Marvin Cardona-Najera v. Jefferson Sessions, III
690 F. App'x 232
| 5th Cir. | 2017Background
- Cardona-Najera, a Honduran national, faced an in absentia removal order after failing to appear at an April 9, 1997 hearing.
- Three certified-mail notices were sent to the address he had provided; all were returned as undeliverable. He had been personally served earlier with an Order to Show Cause.
- He later asserted he had updated his address to the Immigration Court (using the correct form) and that nondelivery was not his fault, but offered no documentary proof of such a filing to the Immigration Court.
- He showed his Miami address was known to USCIS but did not change his address with the Immigration Court until after the in absentia order issued.
- He also sought reopening to pursue a provisional waiver of unlawful presence; the BIA concluded that such a motion was subject to a 90‑day time limit and that his filing was untimely.
- The BIA declined to reopen sua sponte; the Fifth Circuit dismissed part of the petition for lack of jurisdiction and denied the remainder.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cardona‑Najera proved he did not receive statutory notice and that failure to appear was through no fault of his own | He did not receive notice; he had provided an updated address to the Immigration Court and nondelivery was not his fault | Notices were sent by certified mail to the address he provided; returned undeliverable; no evidence he timely changed address with the Immigration Court | BIA decision upheld: substantial evidence supports finding he failed to overcome presumption of effective service |
| Whether motion to reopen to seek a provisional waiver required rescission of the in absentia order / whether that motion was timely | He argued BIA misstated that rescission wasn’t required to apply for a provisional waiver | BIA treated motion to reopen for provisional waiver as subject to 90‑day limitation and found it untimely | Cardona‑Najera abandoned challenge to timeliness; timeliness finding stands |
| Whether BIA abused discretion by not reopening sua sponte based on extraordinary circumstances | He urged BIA should exercise sua sponte authority because of extraordinary circumstances | Sua sponte reopening is discretionary and not reviewable by the court | Court lacks jurisdiction to review BIA’s refusal to reopen sua sponte |
| Whether denial of motion to reopen violated due process | He contended denial deprived him of a fair process to seek relief | BIA followed procedural standards; no reversible due process violation shown | Due process claim rejected |
Key Cases Cited
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (standard for reviewing denial of motion to reopen)
- Altamirano-Lopez v. Gonzales, 435 F.3d 547 (5th Cir. 2006) (motions to reopen are disfavored; due process standard in reopening context)
- Ojeda-Calderon v. Holder, 726 F.3d 669 (5th Cir. 2013) (strong presumption of effective service from certified-mail notice; evidence required to rebut)
- Maknojiya v. Gonzales, 432 F.3d 588 (5th Cir. 2005) (alien must present substantial and probative evidence showing nondelivery not due to failure to provide proper address)
- Ramos-Bonilla v. Mukasey, 543 F.3d 216 (5th Cir. 2008) (no jurisdiction to review BIA’s exercise of sua sponte reopening)
- Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir. 2003) (issue abandonment where petitioner fails to challenge a determination)