Norma Fuentes-Pena v. William Barr, U. S. A
917 F.3d 827
| 5th Cir. | 2019Background
- Fuentes-Pena, a Salvadoran national, was served an NTA and released; she provided a Duncanville, TX address and was instructed to use EOIR-33 to report address changes to the immigration court and ICE.
- Months later she moved to Massachusetts and notified only ICE of the new address before ICE filed the NTA with the immigration court.
- The immigration court mailed hearing notice and later the in-absentia removal order to the Duncanville address; Fuentes-Pena did not appear and was ordered removed in absentia.
- Fuentes-Pena moved to reopen, arguing her notice obligation was satisfied by notifying ICE and that exceptional circumstances excused her absence; the IJ and BIA denied relief, finding notice sufficient at the address of record and no exceptional circumstances.
- The Fifth Circuit reviewed the BIA’s denial for abuse of discretion and examined whether notifying ICE (rather than the court) satisfied 8 U.S.C. § 1229(a)(1)(F) given DHS’s post‑reorganization responsibilities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fuentes-Pena satisfied the statutory duty to provide a change of address by notifying ICE before the NTA was filed | Notifying ICE of the new Massachusetts address fulfilled her obligation to "provide the Attorney General" with a written record of the change | The statute requires the alien to provide the address to the Attorney General (i.e., immigration authorities generally) and she still had to inform the immigration court | Held for Fuentes-Pena: because ICE now performs former INS functions and filed the NTA, notifying ICE before filing satisfied §1229(a)(1)(F) and excuses her absence |
| Whether the BIA abused its discretion by refusing to reopen the in-absentia removal order | Reopening required because she did not receive required written notice in accordance with the statute | BIA: notice was properly mailed to address of record and NTA warned of duty to update address; no exceptional circumstances shown | Held for Fuentes-Pena: BIA abused its discretion by denying reopening because statutory notice requirement was not met when ICE had her new address prior to filing |
Key Cases Cited
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (failure to notify court of address change may still constitute receipt of statutorily sufficient notice in some circumstances)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (motions to reopen reviewed for abuse of discretion)
- INS v. Doherty, 502 U.S. 314 (1992) (motions to reopen are disfavored)
- Lopez-Gomez v. Ashcroft, 263 F.3d 442 (5th Cir. 2001) (factual findings on motions to reopen reviewed under substantial-evidence standard)