CELIA DIAZ MARTINEZ, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
No. 17-72186
No. 18-72034
United States Court of Appeals, Ninth Circuit
Filed October 30, 2019
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CELIA DIAZ MARTINEZ,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 17-72186
Agency No.
A073-948-023
CELIA
Diaz, AKA Celia Diaz Martinez,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 18-72034
Agency No.
A073-948-023
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 10, 2019
Pasadena, California
Filed October 30, 2019
Before:
Judges, and Gary S. Katzmann,* Judge.
Opinion by Judge Katzmann;
Dissent by Judge Clifton
SUMMARY**
Immigration
Granting Celia Diaz Martinez’s petition for review of an
order of the Board of Immigration Appeals and remanding,
the panel held that: 1) absent any prejudice to the
Government, a premature petition for review of an
immigration order may ripen upon final disposition of the
case by the BIA; and 2) the BIA abused its discretion in
denying Diaz Martinez’s appeal of an immigration judge’s
denial of her motion to reopen, where the IJ in the underlying
removal proceeding ordered Diaz Martinez removed in
absentia on the basis of an amended notice to appear of
which she did not receive proper notice.
In 2007 Diaz Martinez was served with a notice to appear
(“NTA”) charging her as an alien present in the United States
who had not been admitted or paroled and alleging that she
arrived in the United States at or near San Ysidro, California,
on or about August 25, 1989.
In June of 2010, Diaz Martinez’s counsel was personally
served a notice of her next hearing, and Diaz Martinez
submitted a change of address to the immigration court and
the Government. That same day, the Government issued an
amended NTA, in which it amended its factual allegations to
charge that she entered the United States at or near an
unknown place on or about an unknown date. A box was
checked indicating that the amended allegations were “in
lieu of” the allegations in the 2007 NTA. The certificate of
service section listed Diaz Martinez’s old address, not the
new address she provided, and the boxes for means of
service were all left blank. When Diaz Martinez did not
appear at her next hearing, the IJ ordered her removed in
absentia.
In 2017, Diaz Martinez filed a motion to reopen, which
the IJ denied, and Diaz Martinez appealed to the BIA. While
her appeal was pending with the BIA, she filed a petition for
review with this court on August 22, 2017, and the BIA later
dismissed her appeal on October 25, 2017.
Diaz Martinez also filed a second motion to reopen, this
time with the BIA, which denied the motion, and Diaz
Martinez sought review of that order in this court.
The panel held that it had jurisdiction over Diaz
Martinez’s first petition for review, concluding that, absent
any prejudice to the Government, a petition for review of an
IJ’s order of removal, prematurely filed with this court prior
to a final order from the BIA, may ripen upon final
disposition of the case by the BIA. The panel explained that
this court has allowed for premature appeals to ripen in civil
cases and emphasized the importance of lenity when
addressing premature appeals by pro se litigants, as Diaz
Martinez was when she prematurely filed her petition for
review. The panel also noted the persuasive reasoning of the
Second, Third, and Eleventh Circuits, which have held that
a premature petition for review can ripen, and declined to
follow the contrary approach of the Fifth and Sixth Circuits.
As a threshold matter, the panel concluded that Diaz
Martinez had sufficiently exhausted the argument that she
lacked notice of the charges in the amended NTA.
Next, the panel held that the BIA abused its discretion in
denying the appeal of the IJ’s denial of her motion to reopen,
explaining that her removal order relied on Diaz Martinez’s
admissions to the amended NTA, despite the fact that there
was no evidence in the record that she received the required
notice of the amended NTA. The panel also concluded that
this due process violation prejudiced Diaz Martinez, noting
that: 1) she had plausible grounds for discretionary relief;
2) the failure to serve her deprived her of the opportunity to
seek a continuance in light of the amended factual
allegations; 3) she lacked notice of facts she would need to
prove to qualify for relief; and 4) the order was not supported
by substantial evidence, as it was based on an ineffective
NTA. The panel thus remanded to the BIA with instructions
to reopen the removal proceedings.
Because the panel determined that the removal order was
defective, the panel stated it would not reach Diaz
Martinez’s petition for review of her second motion to
reopen.
Dissenting, Judge Clifton agreed with the majority that
this court has subject matter jurisdiction over Diaz
Martinez’s first motion to reopen. However, Judge Clifton
dissented because: 1) Diaz Martinez failed to exhaust before
the BIA the argument that the majority relies upon; and 2) to
obtain relief based on a purported due process violation, a
petitioner must demonstrate prejudice, and Diaz Martinez
did not.
COUNSEL
Kathryn Marie Davis (argued), Supervising Attorney;
Marcel Budiono (argued) and Octavio Velarde (argued),
Certified Law Students; U.C. Irvine School of Law,
Pasadena, California; Peter R. Afrasiabi, One LLP, Newport
Beach, California; for Petitioner.
Sherease Rosalyn Pratt (argued), Senior Litigation Counsel;
Anthony P. Nicastro, Assistant Director; Joseph H. Hunt,
Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
KATZMANN, Judge:
Petitioner Celia Diaz Martinez (“Diaz Martinez”)
challenges the denials, by an immigration judge (“IJ”) and
Board of Immigration Appeals (“BIA”), of two motions to
reopen her removal proceedings. Diaz Martinez sought to
reopen her removal proceedings after an IJ issued an in
absentia removal order when she failed to appear at an
immigration hearing. She filed the first motion to reopen
(“first MTR”) with an IJ, who denied the motion shortly after
suggesting that Diaz Martinez would have time to review the
record and amend the motion. Diaz Martinez then appealed
to the BIA for review of the denial and, before the BIA
denied that appeal, Diaz Martinez pro se petitioned for
review of the IJ’s denial of her first MTR to this court. The
BIA subsequently denied her appeal. With new counsel,
Diaz Martinez filed a second motion to reopen (“second
MTR”) with the BIA, which the BIA also denied and Diaz
Martinez petitioned for review.
Whether we have jurisdiction to review the denial of the
first MTR, where Diaz Martinez filed her petition before the
BIA issued a final decision, is an issue of first impression for
our court. Diaz Martinez argues that we have subject matter
jurisdiction over her pro se petition because the BIA issued
a decision before this court considered the merits of her case,
thus curing any defect in her premature filing in this court.
Assuming jurisdiction, Diaz Martinez asks us to void the IJ’s
in absentia removal order and remand this case to the BIA to
reopen because (1) she lacked notice of the amended charges
against her; (2) she lacked notice of the time of her final
removal hearing; (3) the IJ and BIA wrongly ignored the
statements of Diaz Martinez’s counsel; (4) the IJ should have
waited to rule on Diaz Martinez’s MTR because of her
history of diligence; and (5) the BIA abused its discretion by
not reopening the case sua sponte. Diaz Martinez further
argues that the BIA should have granted Diaz Martinez’s
second MTR.
