Santos-Santos argues that the NTA was facially deficient due to the lack of a time and place of the hearing. This deficiency, Santos-Santos contends, renders the removal proceedings void ab initio because the IJ was never properly vested with jurisdiction.

Pereira is distinguishable: that case (1) dealt with whether the narrow "stop-time" rule can be triggered by an NTA omitting the time and place of the initial hearing, and (2) addressed two statutory provisions distinct from the regulations at issue here. 138 S.Ct. at 2110, 2113–16 ; Hernandez-Perez v. Whitaker , 911 F.3d 305, 314 (6th Cir. 2018). Contrary to Santos-Santos’s argument regarding jurisdiction, we have recently held that "jurisdiction vests with the immigration court where ... the mandatory information about the time of the hearing, see 8 U.S.C. § 1229(a), is provided in a Notice of Hearing issued after the NTA." Hernandez-Perez , 911 F.3d at 314–15. As the Notice of Hearing containing the requisite information was sent to Santos-Santos—notwithstanding Santos-Santos’s claim that he did not receive the notice, addressed below—the IJ properly exercised jurisdiction.

Alternatively, we find that the INA contains language regarding "proceedings for deciding the inadmissibility or deportability of an alien[,]" but does not address jurisdictional prerequisites. See 8 U.S.C. § 1229a. Rather, the INA allows the Attorney General to promulgate regulations to govern removal hearings, which include provisions for when and how jurisdiction vests with the IJ. 8 U.S.C. §§ 1103(g)(2), 1229a(a) ; 8 C.F.R. §§ 1003.13, 1003.14(a). These regulations provide that "[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the [INS]." 8 C.F.R. § 1003.14. For proceedings like Santos-Santos’s, which were initiated after April 1, 1997, the "charging document" includes "a Notice to Appear,⁴ a Notice of Referral to Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien." 8 C.F.R. § 1003.13. The regulation does not cross-reference 8 U.S.C. § 1229(a)(1) ’s definition of a written "notice to appear." Instead, the regulations stipulate that an NTA, for purposes of vesting jurisdiction, must contain: (1) the nature of the proceedings against the alien; (2) the legal authority under which the proceedings are conducted; (3) the acts or conduct alleged to be in violation of law; (4) the charges against the alien and the statutory provisions alleged to have been violated; (5) notice that the alien may be represented, at no cost to the government, by counsel or other authorized representative; (6) the address of the Immigration Court where the INS will file the show cause order and NTA; (7) a statement that the alien must advise the Immigration Court of his or her current address and telephone number, and a statement that failure to do so may result in an in absentia hearing under 8 C.F.R. § 1003.26. 8 C.F.R. § 1003.15(b). An NTA for removal proceedings must also include the alien’s name and any known aliases, the alien’s address, the alien’s registration number, the alien’s alleged nationality and citizenship, and the language that the alien understands. 8 C.F.R. § 1003.15(c). Failure to include this information, however, "shall not be construed as affording the alien any substantive or procedural rights." 8 C.F.R. § 1003.15(c). No references to the time and place of the hearing are required to vest jurisdiction...