Jose Ramos-Portillo v. William Barr, U. S. Atty Ge
919 F.3d 955
| 5th Cir. | 2019Background
- Ramos-Portillo, a Salvadoran national, entered the U.S. without inspection in 1993; INS served him an Order to Show Cause (OSC) that did not list any U.S. mailing address.
- OSC warned he had not provided a U.S. address and required him to file Form EOIR-33 to provide an address; he signed receipt of the OSC but did not file EOIR-33.
- Ramos-Portillo failed to appear at his deportation hearing and was ordered deported in absentia.
- Over 22 years later he moved to reopen, claiming he never received notice and that the I-213’s listing of his Salvadoran hometown sufficed as an address.
- The IJ denied reopening; the BIA dismissed the appeal, holding no address had been provided to the court and a foreign/town-only entry did not satisfy statutory/regulatory requirements.
- The Fifth Circuit reviewed for abuse of discretion and denied Ramos-Portillo’s petition for review.
Issues
| Issue | Ramos-Portillo's Argument | BIA/Government's Argument | Held |
|---|---|---|---|
| Whether a foreign address (or town name on I-213) satisfies duty to provide an address under former 8 U.S.C. § 1252b(a)(1)(F)(i) | A foreign address is an "address at which [he] may be contacted" and thus satisfies the statutory duty | The statute contemplates notice for deportation proceedings of aliens in the U.S.; the address must enable timely certified-mail notice—i.e., a U.S. address or a valid mailing address | Held: Address must be a U.S. address; the Salvadoran town/county listing did not satisfy the duty |
| Whether the immigration court was required to mail the hearing notice when the OSC lacked an address but the alien had provided some place-of-origin information to INS | Ramos-Portillo: INS notes of hometown meant he had provided an address; thus court should have mailed notice | BIA/IJ: Regulation 8 C.F.R. § 3.15 required the alien to file Form EOIR-33 within five days after OSC service; he did not, so no mailing was required | Held: BIA did not abuse discretion; Ramos-Portillo failed to comply with § 3.15 and thus court had no duty to mail separate notice |
| Whether the OSC’s lack of mailed notice violated due process and required reopening | Ramos-Portillo: Due-process right to notice was violated by absence of effective mailed notice | BIA/Govt: Motion to reopen is discretionary; denial of discretionary relief does not implicate a protected liberty interest | Held: Due-process claim rejected; reopening is discretionary and denial did not create a constitutional violation |
| Whether BIA abused its discretion in denying reopening after long delay and lack of attempt to notify court | Ramos-Portillo: Long passage of time and alleged lack of mailed notice justify reopening | BIA/Govt: He made no attempt to contact the court or provide an address for over 20 years; discretion to deny reopening was proper | Held: BIA’s denial was not an abuse of discretion |
Key Cases Cited
- Penalva v. Sessions, 884 F.3d 521 (5th Cir.) (standard for abuse-of-discretion review of motions to reopen)
- Hernandez-Castillo v. Sessions, 875 F.3d 199 (5th Cir.) (failure to keep court apprised of address defeats actual-notice claims)
- Mauricio-Benitez v. Sessions, 908 F.3d 144 (5th Cir.) (same principle regarding address duty under successor statute)
- Landon v. Plasencia, 459 U.S. 21 (1982) (deportation hearings concern aliens physically in the United States)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (deference framework for agency statutory interpretation)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (distinction about notice-to-appear; noted as inapposite here)
- Fuentes-Pena v. Barr, 917 F.3d 827 (5th Cir.) (regulatory duty to provide address to immigration court explained)
- Reno v. Flores, 507 U.S. 292 (1993) (aliens entitled to Fifth Amendment due process in deportation contexts)