We determine that we have jurisdiction over the petition
for review of the first MTR, as the petition ripened prior to
consideration on the merits here. Pursuant to
notice of the amended charges, and therefore the removal
order was unsupported by substantial evidence and the BIA
abused its discretion in failing to reopen her proceedings.
Accordingly, we grant the petition for review. We do not
reach Diaz Martinez’s alternative arguments.
I. Factual and Procedural Background
Diaz Martinez is a 47-year-old citizen of El Salvador
without legal status in the United States. Diaz Martinez has
five U.S. citizen children, two of whom have medical issues.
On February 9, 2007, Diaz Martinez was served in
person with a notice to appear (“2007 NTA”) and taken into
immigration custody. She was charged with violating
section 212(a)(6)(A)(i) of the Immigration and Nationality
Act (“INA”) as “an alien present in the United States who
has not
The 2007 NTA alleged the following facts:
1) You are not a citizen or national of the
United States;
2) You are a native of El Salvador and a
citizen of El Salvador;
3) You arrived in the United States at or near
San Ysidro, California, on or about August
25, 1989;
4) You were not then admitted or paroled
after inspection by an Immigration Officer.
The 2007 NTA was stamped as received by the Department
of Justice on February 15, 2007 and stamped as an exhibit
by the IJ on March 5, 2007. On March 7, 2007, Diaz
Martinez was released on bond from immigration custody in
Florence, Arizona.
Over the course of three years, Diaz Martinez diligently
attended numerous hearings in immigration court and
communicated her address changes to the Government (i.e.,
the Department of Homeland Security). Diaz Martinez’s
first master calendar hearing was scheduled for May 1, 2007
at 8:30 a.m. On May 1, the IJ granted her pro se motion for
a change of venue to the immigration court in Los Angeles,
California. On May 17, 2007, the Los Angeles immigration
court served Diaz Martinez by mail with a notice of hearing,
scheduling a master calendar hearing at the Los Angeles
immigration court for June 13, 2007 at 9:00 a.m. On June
13, 2007, the immigration court served her in person with a
new notice of hearing, scheduling a master calendar hearing
for February 25, 2008 at 9:30 a.m. On February 12, 2008,
the immigration court issued another new notice of hearing,
scheduling an individual hearing for June 2, 2008 at
9:30 a.m. The certificate of service box indicates that the
new notice was served by mail to both Diaz Martinez and
her then-counsel. On February 25, 2008, Diaz Martinez was
served in person1 with another notice of hearing, again
scheduling an individual hearing for June 2, 2008 at
9:30 a.m. On June 2, 2008, the immigration court served
Diaz Martinez and her attorney in person with a new notice
of hearing, reassigning Diaz Martinez’s case to a new IJ and
scheduling a master calendar hearing for November 25, 2008
at 9:30 a.m. That same day, Diaz Martinez filed a change of
address form with the immigration court. On December 3,
2009, the immigration court issued a new notice of hearing,
scheduling a master calendar hearing for June 23, 2010 at
8:30 a.m. The notice indicated that it was served by mail on
Diaz Martinez’s counsel at the time.
On June 23, 2010, Diaz Martinez and her then-counsel
appeared before the immigration court, and the court issued
a notice of hearing for another master calendar hearing. The
notice was served on Diaz Martinez’s counsel in person and
indicated that a master calendar hearing would be held on
October 27, 2010 at 8:00 a.m., with the “8” partly obscured
by a pen marking. The notice also indicated that the next
hearing would be a removal hearing and failure to appear
would, absent exceptional circumstances, result in
ineligibility for certain forms of relief under the INA.
That same day, June 23, 2010, two other critical events
occurred. First, Diaz Martinez submitted a change of
address form, providing a new address.2 The IJ stamped
form as received on June 23, 2010, and Diaz Martinez signed
the form, certifying that she had mailed a copy of it to the
Government. Second, the Government issued an
“Additional Charges of Inadmissibility/Deportability” form
(“amended NTA”), which amended the 2007 NTA. The
Government lodged no additional charges against Diaz
Martinez, but it amended the factual allegations against her.
The Government alleged, “You entered the United States at
or near an unknown place on or about an unknown date,”
removing the references to El Salvador and the 1989 entry.
A box was checked indicating that the amended factual
allegations were “in lieu of,” rather than “in addition to,” the
facts alleged in the 2007 NTA. Thus, the amended NTA no
longer included her approximate date or place of entry into
the United States. The IJ also stamped the amended NTA as
received on June 23, 2010. The certificate of service section
of the form listed Diaz Martinez’s old address, not the new
.address provided on June 23, 2010, and the boxes for means
of service (in person, certified mail, regular mail, and oral
notice) were all left blank. Neither the Government nor Diaz
Martinez signed the certificate of service box. The record
does not provide any other evidence that Diaz Martinez or
her counsel were served by mail or in person with the
amended NTA.
On October 27, 2010, Diaz Martinez was not present at
the hearing, and the IJ ordered her removed in absentia. The
IJ marked the following as her finding: “At a prior hearing
the respondent admitted the factual allegations in the Notice
to Appear and conceded removability. I find removability
established as charged.” The IJ’s final order concluded that
“[t]he respondent shall be removed to EL SALVADOR on
the charge(s) contained in the Notice to Appear.”
Diaz Martinez claims that in October 2010, she went to
the Los Angeles immigration court for her hearing, but the
courtroom was locked, and court staff told her that the IJ was
not present. According to Diaz Martinez, court staff told her
that she would receive notice of a new hearing date and time
in the mail. Diaz Martinez did not receive a new notice of
hearing. Diaz Martinez then made payments to a notario
who had previously helped her so that he would reopen her
case. She later learned that he never did so, and she instead
had been ordered removed. In 2014, she hired new counsel
to reopen her case, but he died in a car accident, and no
motion to reopen was filed.
In 2017, Diaz Martinez retained new counsel. On June
1, 2017, counsel filed a motion to reopen removal
proceedings (the “first MTR”) and a motion to stay removal
in the immigration court. The first MTR challenged Diaz
Martinez’s order of removal on due process grounds,
arguing that “[d]ue process requires that the alien be
provided with notice of proceedings and an opportunity to
be heard. Notice must be reasonably calculated to apprise
the alien of his or his scheduled hearing and the immigration
charges against him.” The first MTR further stated that
“[t]his motion will be supplemented after counsel has had
the opportunity to review the Court’s Record of
Proceedings.” That same day, then-counsel for Diaz
Martinez sent a request to the Executive Office for
Immigration Review (“EOIR”) for audio of “Respondent’s
hearings, including her removal hearing on October 27,
2010.”
A little over a week later, on June 9, 2010, the IJ denied
the first MTR because the motion was not supported by
documentary evidence. In a separate order issued that same
day, the IJ granted the motion for a stay of removal to enable
counsel to review the record and resubmit the MTR.
decision was served on Diaz Martinez’s counsel by mail,
under a cover letter dated June 12, 2017.
