JORGE VICENTE NIVELO CARDENAS, Petitioner, versus MERRICK GARLAND, U.S. Attorney General, Respondent.
No. 20-60778
United States Court of Appeals for the Fifth Circuit
June 2, 2023
Before STEWART, DENNIS, and SOUTHWICK, Circuit Judges. LESLIE H. SOUTHWICK, Circuit Judge:
Petition for Review of an Order of the Board of Immigration Appeals Agency No. A077 444 951
We conclude Petitioner forfeited his right to notice by failing to keep the immigration court apprised of his correct mailing address or to correct an erroneous address. We DENY his petition.
FACTUAL AND PROCEDURAL BACKGROUND
Jorge Vicente Nivelo Cardenas, a native and citizen of Ecuador, entered the United States without inspection on or about July 17, 1999. He was 25 years old. Soon after his entry, he was apprehended with others who had entered the country near Brownsville, Texas. On July 23, 1999, he was given a Notice to Appear (“NTA”), charging him as subject to removal because he was present in the United States without having been admitted or paroled. The NTA did not provide a hearing date or time. Nivelo Cardenas’s then-current address was correctly listed on the NTA as the address of the processing center in Los Fresnos, Texas, where he was then detained.
The NTA informed Nivelo Cardenas that he was required to notify the immigration court immediately of any change in his address, that the Government would not be required to provide him written notice of his hearing if he did not provide an address at which he could be reached, and that the immigration judge (“IJ”) could issue a removal order in his absence if he failed to attend a designated hearing. Nivelo Cardenas and the border patrol agent signed the certificate of service, which also stated Nivelo Cardenas “was provided oral notice in the Spanish language of the time and place of his . . . hearing and of the consequences of failure to appear as provided in section 240(b)(7) of the Act.” See
On August 2, 1999, notice was served on Nivelo Cardenas that his case had been scheduled for 9:00 a.m. on August 12, before the immigration court at the Los Fresnos center where he was detained. On August 12, he was served with notice of a hearing scheduled for August 19. He was released from custody on August 17. On that date, he signed a form entitled “Notification Requirement for Change of Address,” indicating his mailing address was “109 Cedar Ave” in “Patcbogue, NY 11772.” The same address was also reflected in a Form I-830, “Notice to EOIR: Alien Address,” that was dated the same day. No such city exists. The “b” in the name should have been an “h,” i.e., Patchogue.
On October 1, 1999, the immigration court mailed Nivelo Cardenas a hearing notice to the address with the misspelled city, with the hearing location and a date and time of January 28, 2000, at 10:00 a.m. Nivelo Cardenas did not appear at the scheduled hearing, and the IJ issued a removal order in absentia.
In November 2018, counsel for Nivelo Cardenas filed a motion to rescind the removal order and reopen his removal proceedings. He asserted he never received notice of the January 2000 hearing because the notice was addressed improperly and was therefore returned without delivery. The motion included Nivelo Cardenas’s unsworn written statement indicating, among other things, that he gave an immigration officer his brother’s address in “Patchogue, New York”; that he checked his mailbox every day for a hearing notice but never received anything; and that he gave up after two years of waiting to hear from the immigration court. The motion also cited a “bag and baggage letter” that correctly spelled “Patchogue” as evidence he provided the immigration court with the correct address and was not responsible
The IJ denied the motion on February 20, 2019. The IJ found the hearing notice was mailed to the “Patcbogue” address Nivelo Cardenas provided to immigration authorities, as documented in the form he signed. The IJ also found the mailing was returned to the court by the United States Postal Service as undeliverable with a stamped notation of “Returned to sender, Attempted, Not known,” and a handwritten notation stating, “Please return it to the sender.” The IJ reasoned that Nivelo Cardenas was notified of his obligation to keep the court apprised of his correct mailing address; that there was no showing he informed the court of his correct address before January 28, 2000; and that he was provided with proper notice of the January 28, 2000, hearing because there was proof of attempted delivery to the last address he provided.
The IJ acknowledged Nivelo Cardenas’s written statement filed with the motion but concluded the statement should not be considered because it was not sworn before a notary public or executed under penalty of perjury. Regardless, the IJ reasoned the outcome would be the same even if the statement were considered.
