Santos v. Garland
| Docket Number | 21-60791 |
| Decision Date | 31 August 2023 |
| Parties | Joao Correa Dos Santos, Petitioner, v. Merrick Garland, U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Petition for Review of an Order of the Board of Immigration Appeals Agency No. A096 174 982
Before SMITH, SOUTHWICK, AND DOUGLAS, Circuit Judges.
Petitioner challenges the Board of Immigration Appeals' denial of his motion to reopen removal proceedings and rescind his in absentia removal order. The original 2003 Notice to Appear given to Petitioner soon after being detained did not schedule his removal hearing. When Petitioner was released a few weeks later, he signed a form that gave the address at which future notices could be given. The address had one incorrect letter in the name of the city but was otherwise completely accurate. Petitioner was informed he must provide notice of any change of address. A few weeks later, notice of his rescheduled hearing was sent to the slightly misspelled address. It was returned with the notations: "Moved, Left No Address," and "Attempted, Not Known." He did not attend the hearing and was ordered removed in absentia.
We conclude Petitioner forfeited his right to notice by failing to keep the immigration court apprised of his correct mailing address or to correct an erroneous address. We DENY his petition.
Joao Correa Dos Santos, a native and citizen of Brazil, entered the United States on January 21, 2003. He was detained by the Immigration and Naturalization Service ("INS") and personally served with a notice to appear ("NTA") alleging he was removable because he was present without admission or parole. See 8 U.S.C. § 1182(a)(6)(A)(i). The NTA directed Correa Dos Santos to appear before an immigration judge ("IJ") in Harlingen, Texas, at a date and time "to be set" and listed his address as the detention facility's address. The NTA, which was written in English, also stated that Correa Dos Santos was required to provide a mailing address, that failure to do so would forfeit his right to written notice of his removal hearing, and that failure to attend the hearing could result in removal in absentia. According to the NTA, Correa Dos Santos was provided oral notice in Spanish of the time and place of his hearing and the consequences of failing to appear.
On February 5, 2003, the immigration court served Correa Dos Santos by personal service on his custodial officer, INS with a Notice of Hearing ("NOH") setting his removal proceedings for 9:00 a.m. on February 18 2003. Correa Dos Santos was released from custody on February 5, 2003. At that time, he signed a form entitled "Notification Requirement for Change of Address," which was written in both English and Spanish and indicated his mailing address was "32 Joes Hill Rd., Danburg, CT 06811." On February 20, 2003, the immigration court mailed a second NOH to that address. That NOH, which reset Correa Dos Santos's hearing for 9:00 a.m. on April 4, 2003, was returned to the immigration court by the United States Postal Service marked "Moved, Left No Address." Correa Dos Santos did not appear for the hearing and was ordered removed in absentia. The removal order was also mailed to the "Danburg" address and subsequently returned to the immigration court with the marking "Attempted Not Known."
More than 16 years later, on August 1, 2019, Correa Dos Santos moved to reopen his removal proceedings in light of the Supreme Court's decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018). Correa Dos Santos argued he was eligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(b) because, under Pereira, his NTA was insufficient to trigger the so-called "stoptime" rule and, as a result, he had established more than ten years of continuous physical presence in the United States. In an affidavit attached to the motion, Correa Dos Santos stated that he moved to "Connecticut, CT" upon his release from detention and that he provided immigration authorities with his brother's address there. He also claimed that he "never received any letter saying [he] would have to appear at a court."
The IJ denied the motion to reopen. The IJ first determined that Correa Dos Santos's defective NTA was cured by the first NOH, which set his initial hearing for February 18, 2003. Because the immigration court had provided the information missing from the NTA, rescission of the removal order under Pereira was not warranted. Next, the IJ observed that the record included proof of attempted delivery of the second NOH and found that Correa Dos Santos had not shown that he satisfied his obligation to provide the immigration court with written notice of his correct mailing address. The IJ also explained that Correa Dos Santos's request for cancellation of removal was untimely, that he was not entitled to equitable tolling, and that he had not demonstrated prima facie eligibility for relief. Finally, the IJ declined to exercise their discretion to sua sponte reopen the case.
