Leonso Oqueli Reyes-Games v. U.S. Attorney General
20-14757
| 11th Cir. | Nov 10, 2021Background
- Reyes-Games, his wife, and three children (Honduran nationals) entered the U.S. near Del Rio on June 3, 2019; DHS served Notices to Appear (NTAs) charging unlawful presence.
- NTAs listed a Roswell, GA address (30 Old Holcomb Bridge Way) and instructed aliens to file Form EOIR-33 to update addresses; the NTAs gave no date/time for a hearing and were served in person with Spanish oral warnings.
- Petitioners later moved to 146 Old Holcomb Bridge Way and Reyes-Games says he told an ICE officer about the new address but never filed EOIR-33 with the immigration court.
- The immigration court mailed a Notice of Hearing for a master calendar on December 12, 2019 to the 30 Old Holcomb address; Petitioners did not appear and the IJ ordered removal in absentia.
- Petitioners moved to reopen, claiming they did not receive notice, that they had notified ICE, and that they intended to apply for asylum based on threats from the Mara 18 gang; the IJ and BIA denied the motion.
- The IJ/BIA found mail to the last known address sufficed, Petitioners failed to rebut the presumption of delivery, they had no pending application at the time of the hearing, and their mistaken belief that ICE and the court were the same did not constitute "exceptional circumstances." The court dismissed/denied the petition for review.
Issues
| Issue | Reyes-Games' Argument | Govt's Argument | Held |
|---|---|---|---|
| Whether notice by regular mail to the last known address satisfied statutory and due-process notice requirements | Mail to 30 Old Holcomb was not received; thus notice was insufficient | Mailing to last known address satisfies 8 U.S.C. §1229a(b)(5)(A) and due process | Mailing to last known address created presumption of delivery; requirements satisfied |
| Whether Petitioners rebutted presumption of delivery of the mailed hearing notice | Reyes-Games’ affidavit, ICE check-ins, diligence, and intent to apply for relief rebut the presumption | Petitioners never filed EOIR-33 or provided written notice to the court; evidence insufficient to overcome presumption | Petitioners failed to overcome the presumption of delivery; IJ/BIA did not abuse discretion |
| Whether notifying ICE (verbally) complied with the statutory written-address requirement (and whether Fuentes-Pena controls) | Notifying ICE about new address should count as providing notice to the Attorney General (or at least sufficed here) | Petitioners provided no written notice to ICE or the court; Fuentes-Pena timing issue not dispositive | Court declined to adopt Fuentes-Pena here because Petitioners did not show they gave written notice; verbal notice did not satisfy §1229(a)(1)(F) |
| Whether Reyes-Games’ mistaken belief that ICE and the immigration court are the same constitutes "exceptional circumstances" to rescind an in-absentia order or justify sua sponte reopening | Mistaken belief about agencies and reliance on ICE check-ins are exceptional and beyond their control | Such a mistake is not an "exceptional circumstance" under §1229a(e)(1); sua sponte reopening is discretionary and not reviewable | Mistake about agency identity did not constitute exceptional circumstances; sua sponte denial is discretionary and not reviewable |
Key Cases Cited
- Jeune v. U.S. Att'y Gen., 810 F.3d 792 (11th Cir. 2016) (standard of review when BIA adopts IJ decision)
- Zelaya v. United States, 293 F.3d 1294 (11th Cir. 2002) (mailing to last known address suffices for notice)
- Dominguez v. U.S. Att'y Gen., 284 F.3d 1258 (11th Cir. 2002) (notice by mail to last known address satisfies due process)
- Contreras-Rodriguez v. U.S. Att'y Gen., 462 F.3d 1314 (11th Cir. 2006) (standards for in-absentia removal: government must show removability and notice by clear, unequivocal, and convincing evidence)
- Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. 2004) (substantial-evidence review of administrative fact findings)
- Fuentes-Pena v. Barr, 917 F.3d 827 (5th Cir. 2019) (address-notification timing issue between ICE notice and NTA filing)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (Supreme Court decision on NTA defects relating to date/time language)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA time-and-place defects and stop-time rule)