Robinson Diaz v. Loretta E. Lynch
824 F.3d 758
| 8th Cir. | 2016Background
- Diaz, a Salvadoran national who entered the U.S. unlawfully, received by regular mail a Notice to Appear in 2011 that omitted the hearing date/time; one week later the immigration court mailed a Notice of Hearing with the date/time to the same address.
- Diaz failed to appear at the hearing and an IJ entered an in absentia removal order under 8 U.S.C. § 1229a(b)(5)(A).
- Two years later DHS apprehended Diaz; he moved to reopen the in absentia order claiming he never received the Notice of Hearing and alternatively sought to reopen to apply for asylum.
- The IJ denied both motions; the BIA affirmed. Diaz petitioned for review in the Eighth Circuit.
- The central factual disputes: whether Diaz actually received the Notice of Hearing (regular mail) and whether his untimely asylum-based motion to reopen was based on changed country conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Diaz rebutted presumption of delivery for Notice of Hearing sent by regular mail | Diaz: swore he never received the Notice of Hearing | Gov: regular mail is presumed delivered; Diaz admitted receiving earlier Notice to Appear at same address and did not act to redress for two years | Court: Diaz’s affidavit insufficient to overcome presumption; affirmed denial to reopen in absentia order |
| Whether IJ abused discretion in denying motion to reopen in absentia order | Diaz: denial violates due process because he lacked notice of hearing | Gov: statutory presumption of delivery and factors support conclusion he received notice | Court: No abuse of discretion; BIA’s reasoning rational and supported by record |
| Whether motion to reopen to apply for asylum was timely or based on changed country conditions | Diaz: recently learned of violent conditions in El Salvador and step‑father’s murder (no date provided) | Gov: motion filed two years after removal and Diaz did not show evidence that changed conditions arose after 2011 | Court: Motion untimely and Diaz failed to show changed conditions not available at time of hearing; denial affirmed |
| Whether BIA abused discretion or committed legal error in applying standards for reopening | Diaz: BIA failed to give proper weight to affidavit and claimed country changes | Gov: BIA applied Matter of M‑R‑A‑ and Ghounem factors and statutory standards | Court: No abuse of discretion; BIA applied correct standards and explained decision |
Key Cases Cited
- Alemu v. Mukasey, 509 F.3d 907 (8th Cir.) (standard for abuse of discretion review of motions to reopen)
- Vue v. Gonzales, 496 F.3d 858 (8th Cir.) (de novo review of legal questions)
- Haider v. Gonzales, 438 F.3d 902 (8th Cir.) (service by mail satisfies due process when proof of attempted delivery exists)
- Ghounem v. Ashcroft, 378 F.3d 740 (8th Cir.) (presumption of delivery for regular mail and factors to rebut it)
- Zheng v. Mukasey, 523 F.3d 893 (8th Cir.) (requirements for changed country conditions to excuse untimely motion to reopen)