Diaz Martinez appealed the denial of the first MTR to
the BIA. The Government then filed a motion to vacate or
terminate the stay of removal, and the IJ granted the motion
on July 12, 2017, finding that Diaz Martinez had failed to
timely resubmit her motion with supporting documentation.3
The order terminating the stay of removal was served by
mail on Diaz Martinez’s counsel on July 13, 2017.
On August 3, 2017, Diaz Martinez pro se filed a petition
for review of the IJ’s decision in the Ninth Circuit. On
August 22, 2017, her counsel filed with the BIA a brief in
support of Diaz Martinez’s appeal of the IJ’s denial of the
first MTR. On October 25, 2017, the BIA dismissed the
appeal of the IJ’s June 9, 2017 order denying the first MTR.
The following day, the Government filed a motion to dismiss
Diaz Martinez’s federal petition for lack of subject matter
jurisdiction. We denied the motion to dismiss without
prejudice and ordered further briefing from both parties as to
“whether the BIA’s October 25, 2017 order cures any
prematurity in the filing of this petition.” We also granted a
motion to stay removal pending the outcome of these
proceedings.
On February 1, 2018, through new counsel, Diaz
Martinez filed a second MTR, this time directly with the
BIA. The second MTR included a declaration in which Diaz
Martinez explained the circumstances around her absence
from the October 27, 2010 immigration court hearing,
among other things. The BIA denied the MTR on June 20,
2018, finding that it was filed untimely, was number-barred,
and included an incomplete declaration. The BIA further
concluded that “[w]e also do not find that the respondent’s
due process rights were violated based on a lack of notice.”
Diaz Martinez then sought review of the BIA’s denial of the
second MTR with this court.
We review the consolidated petitions for review of Diaz
Martinez’s first and second MTRs.
II. Jurisdiction
“[W]e retain jurisdiction to determine our own
jurisdiction.” Ramirez v. Lynch, 810 F.3d 1127, 1130 (9th
Cir. 2016). Diaz Martinez and the Government dispute
whether we have jurisdiction over her petition for review of
the first MTR, docketed at 17-72186. There is no dispute,
however, as to our jurisdiction over her petition for review
of the second MTR, docketed at 18-72034. Because the
second MTR poses potential procedural obstacles to
reaching consideration on the merits that the first MTR does
not, we begin with the issue of jurisdiction over the first
order, which we have jurisdiction to review pursuant to
To determine our jurisdiction we resolve the following
issue: can a petition for review of an IJ’s final order of
removal, prematurely filed with our court prior to a final
order from the BIA, ripen into an effective appeal pursuant
to Federal Rule of Appellate Procedure 4(a)(2) upon
. Because we have jurisdiction over the first MTR and determineissuance of a final ruling from the BIA? We previously left
that question open, “tak[ing] no position on the current
circuit split regarding treatment of premature petitions
generally.” Abdisalan v. Holder, 774 F.3d 517, 527 (9th Cir.
2014) (en banc). We have made clear that, pursuant to
statutory requirements, our court’s jurisdiction to review
immigration court decisions is limited to final orders of
removal from the BIA. See Alcala v. Holder, 563 F.3d 1009,
1013 (9th Cir. 2009) (citing
Shaboyan v. Holder, 652 F.3d 988, 989–90 (9th Cir. 2011)
(finding that an interim order from the BIA denying a stay
of removal did not qualify as a reviewable final order of
removal but leaving open the possibility that the order could
be reviewed as part of the review of a final order of removal).
In Abdisalan, we explained that “when the BIA remands to
the IJ for any reason, no final order of removal exists until
all administrative proceedings have concluded . . . [W]hen
the BIA issues a mixed decision, no aspect of the BIA’s
decision is ‘final’ for the purpose of judicial review.”
774 F.3d at 526. Thus, while pending administrative
proceedings on remand may preclude the ripening of a
premature petition to the court, we have not decided whether
a premature petition may ripen upon final disposition of all
issues by the BIA. Upon review of both our civil case law
and persuasive authority from our sister courts in the Second,
Third, and Eleventh Circuits, we now hold that such a
petition may ripen, providing us jurisdiction over Diaz
Martinez’s prematurely filed pro se petition for review.
1. Ripening of Premature Appeals in Civil Cases
It is undisputed that Diaz Martinez’s petition for review
of the first MTR was premature when it was filed with this
court, as there was no final order. The issue is instead
whether her premature pro se petition may ripen upon the
issuance of a final order. Our civil case law allows for
premature appeals to ripen and suggests lenity in treatment
of pleadings by pro se parties.
We have allowed for premature appeals to ripen in civil
cases. Absent special circumstances, a litigant may only
appeal from a final judgment. See Marshall v. Sawyer,
301 F.2d 639, 643 (9th Cir. 1962) (noting that orders
dismissing complaints without dismissing the entire action
are not appealable unless it is clear that no amendment to the
complaint could possibly save the action); see also Serine v.
Peterson, 989 F.2d 371, 372 (9th Cir. 1993) (holding that the
findings and recommendation of a magistrate judge are not
appealable until adopted by the district court). However, a
notice of appeal directed at a non-appealable order can serve
as
appealable final decision. We prioritize substantive rights of
parties over procedural defects in appeals, allowing
premature appeals to ripen absent any prejudice to the
appellee. In Firchau v. Diamond Nat’l Corp., 345 F.2d 269,
271 (9th Cir. 1965), we interpreted a plaintiff’s premature
appeal of a non-final order dismissing only a single claim as
directed at the ensuing final judgment rather than the
dismissal of the claim, thus treating the appeal as valid.
Similarly, in Eason v. Dickson, 390 F.2d 585 (9th Cir. 1968),
we found that the plaintiff’s premature notice of appeal
became an effective notice of appeal when the district court
issued a final decision and “the premature notice did not
adversely ‘affect substantial rights’ of the prevailing
adversary.” Id. at 588 (quoting Firchau, 345 F.2d at 271).
Premature appeals, moreover, do not divest the lower court
of its jurisdiction to issue a subsequent final and appealable
judgment. See Ruby v. Secretary of United States Navy,
365 F.2d 385, 389 (9th Cir. 1966); Resnik v. La Paz Guest
Ranch, 289 F.2d 814, 818 (9th Cir. 1961).
In allowing premature appeals to ripen, we use “a
pragmatic approach to finality in situations where events
subsequent to a nonfinal order fulfill the purposes of the final
judgment rule.” Cato v. Fresno City, 220 F.3d 1073, 1074–
75 (9th Cir. 2000) (quoting Dannenberg v. Software
Toolworks, Inc., 16 F.3d 1073, 1075 (9th Cir. 1994)). We
can assume jurisdiction based on a prematurely filed notice
of appeal when “subsequent events can validate [the]
prematurely filed appeal.” Anderson v. Allstate Ins. Co.,
630 F. 2d 677, 681 (9th Cir. 1980).
We have allowed premature notices of appeal directed at
all manner of non-appealable orders to ripen into notices of
appeal of subsequent, appealable judgments. See, e.g., Cato,
220 F.3d at 1074–75 (reviewing an order sanctioning
attorneys); Eastport Assocs. v. City of L.A., 935 F.2d 1071,
1075 (9th Cir. 1991) (reviewing a decision not to abstain);
Anderson, 630 F.2d at 681 (reviewing an order dispensing of
some but not all claims). We have also reviewed amended
orders where the notice of appeal was filed after the original
order but not refiled after the amended order. See, e.g.,
Bruce v. United States, 759 F.2d 755, 757 (9th Cir. 1985).
