Roberto Mauricio-Benitez v. Jefferson Sessions, II
908 F.3d 144
| 5th Cir. | 2018Background
- Mauricio-Benitez, a Salvadoran national, was personally served with a Notice to Appear (NTA) on June 13, 2004; the NTA warned he must provide and keep current a mailing address and that failure to appear could result in in absentia removal.
- The NTA listed his address with a typographical error: "West Belfor d Apt. 705" (petitioner alleges his correct address was "West Belfor t Apt. 705"); he did not correct the NTA or otherwise update the court.
- The DHS mailed a Notice of Hearing (NOH) by regular mail on July 21, 2004 to the misspelled address; Mauricio-Benitez did not appear at the September 21, 2004 hearing and an in absentia removal order was entered.
- Thirteen years later (June 2017) he moved to reopen, asserting he never received the NOH and that the FOIA response revealed the address misspelling; he sought rescission of the in absentia order.
- The IJ denied reopening because he failed to correct the address/change of address; the BIA affirmed, holding (1) he was not entitled to actual notice because he failed to correct the NTA address, and (2) he failed to rebut the presumption of delivery for regularly mailed NOH.
- The Fifth Circuit applied deferential review and denied the petition for review, upholding both alternative grounds relied on by the BIA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner was entitled to actual notice despite the misspelled address on the NTA | Mauricio-Benitez: NTA/regulations required only notice of change of address, not correction; he had no reason to know the NTA was misspelled until FOIA | Government: Petitioner was personally served with the NTA that showed the error and warned to keep address current; he had a duty to correct the NTA | Held: Not entitled to actual notice; failure to correct an error in the NTA/address defeats claim of lack of notice (Gomez-Palacios line) |
| Whether petitioner rebutted the presumption that a regularly mailed NOH was delivered | Mauricio-Benitez: Submitted affidavit asserting nonreceipt; argued affidavit without evidentiary flaw suffices to rebut presumption | Government: Regular mail carries a rebuttable presumption of delivery; affidavit alone insufficient without corroboration or other supporting factors; NOH was not returned undelivered | Held: Presumption of delivery not rebutted; BIA permissibly relied on factors (no return, lack of corroboration, credibility/diligence concerns) |
Key Cases Cited
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (an alien's failure to keep court apprised of current mailing address can defeat claim of lack of notice)
- Maknojiya v. Gonzales, 432 F.3d 588 (5th Cir. 2005) (an affidavit of nonreceipt may rebut delivery presumption when credible and unflawed)
- Hernandez v. Lynch, 825 F.3d 266 (5th Cir. 2016) (distinguishes certified-mail and regular-mail presumptions and considers affidavit, diligence, and credibility)
- Hernandez-Castillo v. Sessions, 875 F.3d 199 (5th Cir. 2017) (standard of review for BIA denials of motions to reopen)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (clarifies NTA content issue for stop-time rule; noted as not controlling here because this case concerns reopening)