Nivelo Cardenas appealed to the Board of Immigration Appeals (“BIA”). He first argued the IJ relied on documents that were not in the record of his immigration proceedings, a claim based on the fact those documents were not among the records Nivelo Cardenas obtained pursuant to a request for his file under the Freedom of Information Act (“FOIA”). He also challenged the IJ’s application of the law and contended the IJ failed to
On August 5, 2020, the BIA upheld the IJ’s decision and dismissed the appeal. The BIA determined Nivelo Cardenas was notified of his duty to provide a correct address — which included the obligation to correct any errors in his listed address — but that he failed to do so. Therefore, the BIA concluded, he received constructive notice of the hearing when notice was mailed to the last address he provided. The BIA additionally stated it appeared the Postal Service returned the mailing not because it was undeliverable but because someone at the address asked that it be returned. Nivelo Cardenas’s argument regarding the bag and baggage letter was rejected because he had not shown he provided the address listed in that letter or that he otherwise corrected the misspelled city name in his address.
The BIA then determined his failure to update his address for over 18 years showed a lack of due diligence and undermined his contention he took sufficient action to maintain his rights in the removal proceedings. The BIA also observed that Nivelo Cardenas did not identify any effort to contact the immigration court in the intervening years. Noting due diligence was a significant factor supporting reopening, the BIA determined Nivelo Cardenas’s lack of diligence militated against reopening.
On June 4, 2021, the BIA denied reconsideration. A “denial of a motion to reconsider is a separate final order, requiring its own petition for review.” Moreira v. Mukasey, 509 F.3d 709, 712 (5th Cir. 2007). Nivelo Cardenas timely petitioned this court for review of the BIA’s denial of reconsideration. He had filed earlier a timely petition for review of the BIA’s August 2020 decision. See
DISCUSSION
The primary issue on appeal is whether Nivelo Cardenas was entitled to have the in absentia removal order rescinded and proceedings reopened due to an improper address used to mail notice of the January 2000 hearing. There are other issues raised, though, and we will review them as well.
We review both the original BIA decision and the decision to deny reconsideration. The errors raised as to the denial of the motion to reconsider are largely the same issues raised in the challenge here to the initial BIA decision. Our review of a denial of reconsideration is highly deferential; we will uphold the denial so long as it was “not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (quotation marks and citation omitted). As to review of BIA decisions generally, we apply a de novo standard to the BIA’s legal conclusions. Arulnanthy v. Garland, 17 F.4th 586, 592 (5th Cir. 2021). Fact-findings are reviewed for substantial evidence and will not be overturned unless the evidence compels a contrary conclusion. Hernandez-Castillo v. Sessions, 875 F.3d 199, 204 (5th Cir. 2017). “[W]e review the BIA’s order and will evaluate the [IJ’s] underlying decision only if it influenced the BIA’s decision.” Id.
Generally, we may uphold a BIA decision only on the basis of its stated rationale, but “[e]ven if there is a reversible error in the BIA’s analysis, affirmance may be warranted where there is no realistic possibility that, absent the errors, the BIA would have reached a different conclusion.” Luna-Garcia v. Barr, 932 F.3d 285, 291 (5th Cir. 2019) (quotation marks and citation omitted).
I. Notice arguments
A Notice to Appear initiates removal proceedings. Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2280 (2021). The NTA must specify certain information, including “[t]he time and place at which the proceedings will be held.”
Other subsections govern the issuance of an in absentia removal order. Under
In moving to have his in absentia removal order rescinded, Nivelo Cardenas relied on a statutory subsection allowing rescission if “the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of
While the petition for review was pending in this court, the Supreme Court issued an opinion holding that before an NTA could invoke the stop-time rule1 for cancellation of removal, all necessary information, including
In Rodriguez, the petitioner was mailed an NTA at his address in Texas, but it lacked the date and time of his immigration hearing. Id. at 353. A notice of hearing was later mailed to the same address, but Rodriguez contended he did not receive the hearing notice because by then he had moved. Id. He was ordered removed in absentia when he did not appear at the hearing, and the BIA upheld the removal order. Id. at 353–54. We vacated based on Niz-Chavez, reasoning the BIA erred in determining the NTA and the subsequent written hearing notice together satisfied the notice requirements of
a. Exhausted claim
We start with whether we can even reach this issue. If the argument now presented was not earlier raised with the BIA, the issue is unexhausted and we have no jurisdiction to consider it. See
The first time Nivelo Cardenas argued there was no subject matter jurisdiction was in his motion for reconsideration at the BIA. His argument relied on the return of the notice of hearing as undelivered, not on Pereira.