We also emphasize the importance of lenity when
addressing premature appeals by pro se litigants, as Diaz
Martinez was when she prematurely filed a petition for
review of her first MTR with this court. “[W]e have an
obligation where the petitioner is pro se, particularly in civil
rights cases, to construe the pleadings liberally and to afford
the petitioner the benefit of any doubt.” Byrd v. Phoenix
Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018) (concerning
an inmate’s Fourth Amendment excessive force claim)
(quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.
1985) (en banc)); see also Bernhardt v. Los Angeles Cty.,
339 F.3d 920, 925 (9th Cir. 2003) (“Courts have a duty to
construe pro se pleadings liberally.”). Thus, an appellant’s
experience weighs further in favor of allowing an appeal to
ripen.
2. Circuit Split on the Ripening of Premature
Petitions for Review
Diaz Martinez cites three cases from the Second, Third,
and Eleventh Circuits to argue that “a premature petition of
review can ripen because the cases are more analogous to the
case at bar.” See Jimenez-Morales v. U.S. Atty. Gen.,
821 F.3d 1307 (11th Cir. 2016); Khan v. Attorney Gen. of
U.S., 691 F.3d 488 (3d Cir. 2012); Herrera-Molina v.
Holder, 597 F.3d 128 (2d Cir. 2010). The Government
instead contends that our court should “align itself with the
Moreira v. Mukasey, 509 F.3d 709, 713 (5th Cir. 2007);
Jaber v. Gonzales, 486 F.3d 223, 228–30 (6th Cir. 2007).
We agree with the approach of the Second, Third, and
Eleventh Circuits and exercise jurisdiction over Diaz
Martinez’s petition for review. Here, as in Herrera-Molina,
Khan, and Jimenez-Morales, the jurisdictional defect in
filing the petition was cured by a final judgment from the
BIA before this court had considered any aspect of the
petition, and the Government has shown no prejudice
resulting from the premature filing.
In Herrera-Molina, after an IJ denied Herrera-Molina
withholding of removal, Herrera-Molina filed both an appeal
with the BIA and a petition for review with the Second
Circuit. 597 F.3d at 131–32. The BIA subsequently
dismissed Herrera-Molina’s appeal. Id. The Government
argued that the Second Circuit lacked jurisdiction because
“at the time that the parties filed their briefs, Herrera-
Molina’s appeal of the IJ’s denial of withholding of removal
was still pending before the BIA” and thus “the reinstated
order of deportation was not a ‘final’ order of removal over
which [the Second Circuit] could exercise jurisdiction.” Id.
at 132 (citing Chupina v. Holder, 570 F.3d 99, 103–04 (2d
Cir. 2009)). The Second Circuit decidedly rejected the
Government’s argument that it lacked jurisdiction, holding
that “[a] premature petition for review of a not-yet-final
order of removal can become a reviewable final order upon
the adjudication of remaining applications for relief and
protection, provided that the [Government] has not shown
prejudice.” Id. (citing Lewis v. Gonzales, 481 F.3d 125,
128–29 (2d Cir. 2007); Foster v. INS, 376 F.3d 75, 77 (2d
Cir. 2004)). The Second Circuit noted that the Government
did not claim prejudice, “nor do[es the court] “even if
Herrera-Molina’s initial petition were premature, . . . the
reinstatement of his prior deportation order is now a
reviewable final order and [the court] proceed[ed] to the
merits of his arguments.” Id.
The Third Circuit in Khan followed the Second Circuit’s
approach to the ripening of a premature petition. There,
Khan overstayed his visa and sought asylum, withholding of
removal, and Convention Against Torture (“CAT”)
protection. Khan, 691 F.3d at 491. The IJ denied the
applications, and the BIA affirmed the IJ’s denial. Id.
at 491–92. Several years later, Khan filed an emergency
motion for a stay of removal and an MTR with the BIA. Id.
at 492. Khan petitioned for review of the BIA’s denial of
the motion for a stay of removal and the MTR in the Third
Circuit, before the BIA had issued a decision. Id. The BIA
then issued a final order, denying the motions. Id. The
Government “contend[ed] that the petition for review should
be dismissed because it was filed almost two weeks prior to
the BIA’s [final order], making it premature and depriving
th[e court] of jurisdiction.” Id. The Third Circuit rejected
the Government’s argument:
So long as the [Government] has not shown
that [it] will suffer prejudice resulting from
the premature filing of a petition for review,
and we have yet to
of the appeal, a premature petition for review
can ripen once the BIA issues a final order on
a motion to reopen. We see no reason to treat
premature petitions for review from final
orders of removal differently than we have
treated premature notices of appeal in other
types of cases.
Id. at 494. The Third Circuit adopted the Second Circuit’s
approach because it prioritized “practical, not technical
considerations” and found that the Government was not
prejudiced by allowing for the premature petition to ripen.
Id. at 493.
The Eleventh Circuit reached the same conclusion in
Jimenez-Morales. 821 F.3d at 1308–09. There, a prior
removal order was reinstated after Jimenez-Morales
reentered the United States. Id. at 1307–08. He then
expressed fear of returning and was placed in reasonable fear
proceedings. Id. at 1308. Before the proceedings had
concluded, he petitioned the Eleventh Circuit for review. Id.
Before oral argument, however, an asylum officer made a
negative reasonable fear finding, the immigration court
denied him relief, and the removal order became final.6
Id. (citing
560 F.3d 1281, 1284 (11th Cir. 2009)). The Eleventh Circuit
thus had to decide “whether the conclusion of the reasonable
fear proceeding made Mr. Jimenez-Morales’ premature []
petition for review ripen into one that gave [it] jurisdiction.”
Id. The Eleventh Circuit agreed with the Second and Third
Circuits, because such an approach to premature petitions “is
consistent with how [the court] ha[d] addressed premature
appeals in other contexts.” Id at 1308–09 (citing Robinson
v. Tanner, 798 F.2d 1378, 1385 (11th Cir. 1986)); see also
Robinson, 798 F.2d at 1385 (concluding that “a premature
notice of appeal is valid if it is filed from an order dismissing
a claim or party, and is followed by a subsequent final
judgment, even without a new notice of appeal being filed”).
The premature petition had ripened, and the Eleventh Circuit
had jurisdiction. Jimenez-Morales, 821 F.3d at 1309.
