70 F.4th 232
5th Cir.2023Background
- Jorge Vicente Nivelo Cardenas (Ecuadorian) entered without inspection in July 1999, was detained, and received an NTA that did not specify hearing time/place.
- After release (Aug. 17, 1999) he signed forms listing his mailing address as “109 Cedar Ave, Patcbogue, NY 11772” (city name misspelled; correct: Patchogue).
- A notice of hearing for Jan. 28, 2000 was mailed to that address, returned by USPS marked “Attempted, Not Known,” and Nivelo Cardenas did not appear; IJ entered an in absentia removal order.
- In 2018 he moved to rescind the in absentia order and reopen, asserting he gave the correct address (Patchogue), citing a bag-and-baggage letter and an unsworn affidavit; the government did not respond.
- The IJ denied reopening (unsworn statement disregarded; proof of attempted delivery to last provided address); the BIA affirmed, finding he forfeited notice by failing to correct the erroneous address and lacked due diligence.
- Nivelo Cardenas petitioned for review in the Fifth Circuit; the panel considered whether Rodriguez/Niz‑Chavez single‑document rules or §1229a(b)(5)(B) forfeiture governed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the in absentia order should be rescinded because hearing notice was mailed to a misspelled city address | Nivelo Cardenas: notice never received because notice was mailed to an incorrectly spelled city; he gave correct Patchogue address | Government: he provided the misspelled address and failed to correct it, so service to the last address is sufficient; he forfeited notice under §1229a(b)(5)(B) | Held: Forfeiture — mailing to last address he provided (even if misspelled) and failure to correct it means he forfeited right to notice; petition denied |
| Whether Pereira / Niz‑Chavez single‑document rule (time/place must be in one document) renders the proceedings void or requires reopening | Nivelo Cardenas: NTA lacked time/place (Pereira) and thus jurisdiction/relief should follow | Government: even if NTA lacked time/place, §1229a(b)(5)(B) bars relief when alien fails to provide/update an address | Held: Rodriguez (single‑document rule) does not control here; even if Niz‑Chavez/Pereira apply, they do not override forfeiture when alien failed to provide a viable address |
| Whether the BIA/IJ improperly considered evidence not produced by petitioner’s FOIA or engaged in de novo factfinding | Nivelo Cardenas: BIA relied on records not in his FOIA release and made improper factfinding | Government: BIA’s consideration was proper and any such errors were harmless because outcome would be the same | Held: No reversible error; even if some evidence was considered, there was no realistic possibility the result would differ |
| Whether the IJ/BIA erred in rejecting the affidavit and bag‑and‑baggage letter and in weighing due diligence | Nivelo Cardenas: unsworn affidavit and bag‑and‑baggage letter show he gave correct address and checked mail diligently | Government: affidavit was unsworn; bag‑and‑baggage letter lacks date/creator and does not show he timely corrected the record | Held: IJ permissibly discounted unsworn affidavit; bag‑and‑baggage evidence insufficient; BIA permissibly considered due diligence and credibility; no relief warranted |
Key Cases Cited
- Niz‑Chavez v. Garland, 141 S. Ct. 1474 (2021) (single‑document requirement for NTA under §1229(a))
- Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021) (applied single‑document rule to in absentia context)
- Spagnol‑Bastos v. Garland, 19 F.4th 802 (5th Cir. 2021) (alien forfeits notice when failing to provide a viable mailing address)
- Gudiel‑Villatoro v. Garland, 40 F.4th 247 (5th Cir. 2022) (failure to provide any address bars reopening under §1229a(b)(5)(B))
- Platero‑Rosales v. Garland, 55 F.4th 974 (5th Cir. 2022) (reaffirmed forfeiture rule; concurrence distinguishing Rodriguez)
- Mauricio‑Benitez v. Sessions, 908 F.3d 144 (5th Cir. 2018) (failure to correct erroneous address forfeits right to notice)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA must contain time/place to trigger certain consequences)