Odilia Velasquez-Escovar v. Eric Holder, Jr.
2014 U.S. App. LEXIS 18652
9th Cir.2014Background
- Velasquez-Escovar is Guatemalan and entered the U.S. unlawfully circa 1990, living in Los Angeles with four children (two U.S. citizens).
- In Texas, after a 2007 stop, she was processed by DHS at a Corpus Christi station and provided an address she claims was current at Vanowen Street, Van Nuys; she also asserts Valerio Street was a past address.
- The NTA allegedly listed Valerio Street as Velasquez’s current address and required notice to be provided, but Velasquez never alerted the government of an address change.
- NTA-based notices later mailed to Velasquez’s Valerio Street address were not received by Velasquez, who had continued to reside at Vanowen Street.
- Fifteen months after last consulting with an attorney, the court mailed a hearing notice to the Valerio address; Velasquez again did not receive it and was ordered removed in absentia.
- Detained by ICE roughly six months later, Velasquez moved to reopen, arguing lack of proper notice due to misrecorded addresses; IJ denied, BIA affirmed; the petition for review is granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Velasquez entitled to notice of hearing? | Velasquez provided a current Vanowen address; notice to Valerio address violated notice rights. | Alien had duty to provide address and update it; misrecorded address does not relieve that obligation. | Yes; Velasquez was entitled to notice. |
| Did the BIA abuse its discretion in denying the motion to reopen for lack of notice? | BIA failed to credibly discount her address claim and relied on unsupported assumptions. | BIA substantially complied with governing notice obligations and found lack of current address. | Yes; BIA abused discretion in discounting her address claim and in finding no notice. |
| Can regulation 8 C.F.R. § 1003.15(d)(1) validate the government’s reliance on an incorrect NTA address? | Regulation fits the situation and places burden on government/alien to correct address; BIA did not rely on it, so decision cannot be saved. | Regulation applies and supports alien duty to correct incorrect address; BIA should have or later relied on it. | Regulation supports Velasquez’s position, and BIA’s failure to invoke it does not validate the decision. |
| Is the government’s reliance on Hamazaspyan or other analogies appropriate here? | Analogies are inapt; Velasquez provided a current address and the NTA did not accurately reflect it. | Dissent cites Hamazaspyan and other dicta as supportive analogies for the outcome. | No; analogies do not control the outcome; Velasquez was entitled to notice. |
Key Cases Cited
- Hamazaspyan v. Holder, 590 F.3d 744 (9th Cir. 2009) (notice on alien but not counsel insufficient; motion to reopen discussed)
- Navas v. I.N.S., 217 F.3d 646 (9th Cir. 2000) (affirms reliance on statutory notice framework; disclaimer on relying on grounds not invoked)
- In re G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001) (en banc; defective notice vs. no notice distinction discussed)
- Movsisian v. Ashcroft, 395 F.3d 1095 (9th Cir. 2005) (abuse of discretion standard and need for reasoned explanation)
- Samayoa-Martinez v. Holder, 558 F.3d 897 (9th Cir. 2009) (relevance to notice and address obligations in removal proceedings)