In so holding, the Third and Eleventh Circuits considered
and rejected the approach of the Fifth and Sixth Circuits that
the Government advances here. See id. at 1308–09
Diaz Martinez v. Barr 21
(reviewing the circuit split and “sid[ing] with the Second and Third Circuits” rather than the Fifth and Sixth Circuits); Khan, 691 F.3d at 493 (noting that “[t]here are differing views among our sister Courts of Appeals with regard to whether premature petitions for review can ripen upon a final decision by the BIA” and finding that such petitions can ripen). The Sixth Circuit found that it did not have jurisdiction over a premature petition for review of a BIA decision in Jaber, 486 F.3d at 228–30. There, the immigration court ordered Jaber removed and denied his MTR and motion for reconsideration. Id. at 227. While his appeal was pending with the BIA, Jaber also filed a habeas corpus petition in federal district court. Id. Finding that the habeas petition was a challenge to a final deportation order, the district court transferred the case to the Sixth Circuit pursuant to the
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premature petition in federal court could not be cured by a final BIA order.7 Id. at 713.
The scenarios reviewed in Herrera-Molina, Khan, and Jimenez-Morales are closely analogous to the present situation; whereas the procedural posture of the habeas petitions in Jaber and Moreira are less so.
3. Diaz Martinez’s Premature Petition for Review
As we have noted, our precedent supports the ripening of premature appeals in cases involving a variety of non-final orders. Allowing subsequent final judgments from the BIA to cure jurisdictional defects in immigration petitions for review is in keeping with our prioritization of the substantive rights of parties over technical defects and the inclination toward lenity in the handling of pro se litigants. Here, Diaz Martinez, proceeding pro se, filed a petition for review with this court, challenging the IJ’s denial of her first MTR, before the BIA had reviewed the IJ’s order. The BIA then issued a final order of removal, thus curing the defect. The Government, moreover, has established no prejudice from allowing the appeal to ripen. Therefore, we hold that we have jurisdiction over Diaz Martinez’s case because, absent any prejudice to the Government, a premature petition for
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review of an immigration order may ripen upon final disposition of the case by the BIA.
We note that the posture of the matter before us aligns with Herrera-Molina, Khan, and Jimenez-Morales. Here, as in those cases, the BIA issued a reviewable final order prior to the court’s consideration of any aspect of the petition for review. Herrera-Molina, 597 F.3d at 132; Khan, 691 F.3d at 494; Jimenez-Morales, 821 F.3d at 1309. The Government in those cases showed no prejudice resulting from the erroneous premature filing and has not done so here. Herrera-Molina, 597 F.3d at 132; Khan, 691 F.3d at 494–95; Jimenez-Morales, 821 F.3d at 1309. Diaz Martinez appealed from the IJ’s order denying her motion to reopen. The orders appealed from in Herrera-Molina, Khan, and Jimenez-Morales were a denial of withholding of removal, a denial of a motion for an emergency stay and a motion to reopen, and a finding of no reasonable fear of persecution or torture, respectively. Herrera-Molina, 597 F.3d at 132; Khan, 691 F.3d at 492; Jimenez-Morales, 821 F.3d at 1308. We find unavailing the Government’s contention that these cases are inapposite because of the type of non-final order at
In sum, guided by our jurisprudence in civil cases allowing premature appeals to ripen and noting the persuasive reasoning of the Second, Third, and Eleventh Circuits, in cases with factual and legal circumstances that align with those presented here, we join those courts in holding that, absent any prejudice to the Government, a premature petition for review of an immigration order may ripen upon final disposition of the case by the BIA. We
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therefore have jurisdiction to review Diaz Martinez’s petition for review of the BIA’s denial of her first MTR.
III. Merits
With jurisdiction established over Diaz Martinez’s petition for review of her first MTR, we turn to the merits of her contention that the in absentia removal order imposed by the IJ should be vacated and the BIA abused its discretion in denying such relief.
1. Legal Background
An IJ may issue an in absentia removal order if, after the requisite written notice was provided, an immigrant does not attend her immigration hearing and the Government establishes that she is removable.
The written notice requirement of an in absentia removal order applies both to the charges and conduct alleged and the
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date and time of the removal hearing. “In removal proceedings under [8 U.S.C. §] 1229a . . . , written notice (in this section referred to as a ‘notice to appear’ [“NTA”]) shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying” various things about the proceedings, including “[t]he charges against the alien.”
At a removal hearing, the IJ:
shall require the respondent to plead to the notice to appear by stating whether he or she admits or denies the factual allegations and his or her removability under the charges contained therein. If the respondent admits the factual allegations and admits his or her removability under the charges and the immigration judge is satisfied that no issues of law or fact remain, the immigration judge may determine that removability as charged
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has been established by the admissions of the respondent . . .
An in absentia removal order may be rescinded “upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 1229(a) of this title.”
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2. Standard of Review
We review the denial of an MTR for abuse of discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008). “The BIA abuses its discretion when it acts arbitrarily, irrationally, or contrary to the law.” Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (internal quotation and citation omitted). We review de novo the BIA’s determination of purely legal questions, including claims of due process violations. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). “The sufficiency of [an] NTA is a question of law, which is reviewed de novo.” Kohli v. Gonzales, 473 F.3d 1061, 1065 (9th Cir. 2007) (citing Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir. 2003)).
3. Discussion
The inquiry before us is a narrow one: Did the BIA abuse its discretion in denying the appeal of an MTR, where the IJ in the underlying removal proceeding ordered Diaz Martinez removable in absentia on the basis of an amended NTA of which she did not receive proper notice, pursuant to
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A. Exhaustion
As a threshold matter, Diaz Martinez must preserve issues for appeal by raising them with the BIA.
Diaz Martinez “put the BIA on notice” that she lacked notice of the amended charges such that the BIA had “an opportunity to pass” on the issue. See Zhang, 388 F.3d at 721. In her appeal of the IJ’s denial of her MTR, Diaz Martinez raised the issue of proper notice: “Notice must be reasonably calculated to apprise the alien of his or his [sic] scheduled hearing and the immigration charges against him” (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Like in Miller, Diaz Martinez’s language tracked a statute,
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on the lack of notice argument to establish our jurisdiction. See generally Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir. 2006). Diaz Martinez, therefore, raised and exhausted the issue of improper notice of the immigration charges lodged against her before the BIA.
B. Lack of Service of the Amended NTA
Diaz Martinez argues that she was ordered removed on an ineffective NTA because the Government “did not properly service [her] with an effective amended NTA.”8 She contends that the 2007 NTA, for which the issue of notice is not contested, was subsequently replaced by the amended NTA, which is dated June 23, 2010. Because
The Government does not refute Diaz Martinez’s assertions that notice requires
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The Government cites to the notice of hearing in the record to support its argument—not the amended NTA.
