Thompson v. Lynch

• Decision Date: 12 June 2015
• Docket Number: No. 14–3899.,14–3899.
• Citation: 788 F.3d 638
• Parties: Anthony THOMPSON, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

788 F.3d 638

Anthony THOMPSON, Petitioner

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 14–3899.

United States Court of Appeals, Sixth Circuit.

June 12, 2015.

ON BRIEF:Blake P. Somers, Blake P. Somers LLC, Cincinnati, Ohio, for Petitioner. Manuel A. Palau, United States Department of Justice, Washington, D.C., for Respondent.

Before: GILMAN, ROGERS, and SUTTON, Circuit Judges.

GILMAN, J., delivered the opinion of the court in which ROGERS, J., joined, and SUTTON, J., joined in part. SUTTON, J. (pp. 649–50), delivered a separate opinion concurring in part and in the judgment.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Petitioner Anthony Thompson, a native of Jamaica, was arrested on marijuana-trafficking charges in Cleveland, Ohio in March 1999. While he was detained, an officer of the former Immigration and Naturalization Service (INS) processed Thompson and personally issued him a Notice to Appear. Soon thereafter, the immigration court in Cleveland mailed Thompson notice of his upcoming removal hearing. Thompson failed to appear at the hearing and was ordered removed in absentia. Fourteen years later, Thompson moved to reopen his removal proceedings, arguing that he did not receive notice of the 1999 hearing. The immigration judge (IJ) denied Thompson's motion and the Board of Immigration Appeals (BIA) upheld that order. Thompson now petitions this court for review. For the reasons set forth below, we DENY his petition.

I. BACKGROUND

A. Factual and procedural background

The relevant facts in this case are not disputed and were aptly summarized by the BIA as follows:

The respondent was arrested by the Cleveland police department in 1999 because he was present at a house during a controlled drug delivery at 7305 Colfax Road, Cleveland, Ohio 44104, and he was placed under an immigration detainer. The Notice to Appear was issued on March 9, 1999, and it alleged that the respondent entered the United States on an unknown date at an unspecified location. The respondent received personal service of the Notice to Appear, which he signed, and which listed his address as 2761 E. 126 Street, Cleveland, Ohio 44120. It informed him about his responsibility to inform immigration authorities about any address changes and the consequences for failure to appear. The Form I–213 also listed the respondent's address as 2761 E. 126 Street, Cleveland, Ohio 44120. A hearing notice was mailed to the respondent at the E. 126 Street address informing him of a hearing scheduled for December 17, 1999. It was not returned by the Postal Service.

Following a hearing conducted in absentia on December 17, 1999, at which [Thompson] failed to appear and the legacy Immigration and Naturalization Service (INS) presented evidence regarding his removability, an Immigration Judge found him subject to removal as charged, determined that he had abandoned all potential applications for relief, and ordered him removed from the United States. A copy of the removal order was mailed to the respondent at the E. 126 Street address and it was not returned by the Postal Service.

Over 14 years later, on March 13, 2014, [Thompson], through counsel, filed a motion to rescind his in absentia removal order. He alleged that the INS officer who interviewed him in the Cleveland jail told him that the house on Colfax Road was a “drug house,” and that he should move to a different house. [Thompson] further claimed that he told the INS officer that he knew a woman who lived at the E. 126 Street address. However, after his release from jail, he indicated that the woman refused to permit him to live at the E. 126 Street address and that he therefore resided at the Colfax Road address. [Thompson] alleged that it was error for the INS officer to list the E. 126 Street address on the Notice to Appear because he did not inform the officer that he resided at that address. He did not deny that he received and signed the Notice to Appear, which contained detailed information about an alien's responsibility to inform immigration authorities about any address changes and about the consequences for failure to appear.

...

... In a decision dated August 2, 2014, the Immigration Judge denied the respondent's motion to reopen because the hearing notice was mailed to the E. 126 Street address listed in the Notice to Appear and the Notice to Appear informed him of his responsibility to report any address changes. Although he claimed that he did not live at the E. 126 Street address, the Immigration Judge noted that he had not provided any information about where he was living in 1999, and that his affidavit about his residence in 1999 was insufficient corroboration. Furthermore, the respondent did not report his Colfax Road address as his residence after he allegedly learned that he could not live at the E. 126 Street address and therefore he did not fulfill his obligation to report any address changes as set forth in the instructions contained in the Notice to Appear. Finally, the Immigration Judge observed that the respondent did not take any action to resolve his immigration status even though he knew he had been placed in removal proceedings when he signed the Notice to Appear in 1999, and he did not indicate whether he was eligible for any form of relief in 1999 which would have motivated him to appear for his hearing.