Correa Dos Santos appealed to the Board of Immigration Appeals ("BIA"). He again argued he was never provided with sufficient notice of his hearing and he had therefore accrued the period of continuous physical presence required to establish eligibility for cancellation of removal. Correa Dos Santos also raised several new arguments, including that INS failed to communicate with him in a language he understood, and that the in absentia removal proceeding was an unconstitutional "mass-deportation hearing." He further claimed, for the first time, that his brother and his brother's employer had provided INS with Correa Dos Santos's correct mailing address in Danbury, Connecticut, but that immigration officials mistakenly recorded the address as being in "Danburg." Emphasizing that the change of address form was not translated into Portuguese, Correa Dos Santos asserted he was not responsible for the typographical error in his address because the form was under the "complete control" of immigration authorities.
On September 15, 2021, the BIA dismissed the appeal. First, the BIA declined to consider the claims that Correa Dos Santos failed to raise before the IJ, including that he was not provided with a Portuguese interpreter and that immigration officials were responsible for any error in his recorded address. Observing that the second NOH was returned to the immigration court with the stamp "Moved, Left No Address," the BIA explained that it would not rescind an in absentia removal order for lack of notice where, as here, the alien apparently failed to update his current address with the immigration court. Finally, the BIA agreed with the IJ that Correa Dos Santos's motion to reopen was untimely and declined to address the merits of his application for cancellation of removal or to exercise sua sponte authority to reopen proceedings.
Correa Dos Santos filed a motion for reconsideration in the BIA on the grounds that the agency's determination that he received valid notice of his hearing violated the recent Supreme Court decision in Niz-Chavez v. Garland, 141 S.Ct. 1474, 1478 (2021), which held that an NTA sufficient to trigger the stop-time rule must be a "single document containing all the information an individual needs to know about his removal hearing" specified in 8 U.S.C. § 1229(a)(1). The Government did not oppose the motion, which appears to remain pending at the BIA. Correa Dos Santos also filed a timely petition for review of the BIA's decision. See 8 U.S.C. § 1252(b)(1).
The primary issue on appeal is whether Correa Dos Santos was entitled to have the in absentia removal order rescinded and proceedings reopened due to an improper address used to mail notice of the April 2003 hearing. There are other issues raised, though, and we will review them as well.
A motion to reopen removal proceedings is disfavored. Mauricio-Benitez v. Sessions, 908 F.3d 144, 147 (5th Cir. 2018). This court applies "a highly deferential abuse-of-discretion standard in reviewing" those motions. Hernandez-Castillo v. Sessions, 875 F.3d 199, 203 (5th Cir. 2017). Thus, the BIA's decision will be affirmed unless it is "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." Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014). We review questions of law de novo and findings of fact using the substantial-evidence test, under which we do not overturn factual findings "unless the evidence compels a contrary conclusion." Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). Finally, this court focuses its review on the BIA's order but may also review the IJ's underlying decision where it influenced the BIA's opinion. Hernandez-Castillo, 875 F.3d at 204.
Generally, we may uphold a BIA decision only on the basis of its stated rationale, but "[e]ven if there is a reversible error in the BIA's analysis, affirmance may be warranted where there is no realistic possibility that, absent the errors, the BIA would have reached a different conclusion." Luna-Garcia v. Barr, 932 F.3d 285, 291 (5th Cir. 2019) (quotation marks and citations omitted).
A Notice to Appear initiates removal proceedings. Johnson v. Guzman Chavez, 141 S.Ct. 2271, 2280 (2021). The NTA must specify certain information, including "[t]he time and place at which the proceedings will be held." 8 U.S.C. § 1229(a)(1)(G)(i). Section 1229(a)(2) applies when the Government wishes "to change the alien's hearing date." Niz-Chavez v. Garland, 141 S.Ct 1474, 1483 (2021). Changing the hearing date requires service of a...
To continue reading
Request your trial