The Government mistakes proper service of the notice of hearing with proper service of the amended NTA and the charges therein. The notice of hearing amended the time and date of Diaz Martinez’s hearing. The amended NTA, however, replaced the underlying factual allegations that the Government lodged against her. Because both documents substitute elements of the underlying 2007 NTA, section 1229(a)(1) requires for each that “written notice” be given to an immigrant in removal proceedings. Thus, the Government’s citation to proper service of the notice of hearing does not establish proper service of the amended NTA.9
Contrary to the Government’s characterization, the record instead provides no evidence that Diaz Martinez was served with the amended NTA, as required by
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signature of Diaz Martinez, and the signature of the Department of Homeland Security Assistant Chief Counsel were all left blank. The amended NTA was, however, stamped as received by the IJ. Notice to Diaz Martinez’s former address is no notice at all.
Section 1229(a)(1) unambiguously requires written notice, either through in person service or by mail to the immigrant or her counsel, of the NTA. Section 1229(a), as noted supra III.1, is a definitional statute, Pereira, 138 S. Ct. at 2108, under which the NTA must include the “nature of proceedings against the alien,” “legal authority under which the proceedings are conducted,” “acts or conduct alleged to be in violation of law,” and “charges against the alien and the statutory provisions alleged to have been violated.”
The IJ received this amended NTA and subsequently ordered Diaz Martinez removed in absentia. The IJ marked a box indicating that “[a]t a prior hearing the respondent admitted the factual allegations in the [charging document] and conceded removability. I find removability established as charged.” Diaz Martinez, therefore, was removed without notice of
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finding [was thus] unsupported by substantial evidence. As a result, the IJ was without statutory authority to order [Diaz Martinez] removed in absentia under
entered the United States at an unknown place and time. The amended NTA, therefore, replaced the specific factual allegations with more general factual allegations.
“[A]dmissions by an alien to facts alleged in an NTA, and concessions of removability, made in the
Notes
[T]here are . . . two types of regulations: (1) those that protect fundamental due process rights, and (2) and those that do not. Cf. United States v. Caceres, 440 U.S. 741, 749–53 (1979). The second type of regulation only implicates due process concerns when the failure to comply with the regulation causes prejudice. See id. at 752–53; United States v.
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Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 1979); see also Montes-Lopez v. Holder, 694 F.3d 1085, 1093 (9th Cir. 2012) (explaining that the prejudice requirement in Calderon-Medina applies to the “violation of a relatively minor procedural rule,” not “serious” regulatory violations). A violation of the first type of regulation, however, implicates due process concerns even without a prejudice inquiry. See United States v. Reyes-Bonilla, 671 F.3d 1036, 1045–46 (9th Cir. 2012) (holding, without considering prejudice apart from the plausibility of relief, that violation of regulation providing for right to counsel constituted denial of due process); see also United States v. Vidal-Mendoza, 705 F.3d 1012, 1015–16 (9th Cir. 2013) (holding, without prejudice inquiry, that immigration judge’s failure to inform alien of eligibility for relief, as required by regulation, violated due process).
771 F.3d at 1205; see also Noriega-Lopez v. Ashcroft, 335 F.3d 874, 884 (9th Cir. 2003) (where the BIA lacks authority to issue a removal order, no prejudice showing is required); Lazaro v. Mukasey, 527 F.3d 977, 981 (9th Cir. 2008) (“If the IJ’s amendment of Lazaro’s NTA was ultra vires, he is not required to show prejudice to the outcome of his proceedings for relief to be granted.”). We doubt that failure to notify an immigrant of the charges against her is a “minor” violation of a procedural rule. See Lazaro, 527 F.3d at 481.
It is clear, moreover, that the due process violation then prejudiced Diaz Martinez. She “is not required to prove that [s]he would have received discretionary relief . . . [and] only needs to show that [s]he has plausible grounds for relief.” United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir. 1996). There are “at least three plausible factors that would support an application for discretionary relief” through NACARA or cancellation of removal: first, Diaz Martinez has lived in the United States for the last thirty years, after entering as a minor in 1989; second, she is a citizen of El Salvador; and third, she is the mother of five U.S. citizen children, two of whom have health issues which may demonstrate “an extraordinary need for . . . assistance.” Id.
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IV. Conclusion
We first answer a question of first impression before our court: Can a petition for review of an IJ’s final order of removal, prematurely filed with our court prior to a final order from the BIA, ripen into an effective appeal pursuant to
We next return to the narrow inquiry before us: Did the BIA abuse its discretion in denying the appeal of an MTR, where the IJ in the underlying removal proceeding ordered Diaz Martinez removable in absentia on the basis of an
Furthermore, the removal order, issued without service of the amended NTA, prejudiced Diaz Martinez because: (1) the failure to serve her with the NTA deprived her of the opportunity to seek a continuance, pursuant to
8 C.F.R. § 1003.30 , to strengthen her application for relief from removal in light of the amended factual allegations; see, e.g., Al Mutarreb, 561 F.3d at 1031 n.9 (9th Cir. 2009) (“If [the government] had . . . attempted to amend the NTA on the spot to state additional charges, both the INA and due process would likely have required that the proceedings be continued while [the government] issued written notice of the new charges. . . .”); (2) she lacked notice of the facts she would need to prove to qualify for relief from removal, see supra n. 11, thus “obscur[ing] the charges against her or obstruct[ing] her ability to respond to the charges and present her requests for” relief, Kohli, 473 F.3d at 1068–69, and contravening basic principles of due process, such as an immigrant’s right “to examine the evidence against [her and] to present evidence on [her] own behalf.”8 U.S.C. § 1229a(b)(4)(B) ; Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (holding that a full and fair hearing includes “a reasonable opportunity to present evidence”); and (3) Diaz Martinez’s order of removal was ultimately not supported by substantial evidence, as it was based on an ineffective NTA, see Al Mutarreb, 561 F.3d at 1031.
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amended NTA of which she did not receive proper notice, pursuant to
GRANTED, REMANDED.
CLIFTON, Circuit Judge, dissenting:
I agree with the majority opinion that this court has subject matter jurisdiction over Diaz Martinez’s first motion to reopen, where Diaz Martinez filed her petition before the BIA issued a final decision, as discussed in the opinion. I regret, however, that I must dissent from its ultimate resolution, for two separate reasons. First, Diaz Martinez failed to exhaust before the BIA the argument that the majority opinion relies upon, that the Amended NTA was ineffective because it was not served on her. Because she did not present that argument to the agency, she cannot obtain relief on it here. Second, to obtain relief based on a purported due process violation, a petitioner must demonstrate that she suffered prejudice as a result, and Diaz Martinez did not. The petition for review should be denied.
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I. Exhaustion
As a general proposition, this court may not reach the merits of a legal claim not presented in administrative proceedings below, including due process claims involving no “more than ‘mere procedural error’ that an administrative tribunal could remedy.” Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
At Diaz Martinez’s original removal hearing, the IJ checked the box that “[a]t a prior hearing the respondent admitted the factual allegations in the Notice to Appear and conceded removability. I find removability established as charged.” The original NTA stated that Diaz Martinez arrived in the United States at or near San Ysidro, California, on or about August 25, 1989, and was not admitted or paroled after inspection. It also alleged she was a native and citizen of El Salvador. In her motion to change venue granted May 1, 2007, Diaz Martinez stated that she pleaded to “all the counts and allegations against her on the charging document,” including that she arrived in the United States at or near San Ysidro, California, on or about August 1, 1989.