(citations omitted) (brackets added).

The BIA affirmed the IJ's decision. It found that the IJ was justified in ordering Thompson's removal in absentia because either (1) Thompson did not actually live at East 126 Street and failed to “fulfill his obligation to report his address change,” or (2) he did live at the East 126 Street address but failed to receive the mailed notice due to “some failure in the internal workings of the household” (quoting Matter of G–Y–R–, 23 I. & N. Dec. 181, 189 (BIA 2001) ). The BIA did not attribute Thompson's failure to appear to any mistake by the government.

II. DISCUSSION

A. Standard of review

“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 BIA's denial of such a motion under the abuse-of-discretion standard. Camaj v. Holder, 625 F.3d 988, 991 (6th Cir.2010). The BIA 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) ). Where, as here, the BIA provides its own reasoning for the denial, rather than summarily affirming the IJ, we review only the BIA's decision. Cordova v. Gonzales, 245 Fed.Appx. 508, 511–12 (6th Cir.2007).

B. The BIA did not abuse its discretion in finding that Thompson failed to rebut the presumption of receipt of notice

1. Notice of removal proceedings

Removal proceedings under the Immigration and Nationality Act are initiated when an alien is provided with notice of the proceedings through service of a Notice to Appear. 8 U.S.C. § 1229(a)(1). A Notice to Appear must provide the alien with notice of particular information, including the nature of the proceedings against him, the acts or conduct alleged to be in violation of law, and the time and place at which the removal proceedings will be held. Id. § 1229(a)(1). Where, as here, the Notice lists the hearing time as “to be set,” “the Immigration Court shall be responsible for scheduling the initial removal hearing and providing notice to the government and the alien of the time, place, and date of hearing.” 8 C.F.R. § 1003.18(b).

An alien may be served with a Notice to Appear (or notice of the time and place of the removal hearing) either in person or by mail. 8 U.S.C. § 1229(a)(1). Pursuant to § 1229(c), service by mail is considered sufficient if there is proof of attempted delivery to the last address provided by the alien in accordance with § 1229(a)(1)(F). Section 1229(a)(1)(F), in turn, requires that the Notice inform the alien of his affirmative duty to provide “the Attorney General” with a written record of (1) “an address and telephone number (if any) at which the alien may be contacted,” and (2) “any [subsequent] change of the alien's address or telephone number.” Change-of-address notifications provided to either the Attorney General or to the immigration court—both of which are under the Department of Justice's umbrella—are sufficient to satisfy § 1229(a)(1)(F). Qumsieh v. Ashcroft, 134 Fed.Appx. 48, 50–51 (6th Cir.2005).

2. Reopening of removal proceedings

Failure to appear at a removal hearing may result, as it did here, in the IJ's ordering that the alien be removed in absentia. 8 U.S.C. § 1229a(b)(5). The immigration court may rescind an in absentia removal order and reopen proceedings in one of three circumstances: (1) the alien files a motion within 180 days of the removal order and demonstrates that he failed to appear due to exceptional circumstances, (2) the alien files a motion at any time showing that he failed to appear because he was in federal or state custody, or (3) the alien files a motion at any time showing that he did not receive proper written notice. Id. § 1229a(b)(5)(C). Thompson's motion proceeds under the third category.

In order to prevail on his claim of nonreceipt, Thompson must overcome the presumption of delivery that arises when a Notice to Appear or notice of hearing is properly addressed and mailed to the last address provided by the alien. See Ba v. Holder, 561 F.3d 604, 607 (6th Cir.2009) (citing Matter of M–R–A–, 24 I. & N. Dec. 665, 673 (BIA 2008) ). “To do so, [Thompson] must show: (1) that he provided the court with a correct, current address; and (2) that the notice was never received.” See Timchenko v. Holder, 485...