The BIA’s order was clear, though, that it rejected a Pereira challenge to subject matter jurisdiction:
The respondent argues that the Immigration Court does not have jurisdiction over these proceedings under Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Respondent’s Mot. at 21-23). However, in United States v. Pedroza-Rocha, 933 F.3d 490 (5th Cir. 2019), the court held that the lack of time and place on an NTA does not divest the Immigration Court of subject matter jurisdiction. Id. at 497. Thus, the respondent’s NTA was not defective and jurisdiction in this case is proper.
It does not matter whether the BIA misstated Nivelo Cardenas’s argument. The important matter is the BIA analyzed the currently-made subject matter jurisdiction argument on the merits, satisfying the need for exhaustion. See Lopez-Dubon, 609 F.3d at 644.
b. Forfeiting right to notice
Under the Immigration and Nationality Act, sending “by mail under this section shall be sufficient if there is proof of attempted delivery to the last address provided by the alien in accordance with subsection (a)(1)(F).”
In the earliest of the three cases, in 2000, the NTA served on Spagnol-Bastos did not provide a hearing date and time; the only address he allegedly provided before his release on bond was far more errant than the one in the case before us. See Spagnol-Bastos, 19 F.4th at 804. It was “102-169 F Apt 3C, Manhaion N.Y. N.Y. 10029,” documented in a Form I-830, while the correct address (not shown until 18 years later) was allegedly “169 East 102nd Street, #3C, New York, 10029.” Id. at 804–05. He was released on bond, then a hearing notice was later mailed to the incorrect address and returned as “unclaimed.” Id. at 804. Spagnol-Bastos did not appear and was ordered removed in absentia. Id. About 18 years later, he moved to rescind the removal order and reopen his proceedings because he had provided the correct address but it erroneously had been recorded on the Form I-830. Id. at 804–05.
We held: “Because Spagnol-Bastos failed to provide ‘an address . . . at which [he] may be contacted respecting’ the removal proceedings,
In the second recent precedent, the alien did not provide any address after being personally served with an NTA that lacked a hearing date and time. Gudiel-Villatoro, 40 F.4th at 248. He was ordered removed in absentia and thereafter filed a motion to reopen the proceedings and rescind the removal order. Id. We rejected Gudiel-Villatoro’s argument that his NTA needed to include the date and time of his removal proceeding. Id. at 249. The court indicated an alien’s right to have his in absentia removal order rescinded and proceedings reopened if the NTA did not include all the information specified in
In another recent opinion, the NTA lacked a hearing date and time, and the alien had not provided any address. Platero-Rosales, 55 F.4th at 976. She was ordered removed in absentia; 14 years later, she filed a motion to reopen the proceedings and rescind the removal order. Id. The court rejected her argument that the NTA needed to include the time and place of her removal proceeding. Id. at 977. Citing Spagnol-Bastos and Gudiel-Villatoro, the court held that, under
We find Chief Judge Richman’s concurring opinion in Platero-Rosales particularly helpful. She wrote that “providing the alien with a ‘notice to appear’ that must necessarily include the time and place of a removal hearing, is not a prerequisite to the applicability of
The Rodriguez decision is not precedential with regard to the issue before our court because the record in Rodriguez reflects that the [BIA] did not rest its decision on, or even discuss,
8 U.S.C. § 1229a(b)(5)(B) , which says that “[n]o written notice shall be required under subparagraph (A) if the alien has failed to provide the address required under section 1229(a)(1)(F) of this title.” . . . By contrast, our court’s decisions in Spagnol-Bastos v. Garland and Gudiel-Villatoro v. Garland do squarely address the issue we confront today. Accordingly, they are binding precedent, and they govern under our rule of orderliness.
Id. (footnotes omitted).