On June 23, 2010, the government submitted a Form I-261, Additional Charges of Inadmissibility / Deportability. The form did not indicate any additional charges being lodged against Diaz Martinez, but it did include one sentence in the section entitled: “In support of the additional charge(s) there is submitted the following factual allegation(s) in lieu of those set forth in the original charging document.” The statement was: “You entered the United States at or near an unknown place on or about an unknown date.” This document did not check a box indicating how it was delivered to her, but the address listed is her old address, which she indicated had changed in a filing to the court the same day.
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There were two different arguments Diaz Martinez could have made regarding lack of notice. One argument, which she focused on before us, was that she failed to appear at the October 27, 2010, hearing before the IJ because she was not given proper notice of her hearing time. The other argument, upon which the majority opinion relies, was that she was not given proper notice of the charges against her because the Amended NTA was not properly served on her, having been mailed to an address that changed. Diaz Martinez never made the second argument to the BIA.
The majority opinion begins, on 28, by acknowledging the exhaustion requirement and follows with a description of our precedent with which I agree:
“[W]e do not employ the exhaustion doctrine in a formalistic manner, but rather inquire into whether the issue was before the BIA such that it had the opportunity to correct its error.” Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008). “[O]ur precedent requires nothing more than” putting “the BIA on notice” of a challenge such that the BIA “had an opportunity to pass” on it. Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004). Of course, each case turns on its own facts and circumstances.
But nothing in the actual facts and circumstances of this case supports a conclusion that the BIA was put on notice of the argument that the Amended NTA was not served on her. That argument was never made to the BIA.
Instead, the majority opinion presumes that by making the first argument regarding lack of notice of the October 27 hearing, Diaz Martinez also exhausted any other argument
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that includes the magic words “lack of notice.” The majority opinion argues, at 28, with citation to Miller v. Sessions, 889 F.3d 998, 1001 (9th Cir. 2018), for the proposition that “the use of the phrases ‘lack of notice’ and seeking reopening ‘at any time’ in briefs to the BIA may be sufficient in some instances to put the BIA on notice of the statute—
In actuality, Miller illustrates what it means to put the BIA on notice, which Diaz Martinez did not do. In that case, the petitioner said she never received mailed notices of her removal hearing, and she was subsequently ordered removed in absentia. 889 F.3d at 1000. The government argued the petitioner could not seek relief under
That is not what happened here, however. There is nothing in the record or Diaz Martinez’s briefs to us that supports the proposition that she ever argued to the agency
Diaz Martinez v. Barr 39
that she had not received proper service of the Amended NTA. In her motion to reopen before the IJ, Diaz Martinez argued about her failure to receive notice of the hearing, not any failure to receive notice of the Amended NTA. She made the same argument in her first motion to reopen before the BIA. Her second motion to reopen, filed directly with the BIA, made clear that the “lack of notice” argument presented to the BIA regarded “whether [Diaz Martinez] received sufficient notice to apprise her of her hearing date for October 27, 2010.” There was no reference in that motion to the Amended NTA or any failure to notify her of the charges.
The majority opinion, at 30, chastises the government for “mistak[ing] proper service of the notice of hearing with proper service of the amended NTA and the charges therein.” Similarly, it observes, at 30 n. 9, that the BIA “similarly only addressed the notice of hearing, concluding it was properly served, and did not address lack of notice of the amended NTA.” But the government’s argument and the BIA’s discussion make perfect sense because it was the service of the notice of hearing, not the service of the Amended NTA, that was the subject of the argument Diaz Martinez made to the BIA. The majority opinion fails to point to anything presented by Diaz Martinez that should have prompted the government and the BIA to discuss notice of the Amended NTA. The claim that Diaz Martinez had not been given notice of the October 27 hearing was also the primary focus of the argument made to us. Before this court, Diaz Martinez sought to add more arguments, including this one. Her pro bono counsel on appeal and the students who participated with him should be commended for their ingenuity and diligence, but that does not overcome the fact that those arguments had not previously been presented to the BIA.
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In sum, the BIA was not put on notice of the argument upon which the majority relies to grant the petition for review. Diaz Martinez’s “failure to assert this claim before the BIA deprived it of the opportunity to address the issue and divests us of jurisdiction to review it.” See Segura v. Holder, 605 F.3d 1063, 1066 (9th Cir. 2010). The majority opinion acknowledges that the law requires exhaustion. Holding that use of the term “lack of notice” in an argument to the BIA opens the door to any argument based on any lack of notice, even of a document that was not identified to the BIA, makes a mockery of that exhaustion requirement. There was no reason for the BIA to consider or comment upon the purported non-service of the Amended NTA as that assertion was never made to it.
Miller cannot support the majority opinion’s use of it. It is one thing to expect the BIA to have knowledge of the statute it is tasked with interpreting and to be able to identify the statute that properly applies once the agency has been put on notice of the facts. It is a very different thing to require the BIA to discern for itself that there might be facts contained within the record, not identified to the BIA by the petitioner, that might support a claim that proper notice had not been given at some other point in time.
The argument relied upon by the majority opinion was not exhausted. That should require us to deny the petition.
II. Prejudice
The majority concludes, at 27, that the record provides no evidence of proper service of the amended NTA “as required by due process.” Even if Diaz Martinez had properly exhausted a claim based on failure to serve the Amended NTA, that claim would fail because she did not assert, let alone prove, that she was prejudiced, an essential
Diaz Martinez v. Barr 41
element of a due process claim. In practical terms, the Amended NTA made no difference in this case.
To prevail on a claimed due process violation, a petitioner must show prejudice. See Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011) (“An alien bears the burden of proving the alleged violation prejudiced his or her interests.”); United States v. Jimenez-Borja, 378 F.3d 853, 859 (9th Cir. 2004) (upholding a deportation order where the IJ failed to advise the petitioner of his possible eligibility for a waiver of deportation because petitioner would not have been able to make the showing required for the waiver, and thus “was not prejudiced by the failure to be advised of its existence.”). Any failure to properly serve the Amended NTA on Diaz Martinez had no impact on the BIA decisions before us.
The original charges against Diaz Martinez included the allegations that she was a native and citizen of El Salvador and that she entered the United States “at or near San Ysidro, California, on or about August 25, 1989.” The Amended NTA replaced those allegations with the allegation that she had “entered the United States at or near an unknown place on or about an unknown date.”
