Celia Martinez v. William Barr
941 F.3d 907
| 9th Cir. | 2019Background
- In 2007 Diaz Martinez was served with an NTA alleging entry near San Ysidro on or about August 25, 1989; she admitted the allegations and attended multiple hearings thereafter.
- On June 23, 2010 she filed a change-of-address form; that same day the Government issued an amended NTA replacing the specific date/place with allegations that she entered at an unknown place/on an unknown date. The amended NTA’s certificate of service was blank and listed her old address.
- Diaz Martinez did not appear at the October 27, 2010 hearing; the IJ ordered her removed in absentia, citing prior admissions and finding removability established as charged.
- In 2017 Diaz Martinez filed a motion to reopen (first MTR); the IJ denied it, she appealed to the BIA, and—while that appeal was pending—she filed a pro se petition for review in the Ninth Circuit. The BIA later dismissed her appeal; she filed a second MTR with the BIA which was denied as time/number-barred.
- The Ninth Circuit held it had jurisdiction despite the premature filing (the petition ripened when the BIA later issued a final order), and concluded the BIA abused its discretion because the record contained no evidence the amended NTA was served; the in absentia order therefore lacked substantial-evidence support and Diaz Martinez was prejudiced (plausible grounds for relief), so the case was remanded with instructions to reopen.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over a prematurely filed petition for review | Diaz Martinez: a pro se petition filed before a final BIA decision may ripen when the BIA later issues a final order, curing prematurity | Barr: premature petition should be dismissed; BIA finality is required before court review | Court: allowed ripening; followed Second/Third/Eleventh Circuits — jurisdiction exists if BIA later issues a final order and Government shows no prejudice |
| Exhaustion of the amended-NTA notice claim | Diaz Martinez: she raised lack-of-notice language before the BIA and thus put the BIA on notice to decide lack-of-service of the amended NTA | Barr: she failed to raise the specific argument that the amended NTA was not served; BIA had no opportunity to consider it | Court: ruled she sufficiently exhausted the lack-of-notice-of-charges claim (BIA was put on notice) |
| Validity of in absentia removal where amended NTA replaced prior allegations | Diaz Martinez: amended NTA was never served; IJ relied on admissions to a charging document she did not receive, so removal order is unsupported | Barr: record demonstrates proper notice of hearing; service of notice of hearing (not the amended NTA) suffices and Government argues service exists | Court: held no evidence of service of amended NTA; due-process/§1229(a) notice lacking, so in absentia order unsupported by substantial evidence and BIA abused discretion in denying reopening |
| Prejudice requirement for due-process-based reopening | Diaz Martinez: prejudice shown because she had plausible grounds for discretionary relief (long residence, U.S. citizen children with medical issues) and was deprived of opportunity to respond/seek continuance | Barr: even if amended NTA was not served, Diaz Martinez cannot show prejudice; removability was conceded and amendment made no practical difference | Court: found prejudice satisfied (plausible grounds for relief and loss of opportunity to respond); remanded to reopen |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (defines what an NTA must include under §1229(a))
- Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014) (discusses finality and left open the ripening question)
- Herrera-Molina v. Holder, 597 F.3d 128 (2d Cir. 2010) (premature petition may ripen when BIA later issues final order; Government must show prejudice)
- Khan v. Attorney Gen. of U.S., 691 F.3d 488 (3d Cir. 2012) (adopts ripening approach for premature petitions for review)
- Jimenez-Morales v. U.S. Atty. Gen., 821 F.3d 1307 (11th Cir. 2016) (same: premature petition ripened upon later final administrative action)
- Moreira v. Mukasey, 509 F.3d 709 (5th Cir. 2007) (contrary rule: dismiss premature petitions)
- Jaber v. Gonzales, 486 F.3d 223 (6th Cir. 2007) (contrary rule: no ripening of prematurely filed petitions)
- Al Mutarreb v. Holder, 561 F.3d 1023 (9th Cir. 2009) (in absentia removal requires clear, unequivocal, and convincing evidence; removability must be supported by substantial evidence)
- United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014) (distinguishes regulatory errors that implicate fundamental due process and explains prejudice/plausible-relief inquiry)