Singh v. Garland

• Decision Date: 16 September 2022
• Docket Number: 21-3812
• Parties: LAKHVIR SINGH, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

LAKHVIR SINGH, Petitioner,
v.
MERRICK B. GARLAND, Attorney General, Respondent.

No. 21-3812

United States Court of Appeals, Sixth Circuit

September 16, 2022

NOT RECOMMENDED FOR PUBLICATION

ON PETITION FOR REVIEW FROM THE UNITED STATES BOARD OF IMMIGRATION APPEALS

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

OPINION

MURPHY, Circuit Judge

Lakhvir Singh, a citizen of India, came to the United States illegally, so immigration officials served him with a notice to appear at removal proceedings. The government later mailed Singh another notice identifying the date of his second hearing. Soon after, however, Singh moved without updating his address. When he failed to show up at this hearing, an immigration judge ordered him removed. Five years later, Singh sought to rescind this order by alleging that he had not received the mailed notice. The immigration judge denied his request, finding either that he had received the notice or that his failure to update his address had been the reason why he did not. The Board of Immigration Appeals affirmed that decision. It also rejected Singh's two other arguments: that the immigration court did not have jurisdiction because his initial "notice to appear" lacked the date and time of his initial hearing; and that the Board should reopen his proceedings on its own initiative. Singh now presents all three arguments to us. We reject the first two on the merits and dismiss the last one on jurisdictional grounds.

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Singh was born and raised in India. In early 2013, shortly after his eighteenth birthday, he attempted to evade authorities and enter the United States illegally at an Arizona point of entry. Immigration officials detained him.

During an interview with an asylum officer, Singh expressed a fear for his life if he returned to India. He and his father are Sikhs who supported Simranjit Singh Mann's political party after his father left the Akali Dal Badal party. According to Singh, members of his father's former party attacked Singh twice in retaliation for his father's decision to join a rival. The first attack left Singh hospitalized. When he informed the police, officers threatened Singh and ordered him to tell his father to switch parties. After the second attack, Singh opted to flee India. The asylum officer found that Singh had established a credible fear of persecution in his country.

While the government detained Singh in Arizona, an immigration official personally served him with a notice to appear in removal proceedings that would occur before an Arizona immigration court at a date and time "to be set." Admin. R. (A.R.) 109. A few days later, another official personally served Singh with a notice identifying the time and date of an initial hearing as 8:30 a.m. on April 25, 2013. Singh attended this scheduling hearing. Court staff served him with an additional notice setting his removal hearing for June.

A few days later, the government released Singh from custody. He told immigration officials that he planned to live at an apartment in Saginaw, Michigan, upon his release. He also asked the Arizona immigration court to change the venue of his immigration proceedings to Michigan. The court granted this request.

The Michigan immigration court scheduled Singh's next hearing for June 18, 2013. On May 17, court staff served him with a notice of this upcoming hearing by mailing the notice to him

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at the Michigan address that he had provided. Like the notices that Singh had received in person, this mailed notice warned him that he had a duty to update his address if it had changed and that his failure to appear at the hearing could result in the immigration court ordering his removal in his absence.

Despite these repeated warnings, Singh did not attend his June hearing. The immigration laws directed the court to order his removal "in absentia" as long as the government proved that he was "removable" and that he had been "provided" with the required "written notice[.]" 8 U.S.C. § 1229a(b)(5)(A). The court found these elements met and ordered Singh removed to India. Court staff also mailed this ruling to his Michigan address.

Over five years later, Singh moved to reopen his immigration proceedings based on the claim that he had not received notice of his June 2013 hearing. See id. § 1229a(b)(5)(C)(ii). In an affidavit, Singh swore that he had not received the notice mailed to his Michigan address and that he would have appeared if he had known about the hearing. He explained that he had moved to New York from Michigan in "early June of 2013." A.R. 61. Singh noted further that a New York court had granted his petition to appoint a U.S. resident as his guardian just before his twenty-first birthday in 2016. Since then, he had filed an immigration form designed to help him remain in this country based on this family relationship. Singh lastly attached an asylum application to his motion to reopen.