The amendment to the allegations could not have had any impact on the IJ’s finding that Diaz Martinez was removable. The order of removal entered by the IJ following her failure to appear for the October 27 hearing noted that at a prior hearing she had admitted the factual allegations in the NTA and conceded removability. If she had admitted the more specific allegations contained in the original NTA, she necessarily conceded the unspecific allegation in the Amended NTA. Diaz Martinez never made an argument to the BIA that she was not, in fact, removable. Nor has she made any such argument to us. She was not prejudiced by
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that finding by the IJ that she was removable. We have held that “due process does not require inclusion of charges in the NTA that are not grounds for removal but are grounds for denial of relief from removal.” Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006). The majority opinion does not even try to explain how the finding of removability could have been affected.
Instead, the majority opinion states, at 32 n. 11, that Diaz Martinez was prejudiced because her application for discretionary relief was affected.
How? That is something the majority opinion does not explain.
It cannot, because the Amended NTA had no impact on the ability of Diaz Martinez to seek discretionary relief. Once she had been found removable, a finding she did not contest, she was permitted to seek discretionary relief. That was true whether the finding of removal was based on the original NTA or on the Amended NTA. She had the opportunity to proceed with that application at the October 27 hearing. The reason she did not pursue that application was that she failed to appear for the hearing. The Amended NTA did not cause that failure.
The majority opinion says, at 29 n. 8, that it does not reach the issue of whether she had been given proper notice of the October 27 hearing, but that is sophistry. The main argument presented to us by Diaz Martinez was that she had not been given proper notice of that hearing. If that argument had merit, the majority opinion would not take the tortured path it has adopted. In brief, I note that the IJ and the BIA had a legitimate basis for denying Diaz Martinez’s first motion to reopen, based on the failure to support that motion with evidence despite having been given time to do that. The
Diaz Martinez v. Barr 43
BIA did not abuse its discretion in denying her later motion to reopen as both time and number barred. Even if the merits of the argument were reached, the record reflects that her attorney was personally served with the notice of the October 27 hearing, as the majority opinion notes, at 8. That was sufficient under the law to satisfy the service requirement.
More to the point, for current purposes, the Amended NTA had nothing to do with any of this and, in particular, nothing to do with her failure to obtain discretionary relief. The “prejudice” hypothesized by the majority opinion is fantasy.
Perhaps understanding that the case for actual prejudice is dubious, the majority opinion also appears to suggest, at 32, that no showing of prejudice was required because Diaz Martinez was ordered removed “on an ineffective NTA.” The majority opinion then quotes, in a footnote, at 32 n.11, from United States v. Raya-Vaca, 771 F.3d 1195, 1205 (9th Cir. 2014), to support an implicit conclusion that Diaz Martinez should not be required to show any actual prejudice to obtain relief. That is simply not the law, however. As it did with the exhaustion requirement, the majority opinion skirts around the prejudice requirement by misapplying a precedent.
The Raya-Vaca appeal involved a challenge to a criminal conviction under
Raya-Vaca attacked the order in his case, which resulted from an expedited removal proceeding, on the ground that it
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was fundamentally unfair because it did not comply with the requirements of due process. Id. at 1202. Expedited removal proceedings did not by statute afford him an opportunity for administrative or judicial review. Id. An immigration officer was expected to conduct an inspection and determine whether the alien was inadmissible and subject to expedited removal. Id. at 1199–1200. The immigration officer was required by regulation to advise the alien of the charges and to give the alien an opportunity to respond to the sworn statement that detailed those charges. Id. at 1200. Even if the alien was subject to expedited removal, he could obtain statutory relief in the form of being permitted to withdraw his application for admission and to depart voluntarily, without a removal order and without formal immigration consequences. Id. Raya-Vaca argued that he was never advised of the charges against him or presented an opportunity to review the sworn statement prepared by the immigration officer to support his removal. Id. at 1203.
Our court agreed with the argument, noting that due process always requires “notice and an opportunity to respond” and that the “failure to inform Raya-Vaca of the charge against him and to provide him the opportunity to review the sworn statement [of the immigration officer] constituted a violation of Raya-Vaca’s due process rights.” Id. at 1204. It was in that context that we made the observation quoted in the majority opinion, at 32 n.11, that there is a type of regulation “that protect[s] fundamental due process rights,” distinct from the “‘violation of a relatively minor procedural rule.’” Id. at 1205 (quoting Montes-Lopez v. Holder, 694 F.3d 1085, 1093 (9th Cir. 2012)).
But the majority opinion disregards the rest of the Raya-Vaca opinion, which went on to discuss how the defendant in that case did, in fact, demonstrate prejudice. Id. at 1206–
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11. We observed that a showing of prejudice might not be required to “show the due process violation itself,” id. at 1205, but that did not end the inquiry. To obtain relief, Raya-Vaca still had to show that he had been prejudiced by the due process violation. “To succeed in demonstrating that the 2011 expedited removal order was fundamentally unfair, Raya-Vaca must also establish that he suffered prejudice as a result of the entry of the order. To do so, Raya-Vaca must show that he had ‘plausible grounds for relief’ from the removal order.” Id. at 1206 (citation omitted). We concluded that he satisfied that requirement because there were grounds that might have justified relief from the expedited removal order, if he had understood the charges and been given an opportunity to respond to them. Thus, “Raya-Vaca has shown that he had some evidentiary basis for relief from his 2011 removal order.” Id. at 1210. It was on that basis that his conviction was reversed.
The majority opinion does not discuss that part of Raya-Vaca. Diaz Martinez is required to demonstrate prejudice to obtain relief, but she has not suggested any actual prejudice she suffered due to a failure to serve the Amended NTA on her. She has not contended that was the reason that she failed to appear at the October 27 hearing that resulted in the order of removal in absentia. She had notice of that hearing and, if she had appeared, the hearing would have provided her with an opportunity to present her position. Without a showing of prejudice, our precedent does not permit us to grant her relief based on purported due process violations that had no practical impact whatsoever.
Moreover, as should be clear, the facts in our case do not in the slightest resemble the facts in Raya-Vaca. The removal order in that case resulted from expedited removal proceedings in which it appears the alien did not know what
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was happening. The problem there was not simply a paperwork glitch. “Even if express notice of the charge of inadmissibility were not necessary, we do not see how he could have known the specific charge against him without being told of it, and Raya-Vaca averred he was unaware that he was facing a formal removal order based on his lack of documentation.” Id. at 1206. Diaz Martinez did not make any similar claim, and she could not, as she was already well aware that she was charged with having entered this country without inspection or any lawful authority and had already conceded removability. The Amended NTA did not alter the charged basis for her removal at all.
Simply put, Diaz Martinez suffered no prejudice from the failure to serve her with the Amended NTA. Treating her claim that she was not properly served with the Amended NTA as a “violation of fundamental due process rights” that relieves her from demonstrating prejudice is not supported by our precedent and guts the well-established requirement that relief based on a violation of due process requires a showing of prejudice.
III. Conclusion
I agree that this court has subject matter jurisdiction over Diaz Martinez’s motions to reopen, but I disagree that she preserved the argument that she lacked notice of the amended charges against her, and I further disagree that she has demonstrated prejudice from the failure to serve her with the amended charges. I therefore respectfully dissent. The petition for review should be denied.