Gualterio Santos-Santos v. William P. Barr
917 F.3d 486
6th Cir.2019Background
- Santos-Santos, a Mexican national, entered the U.S. without inspection in 1999 and was served an NTA at a Chicago address after being denied admission to Canada in March 2000. The NTA listed the hearing date/time as “to be determined.”
- A separate Notice of Hearing, mailed May 24, 2000 to the same Chicago address, scheduled a removal hearing for October 20, 2000. Santos-Santos did not appear and an in absentia removal order issued and was mailed to that address.
- In 2018 Santos-Santos moved to reopen, arguing the NTA was facially defective (no time/place) so the IJ lacked jurisdiction and he never received actual notice of the hearing date.
- DHS responded that a Notice of Hearing (with date/time) was mailed, the regulatory definition of an NTA (not the §1229(a) statutory definition) governs IJ jurisdiction, and Santos-Santos failed to rebut the presumption of proper delivery.
- The IJ denied reopening; the Board affirmed, concluding (1) the regulatory NTA satisfied jurisdictional requirements even without time/place, and (2) Santos-Santos failed to overcome the presumption that the Notice of Hearing was delivered. Petition for review denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an NTA that omits time and place voids IJ jurisdiction | Santos-Santos: NTA lacking date/time is facially defective and proceedings are void ab initio | DHS: Jurisdiction vests under agency regulations; time/place can be provided in subsequent Notice of Hearing | Court: Jurisdiction proper — regulations govern vesting and a later Notice of Hearing supplied required time/place information |
| Whether Santos-Santos rebutted presumption that he received the mailed Notice of Hearing | Santos-Santos: He never received the Notice of Hearing; NTA alone was insufficient | DHS: Notice of Hearing was mailed to address of record; presumption of delivery stands absent strong contrary evidence | Court: Santos-Santos failed to rebut presumption (no affidavits, no mail-return evidence, no due-diligence steps); motion to reopen properly denied |
Key Cases Cited
- Dada v. Mukasey, 554 U.S. 1 (2008) (characterizes motion to reopen as procedural relief for new evidence or changed circumstances)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (addressed whether an NTA lacking time/place triggers the stop-time rule)
- Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018) (holds jurisdiction vests when a subsequent Notice of Hearing supplies required time information)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (regulatory definition of NTA governs IJ jurisdiction; time/date not required in NTA to vest jurisdiction)
- Ba v. Holder, 561 F.3d 604 (6th Cir. 2009) (describes statutory NTA content and in absentia requirements)
- Scorteanu v. INS, 339 F.3d 407 (6th Cir. 2003) (movant bears burden to show improper notice for rescission of in absentia order)
- Thompson v. Lynch, 788 F.3d 638 (6th Cir. 2015) (lists non-exhaustive evidence to rebut presumption of delivery)
- Camaj v. Holder, 625 F.3d 988 (6th Cir. 2010) (standard of review for denial of motion to reopen)
- Ramani v. Ashcroft, 378 F.3d 554 (6th Cir. 2004) (appellate courts may deem issues waived if not adequately briefed)
- Haddad v. Gonzales, 437 F.3d 515 (6th Cir. 2006) (defines abuse-of-discretion standard for Board decisions)