Ruballos v. Sessions
682 F. App'x 59
| 2d Cir. | 2017Background
- Marco Ruballos, a native of El Salvador, was subject to an in absentia removal order after a hearing notice was mailed to an address he provided in 1996 and he did not appear at a 1998 hearing.
- Ruballos moved to rescind the in absentia order, arguing he did not receive the hearing notice.
- The Immigration Judge (IJ) denied the motion, relying solely on Ruballos’s alleged lack of diligence in seeking to redress the situation.
- The Board of Immigration Appeals (BIA) affirmed, finding (1) the IJ’s diligence-based ruling valid and (2) that Ruballos had constructive notice because the notice was mailed to the last address he provided.
- Ruballos petitioned the Second Circuit for review of the BIA decision; the Court reviewed the IJ’s decision as supplemented by the BIA and applied the abuse of discretion standard for motions to rescind in absentia orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ properly evaluated rebuttal of the receipt presumption for notice mailed by regular mail | Ruballos: IJ failed to consider the full set of Matter of M‑R‑A factors and relied only on diligence | Government: Denial appropriate because Ruballos was not diligent and thus did not rebut the presumption of receipt | Court: IJ abused discretion — must consider all relevant Matter of M‑R‑A factors, not only diligence |
| Whether Ruballos had constructive notice of the hearing based on mailing to the 1996 address | Ruballos: He was not informed of change-of-address requirements or consequences and thus cannot be charged with constructive notice | Government: Mailing to last provided address supports constructive notice | Held: BIA abused discretion — constructive notice requires prior notice of change-of-address duties and consequences, which is absent here |
| Whether the IJ could rely on Iavorksi precedent to deny rescission as untimely | Ruballos: Iavorksi (equitable tolling) is inapposite; rescission motions based on nonreceipt have no time limit | Government: IJ applied relevant diligence principles | Held: Iavorksi misapplied — rescission motion here not time‑barred; diligence is relevant but only one of many factors |
| Whether the Court should consider Ruballos’s argument about TPS and class membership in American Baptist Churches | Ruballos: Removal was improper while he was a TPS registrant and class member | Government: Issue not raised before BIA | Held: Court declines to consider claim as unexhausted (judicially imposed exhaustion required) |
Key Cases Cited
- Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) (standard for reviewing IJ decision as supplemented by BIA)
- Alrefae v. Chertoff, 471 F.3d 353 (2d Cir. 2006) (abuse of discretion standard for motions to reopen)
- Maghradze v. Gonzales, 462 F.3d 150 (2d Cir. 2006) (constructive receipt where respondent was notified of change-of-address duties)
- Iavorksi v. INS, 232 F.3d 124 (2d Cir. 2000) (equitable tolling principles for motions to reopen based on ineffective assistance of counsel)
- Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104 (2d Cir. 2007) (judicially imposed issue exhaustion is mandatory)
- American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (class action referenced regarding TPS-related relief)