Gustavo Barrios-Cantarero v. Eric Holder, Jr.
2014 U.S. App. LEXIS 22370
| 5th Cir. | 2014Background
- Gustavo Barrios-Cantarero, a Guatemalan national, entered the U.S. with his brother on May 30, 2001; each received separate NTAs and gave the same Fremont, CA address.
- An immigration court Notice of Hearing (NOH) mailed June 28, 2001 was addressed only to the brother, Adrian Eliseo, and used singular language referring to "the Alien" and "the case," though the header listed two case numbers.
- Barrios-Cantarero missed the September 25, 2001 hearing; an in absentia removal order was entered against him that same day.
- The court later mailed Barrios-Cantarero separate documents (including the in absentia order and other case papers) addressed directly to him, but the NOH itself was not addressed to him.
- More than a decade later he moved to reopen and rescind the in absentia removal order claiming improper notice; the IJ and BIA denied the motion and he petitioned for review.
- The Fifth Circuit granted the petition, holding the BIA abused its discretion because the NOH did not comply with statutory/regulatory notice requirements and thus Barrios-Cantarero was entitled to reopen proceedings at any time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barrios-Cantarero received proper written notice of hearing as required by INA and regulations | NOH was not addressed to him; singular language and absence of his name show he did not receive proper notice | Serving the NOH to the brother sufficed (cases allegedly consolidated; brother adult and could serve as representative) | NOH did not comply with 8 U.S.C. §1229(a) and 8 C.F.R. §103.8(a)(1)(i); BIA abused discretion; motion to reopen granted |
| Whether consolidation or brother’s adult status cured defective service | Even if cases related, record shows separate cases and separate service; nothing shows brother was his representative of record | DOJ: cases consolidated or service to adult sibling cured notice defect | Rejected: record shows separate proceedings; regulations require notice addressed to affected party—adult sibling not a substitute absent representation |
Key Cases Cited
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (standard: denial of motion to reopen reviewed for abuse of discretion)
- Alarcon-Chavez v. Gonzales, 403 F.3d 343 (5th Cir. 2005) (abuse of discretion where legal error occurred)
- Hernandez-Castillo v. Moore, 436 F.3d 516 (5th Cir. 2006) (de novo review of BIA legal conclusions with deference to reasonable regulatory interpretations)
- Zhu v. Gonzales, 493 F.3d 588 (5th Cir. 2007) (factual findings reviewed for substantial evidence)
- Lopez-Dubon v. Holder, 609 F.3d 642 (5th Cir. 2010) (discussing notice to minors and when notice must be sent directly to the alien)
- Silwany-Rodriguez v. I.N.S., 975 F.2d 1157 (5th Cir. 1992) (deference limits to BIA regulatory interpretations)