Amoncio Cruz-Gomez v. Loretta Lynch
801 F.3d 695
6th Cir.2015Background
- Cruz‑Gomez, a Mexican national, overstayed a temporary work visa; DHS initiated removal proceedings.
- On March 20, 2012, Cruz‑Gomez and his then‑counsel appeared before an IJ, conceded removability, and were told two future dates: a master calendar hearing on March 12, 2013, and an individual hearing on August 8, 2013.
- Neither Cruz‑Gomez nor counsel appeared at the March 12, 2013 master calendar hearing; the IJ entered an in‑absentia removal order.
- On July 16, 2013, with new counsel, Cruz‑Gomez moved to reopen, arguing he did not receive notice of the March 12 hearing; the IJ denied the motion and the BIA dismissed the appeal.
- The administrative record contained written notices for both dates with certificates of service indicating Cruz‑Gomez’s original counsel was personally served on March 20, 2012.
- Cruz‑Gomez appealed to the Sixth Circuit, asserting improper notice of the March 12 hearing; the court reviewed the BIA’s denial for abuse of discretion.
Issues
| Issue | Cruz‑Gomez's Argument | Respondent's Argument | Held |
|---|---|---|---|
| Whether Cruz‑Gomez received proper notice of the March 12, 2013 hearing | He did not receive notice of the March 12 master calendar hearing | Counsel was personally served on March 20, 2012; notice to counsel constitutes notice to the alien | The record shows counsel was personally served in Cruz‑Gomez’s presence; that satisfied the INA here, so notice was proper |
| Whether personal service to counsel in court can substitute for personal service to the alien under 8 U.S.C. § 1229(a) | Argued that personal service to counsel does not always equal notice to the alien, stressing the statute’s text | Government/BIA treated notice to counsel as notice to the alien; prior circuit precedent allows service to counsel to suffice | Court held that when counsel is personally served in the alien’s presence, personal service to counsel may constitute personal service to the alien; statutes’ preference for in‑person service respected |
| Burden on motion to reopen to show lack of proper notice | Cruz‑Gomez bears the burden to demonstrate he did not receive proper notice | Government contends movant failed to meet burden because service certificate shows personal service to counsel | Court reiterated statutory allocation: movant must prove lack of proper notice and failed to do so here |
| Whether the BIA abused its discretion in denying the motion to reopen | The denial was erroneous because notice was inadequate | Denial was supported by record evidence of personal service to counsel in court | Court affirmed BIA; no abuse of discretion shown |
Key Cases Cited
- Camaj v. Holder, 625 F.3d 988 (6th Cir. 2010) (discussing notice requirements and when service on counsel may suffice)
- Haddad v. Gonzales, 437 F.3d 515 (6th Cir. 2006) (abuse‑of‑discretion standard for motions to reopen)
- Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) (interpretation of mandatory statutory language such as "shall")
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (requirement that notice be reasonably calculated to apprise interested parties)
- Garcia v. I.N.S., 222 F.3d 1208 (9th Cir. 2000) (holding personal service on petitioners’ counsel in petitioners’ presence satisfied notice)
- Hamazaspyan v. Holder, 590 F.3d 744 (9th Cir. 2009) (interpreting service‑to‑counsel provisions and their application when alien is represented)
- Link v. Wabash R.R. Co., 370 U.S. 626 (1962) (principle that a party is charged with knowledge of facts known to counsel)