This foundation of caselaw laid, we examine the parties’ arguments. The Government insists the recent caselaw means that an alien forfeits notice when he fails to provide an address, update an old address, or correct an erroneous address. Thus, the Government argues, Nivelo Cardenas forfeited his right to notice when he failed to keep the immigration court apprised of his correct mailing address/to correct an erroneous address.
Nivelo Cardenas argues that, under the rule of orderliness,7 Rodriguez governs this case because it conflicts with Spagnol-Bastos, Gudiel-Villatoro, and Platero-Rosales. Further, he contends Spagnol-Bastos misstated the facts
We see the following as the proper manner to understand these precedents. The specific issue before the court in Rodriguez was “whether the
The question whether Rodriguez updated his address before the notice of hearing was sent was not discussed and is factually unclear. There was no argument in Rodriguez about the applicability of
What is clear is that Spagnol-Bastos, Gudiel, and Platero-Rosales all held an alien could forfeit his right to notice under
Nivelo Cardenas also contends an alien’s failure to correct a misspelled address in an NTA, as was the case in Mauricio-Benitez, should differ
In summary, we hold: (1) Rodriguez does not apply here; (2) Spagnol-Bastos, Gudiel, and Platero-Rosales govern this case; (3) the applicable rule from those cases is that an alien who fails to provide a viable mailing address/to correct an erroneous address forfeits his right to notice under
II. Additional arguments as to why the BIA erred
In addition to the notice issues, Nivelo Cardenas raises several arguments as to why the BIA erred in dismissing his appeal and denying his motion for reconsideration.
Nivelo Cardenas argues the IJ and BIA improperly discounted his written statement that he provided the immigration court with the correct address. The only relevant section of his statement is this: “I gave the immigration officer my brother’s address in Patchogue, New York.” Even if the IJ and BIA accepted the statement as true, the evidence is that Nivelo Cardenas signed the “Notification Requirement for Change of Address,” and the misspelled city name was on the form. The Form I-830 also had the misspelling. Even if the error were due to fault by the immigration officer, Nivelo Cardenas was obligated to correct that address pursuant to Sections
Error also is alleged as to the bag and baggage letter. The BIA discussed the letter only in responding to Nivelo Cardenas’s arguments on appeal and, thus, the discussion did not constitute an impermissible factual finding. Regardless, even though the bag and baggage letter contained the correct address, it does not contain a date, nor does it state by whom it was created. Therefore, it does little to show Nivelo Cardenas timely corrected with the immigration court the typographical error contained in the “Notification Requirement for Change of Address” and Form I-830. Accordingly, even if the BIA engaged in impermissible factfinding, affirmance is warranted because “there is no realistic possibility” the bag and baggage letter could prove Nivelo Cardenas timely corrected the error in his address through the appropriate channels. See id.
Another argument is that the BIA improperly made a fact-finding about the meaning of the handwritten note on the returned notice of hearing — “Please return it to the sender.” The BIA found that someone who received the letter must have requested it be returned. Even if that finding was in error, it would not warrant reconsideration. The finding is too insignificant to have caused the BIA to have reached a different conclusion without it. See id. The fact remains that Nivelo Cardenas did not correct the typographical error.
Nivelo Cardenas also argues the BIA improperly considered due diligence in its analysis. The BIA may consider an alien’s due diligence and the credibility of the statements in the alien’s affidavit to determine whether the presumption of effective service by regular mail was rebutted. Matter of M-R-A, 24 I & N Dec. 665, 676 (BIA 2008); see also Mauricio-Benitez, 908 F.3d at 150. In considering due diligence here, the BIA was addressing Nivelo
In addition, Nivelo Cardenas contends the BIA failed to consider his arguments that the IJ lacked subject matter jurisdiction. Specifically, he asserts subject matter jurisdiction did not exist because the Department of Human Services (“DHS”) failed to simultaneously serve an NTA on him when DHS presented the NTA to the IJ, as required by
Additionally, Nivelo Cardenas maintains that subject matter jurisdiction did not exist, because his NTA was void for willfully misrepresenting he was given oral notice of the time and place of his hearing. We disagree. As the Government explains, “if the date and time information is not yet known, and Nivelo is informed of that fact, then he has been provided the ‘date and time’ information as was known at the time and consistent with the” NTA.
The petition for review is DENIED.