40 F.4th 1312
11th Cir.2022Background
- In Oct. 2003 Samuel Dacostagomez (then 17) was issued a Notice to Appear (NTA) without a specific date/time and removed from the border to the U.S.; family later moved to Georgia and did not update the immigration court.
- The Phoenix court set an initial hearing for Nov. 2004, later granted a venue/transfer motion and the Atlanta court sent paragraph (2) notices to the last-known Rock Springs address; those notices were returned undelivered.
- Dacostagomez did not attend the rescheduled Feb. 2005 hearing and an immigration judge entered an in absentia removal order under 8 U.S.C. § 1229a(b)(5)(A).
- He remained in the U.S., and in July 2019 moved to reopen based on Pereira/Niz‑Chavez defects in the original NTA (paragraph (1) notice missing time/date), seeking to rescind the in absentia order.
- The IJ and Board denied the motion (citing Matter of Pena‑Mejia), reasoning that a subsequent valid paragraph (2) notice of the hearing can sustain an in absentia order; Dacostagomez petitioned for review.
- The Eleventh Circuit considered whether a defect in an earlier paragraph (1) notice suffices to reopen an in absentia removal when the missed hearing was the subject of paragraph (2) notice, and whether procedural venue change violated due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "notice in accordance with paragraph (1) or (2)" requires valid notice under both paragraphs to reopen an in absentia order | A defective paragraph (1) NTA (no date/time) means no valid notice; any defect in the proceeding's notices allows reopening | "Or" is disjunctive; only the notice required for the specific missed hearing (paragraph (1) for initial hearing or paragraph (2) for changes) must have been provided | "Or" is disjunctive; reopening requires showing one did not receive the notice required for the particular hearing missed (affirmed) |
| Whether the government provided required notice for the Feb. 2005 hearing | The initial NTA defect (paragraph (1)) renders all subsequent in absentia orders invalid | The relevant notices for the missed (rescheduled) hearing were paragraph (2) notices to last-known address; because Dacostagomez moved and failed to update his address, paragraph (2) obligations were satisfied (no written notice required) | The court held paragraph (2) governs the missed hearing; because he failed to update his address, the government satisfied paragraph (2) and reopening was not warranted |
| Whether changing venue on a third party's motion (the aunt's) violated due process | Venue changed on aunt's motion, not his; that procedural irregularity denied due process | Procedural irregularity alone does not violate due process absent prejudice; the government mailed notice to last-known address, reasonably calculated to notify him | No due process violation: mailing to last-known address was reasonably calculated to give notice; procedural irregularity insufficient without prejudice |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA missing date/time may be insufficient notice)
- Niz‑Chavez v. Garland, 141 S. Ct. 1474 (2021) (clarified written‑notice requirements for NTAs)
- Li v. U.S. Att’y Gen., 488 F.3d 1371 (11th Cir. 2007) (standard of review: abuse of discretion for motions to reopen; legal questions reviewed de novo)
- Thamotar v. U.S. Att’y Gen., 1 F.4th 958 (11th Cir. 2021) (review limited to Board’s reasoning when BIA issues decision without adopting IJ’s reasoning)
- Dominguez v. U.S. Att’y Gen., 284 F.3d 1258 (11th Cir. 2002) (due‑process notice standard: notice reasonably calculated to inform)
- ACLU of Fla., Inc. v. Miami‑Dade Cnty. Sch. Bd., 557 F.3d 1177 (11th Cir. 2009) (agency procedural irregularity alone does not establish constitutional violation)
- United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010) (procedural error requires prejudice to be a due process violation)
- Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014) (court may deem arguments abandoned when unsupported)
- Singh v. Garland, 24 F.4th 1315 (9th Cir. 2022) (contrary Ninth Circuit view interpreting paragraph (1)/(2) notice; Eleventh Circuit expressly disagreed)