Anthony Thompson v. Loretta Lynch
788 F.3d 638
6th Cir.2015Background
- Anthony Thompson, a Jamaican national, was arrested in Cleveland in March 1999 and detained on an immigration detainer. An INS officer issued and Thompson signed a Notice to Appear (NTA) listing 2761 E. 126 St. as his address.
- The immigration court mailed a hearing notice for December 17, 1999 to the E. 126 St. address; the mailing was not returned. Thompson did not appear and was ordered removed in absentia.
- Fourteen years later Thompson moved to reopen, alleging he actually lived at 7305 Colfax Rd., that the INS officer recorded the wrong address, and that he therefore never received the hearing notice.
- The IJ denied the motion to reopen for failure to rebut the presumption of receipt and for failing to show he fulfilled the statutory duty to provide or update his address; the BIA affirmed.
- The Sixth Circuit reviewed under the abuse-of-discretion standard and considered whether Thompson overcame the presumption of delivery or satisfied the statutory/regulatory duty to notify the government of his correct address.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Thompson rebutted the presumption that mailed notice was received | Thompson said he told INS his Colfax Rd. address but the NTA listed E.126 St., so he did not receive the hearing notice | Government: notice mailed to last address provided (E.126 St. on the signed NTA); presumption of delivery stands | Denied — Thompson failed to rebut presumption of receipt |
| Whether Thompson complied with 8 U.S.C. §1229(a)(1)(F) and related regulation (8 C.F.R. §1003.15(d)(1)) | Thompson: he provided correct address orally and did not change residence after the NTA was issued | Government: he signed an NTA listing E.126 St. and had a duty to ensure the government had a correct mailing address or to correct the NTA | Denied — court held Thompson had the obligation to provide/correct his mailing address and did not do so |
| Whether the BIA abused its discretion by relying on grounds not cited (Chenery issue) | Thompson relied on Chenery to argue the BIA’s reasoning was inadequate and that a post-hoc rationale cannot justify denial | Government: BIA’s reasoning tracked statutory/regulatory duties; board’s rationale supported denial | Denied — majority found BIA’s reasoning consistent with statute/regulation; concurrence stressed statutory basis avoids Chenery concern |
| Whether Ninth Circuit precedent in Velasquez-Escovar compels relief | Thompson: pointed to Velasquez as analogous where petitioner prevailed after showing government transcription error | Government: Velasquez is nonbinding; facts differ and BIA reasonably found obligation to correct/address applies | Denied — Sixth Circuit respectfully disagreed with and declined to follow Velasquez |
Key Cases Cited
- Dada v. Mukasey, 554 U.S. 1 (statutory background on motions to reopen and in absentia orders)
- Camaj v. Holder, 625 F.3d 988 (abuse-of-discretion standard for BIA denials)
- Ba v. Holder, 561 F.3d 604 (presumption of delivery when NTA mailed to last address)
- Velasquez-Escovar v. Holder, 768 F.3d 1000 (9th Cir. decision granting relief where NTA allegedly transcribed wrong address)
- SEC v. Chenery Corp., 332 U.S. 194 (limits on post hoc rationalizations for agency action)
- Haskins v. Prudential Ins. Co. of Am., 230 F.3d 231 (signature on form presumes knowledge of contents)