An immigration judge denied Singh's motion. Singh bore the burden to prove that he had not received notice of the hearing and had given his current address to the immigration court. According to the judge, Singh did neither. The judge highlighted that Singh had waited five years before attempting to reopen the proceedings and had failed to provide his New York address. The

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judge also pointed out that the notice had been mailed over two weeks before Singh had moved to New York and that it had not been returned as undelivered.

In an appeal to the Board of Immigration Appeals, Singh raised three claims. He argued that the immigration judge wrongly failed to credit his evidence that he had not received notice of the June 2013 hearing. He suggested that the immigration court lacked jurisdiction because his "notice to appear" had not identified the date and time of his proceedings, as required by Pereira v. Sessions, 138 S.Ct. 2105 (2018). And he asked the Board to reopen his case on its own initiative because his asylum request had merit.

The Board rejected each claim. It summarily affirmed the immigration judge's conclusion that Singh had failed to prove that he had not received notice of the hearing. The Board also held that Singh's Pereira-based jurisdictional argument was "precluded by further case law"-namely, Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021). A.R. 3. It lastly denied Singh's request that it reopen his case on its own initiative because he had not first sought this relief with the immigration judge. The Board added that, in any event, Singh had not shown the exceptional circumstances required to justify this type of reopening.

II

A

Singh raises the same three arguments in this court that he raised with the Board. These arguments implicate the immigration laws on three topics: (1) the notice that the government must give to immigrants, (2) the consequences for immigrants who fail to attend their hearings, and (3) the relief that those immigrants may later seek. We thus start by summarizing these laws.

First, the immigration laws seek to ensure that immigrants receive proper notice about their removal proceedings. See 8 U.S.C. § 1229(a). Paragraphs (1) and (2) of § 1229(a) require the

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government to provide two different types of notices. See Valadez-Lara v. Barr, 963 F.3d 560, 565-66 (6th Cir. 2020). Paragraph (1) sets forth the rules for an initial "notice to appear" that begins the removal process. 8 U.S.C. § 1229(a)(1). A notice to appear must alert an immigrant of many things, including the "nature of the proceedings," the "time and place at which the proceedings will be held," and the "consequences" for failing to show up. Id. § 1229(a)(1)(A), (G)(i)-(ii). Paragraph (2) sets forth the rules for subsequent notices when there has been "any change or postponement in the time and place of" the removal proceedings. Id. § 1229(a)(2). This notice only needs to list the "new time or place of the proceedings" and the "consequences" if the immigrant fails to attend. Id. § 1229(a)(2)(A).

The government must serve these different notices in the same way. It must give the notices to an immigrant "in person" when "practicable[.]" Id. § 1229(a)(1), (2)(A). When "personal service is not practicable," though, the government may serve the notices "by mail[.]" Id. Yet it could not serve an immigrant in person or by mail if it did not know where the immigrant lived. So immigrants must "provide" a "written record of an address" at which they may be "contacted" about their proceedings. Id. § 1229(a)(1)(F)(i). They also must "immediately" "provide" a "written record of any change" of address. Id. § 1229(a)(1)(F)(ii). To ensure that immigrants know of these address requirements, the notice to appear must include information about the requirements. Id. § 1229(a)(1)(F)(i)-(ii).

Second, given these notice protections, Congress expected immigrants to attend their removal proceedings and imposed severe consequences on those who do not. An immigration judge must order an immigrant's removal "in absentia" if the government shows both that the immigrant is "removable" and that the government provided the required "written notice":

Any alien who, after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided to the alien or the alien's counsel of record,

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does not attend a proceeding under this section, shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable (as defined in subsection (e)(2)).

Id. § 1229a(b)(5)(A). If the government has sent the notice to "the most recent address" that the immigrant "provided under section 1229(a)(1)(F)," an immigration judge should treat that "written notice" as "sufficient[.]" Id. And if an immigrant "has failed to provide the address required under section 1229(a)(1)(F)," an...