MARCELO EUGENIO RODRIGUEZ, аlso known as MARCELO RODRIGUEZ ANDUEZA v. MERRICK GARLAND, U.S. ATTORNEY GENERAL
No. 20-60008
United States Court of Appeals for the Fifth Circuit
April 19, 2022
Petition for Review of the Order of the Board of Immigration Appeals BIA No. A207 311 796
PER CURIAM:
The petition for panel rehearing is DENIED.
Additionally, the court having been polled at the request of one of the members of the court and a majority of the judges who are in active service not having voted in favor, rehearing en banc is DENIED.1 In the en banc poll, eight judges voted in favor of rehearing (Chief Judge Richman and
ENTERED FOR THE COURT:
PATRICK E. HIGGINBOTHAM
United States Circuit Judge
The court has declined to rehear this case en banc. That is the right call. The panel‘s decision was compelled by Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), and has since been joined by the Ninth Circuit. See Singh v. Garland, 24 F.4th 1315, 1319 (9th Cir. 2022).1 Our en banc resources are rarely well spent stirring up circuit splits.
A few responses to my esteemed dissenting colleagues.
First, the main dissent says “textual and contextual” differences distinguish the in absentia provision in this case from the stop-time provision in Niz-Chavez. See post at 6 (Elrod, J., dissenting).2 Not so. Both reference the definition of “a ‘notice to appear‘” in
- Stop-time is triggered “when the alien is served a notice to appear under section 1229(a) of this title.”
8 U.S.C. § 1229b(d)(1) . - In absentia removal may be rescinded if the alien “did not receive notice in accordance with paragraph (1) or (2) of section 1229(a) of this title[.]”
Id. § 1229a(b)(5)(C)(ii) . In removal proceedings, “written notice (in this section referred to as a ‘notice to appear‘) shall be given, specifying various things. Id. § 1229(a)(1) .
Niz-Chavez held that stoр-time requires a single notice; notices-by-installment won‘t do. 141 S. Ct. at 1486. Why? The letter “a,” signifying a “single document,” appears in both the referencing provision (
In this case, the only difference is the lack of one “a.” Instead of “a notice to appear,” the in absentia provision demands “notice in accordance with paragraph (1) or (2) of section 1229(a).”
The dissent‘s best argument relies on a counterfactual in Niz-Chavez. See post at 8 (Elrod, J., dissenting). The Court imagined a law merely requiring “‘notice’ in its noncountable sense,” like one demanding the government “provide[] ‘notice’ (or perhaps ‘sufficient notice‘) of the mandated information.” Niz-Chavez, 141 S. Ct. at 1481. “This case,” the dissent says, “appears to be the Court‘s counterfactual.” Post at 8 (Elrod, J., dissenting). It‘s not. The in absentia provision doesn‘t merely demand “notice” or “sufficient notice,” but “notice in accordance with [
The dissent also proposes an alternate way of finding sufficient notice: the second notice “might have satisfied ‘notice’ in accordance with paragraph . . . (2).” Post at 9 (Elrod, J., dissenting); see
Both dissents suggest the court should defer to the BIA‘s recent decision in Matter of Laparra, 28 I. & N. Dec. 425 (BIA 2022), which disagreed with the panel. See post at 11 (Elrod, J., dissenting); post at 2 (Ho,
That flies in the face of the Supreme Court‘s Pereira decision, which Laparra ignored. As Pereira explained, a valid (a)(2) notice “presumes that the Government has already served a ‘notice to appear under section 1229(a)’ that specified [the required] time and place.” 138 S. Ct. at 2114. “Otherwise,” said the Court, “there would be no time or place to ‘change or postpon[e].‘” Ibid. (quoting
Finally, the main dissent warns that the panel decision botches an “extraordinarily important” issue and will reopen many in absentia removals. Post at 1 (Elrod, J., dissenting). Those concerns are serious and, frankly, I share them. Not everyone loved Niz-Chavez. See 141 S. Ct. at 1488 (Kavanaugh, J., dissenting) (“I find the Court‘s conclusion rather perplexing as a matter of statutory interpretation and common sense.“). But we have to apply it and that‘s what the panel did.
I respectfully concur in the decision not to rehear this case en banc.
The court should have taken this case en banc. Breaking from our precedents, the panel opinion holds that aliens removed in absentia after consciously failing to appear at their removal proceedings may reopen their cases and apply for rescission of removal if notice of their proceedings was sent in two documents instead of one. According to the panel, the Supreme Court‘s recent decision in Niz-Chavez v. Garland requires this result. In that case, the Supreme Court held that the stop-time rule in
This question is also extraordinarily important. Motions to reopen for lack of notice may be filed “at any time.”
I.
Petitioner Marcelo Eugenio Rodriguez, a native and citizen of Uruguay, became removable from the United States when his conditional permanent resident status was terminated in 2016. Rodriguez v. Garland, 15 F.4th 351, 353 (5th Cir. 2021). Two years later, DHS sent Rodriguez a notice to appear that did not include the time and place of his removal proceeding. Id. This information, however, was provided in a subsequent notice of hearing sent to Rodriguez at his Pasadena, Texas, address. Id.
Rodriguez failed to appear at his removal hearing and was ordered removed in absentia. Id. He filed a motion to reopen his case, arguing that: (1) he did not receive notice of his hearing because he had since moved from his Pasadena address; (2) he had informed the immigration court—as required—of his new address; and (3) the separate and subsequent notice of hearing did not satisfy the notice requirements for removal in absentia.
Noting that the record did not contain a changе-of-address form, the IJ held that Rodriguez failed to show that he did not receive the notice of hearing sent to his Pasadena address. After determining that a subsequent notice of hearing is sufficient notice to preclude reopening of removal proceedings, the IJ denied Rodriguez‘s requested relief. The BIA agreed, and Rodriguez filed a petition for review.
After briefing in this court had concluded, the Supreme Court issued its decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). Relying on the fact that “notice to appear” is preceded by the article “a” in both
Applying Niz-Chavez, the panel opinion declined the government‘s invitation to either address or remand for clarification of whether Rodriguez updated his address and was therefore entitled to notice at all. Instead, the panel leapfrogged over this threshold issue and landed straight onto an unbriefed and unargued question of first impression: Whether an alien is entitled to reopen his in absentia removal order and apply for rescission of removal when he receives notice of his removal proceedings in two documents instead of one.2 Absent briefing on Niz-Chavez and without the
A few months later, the BIA disagreed with the panel opinion in a precedential decision, Matter of Laparra, 28 I. & N. Dec. 425 (BIA 2022). After surveying the statutory text, context, and history, the BIA distinguished Niz-Chavez on three grounds. First, it recognized that
II.
This case is not about when immigration proceedings start, but we must begin there nonetheless. Title
Since the Illegal Immigration Reform and Immigrant Responsibility Act was enacted in 1996 and until the Court‘s decision in Niz-Chavez, most aliens received notice of their immigration proceedings in two stages.4 First, the government (now specifically DHS) would send the alien a notice to appear. This notice to appear would generally include all of the information described by
Under our still-applicable precedents, which the panel opinion does not disturb, the receipt of this notice to appear vests the immigration court with jurisdiction over the alien‘s case. E.g., Pierre-Paul v. Barr, 930 F.3d 684, 690 (5th Cir. 2019). As this court has explained, “the regulations . . . govern what a notice to appear must contain to constitute a valid charging document,” and under the regulations a notice to appear must only include the time and place of removal proceedings “where practicable.” Id. at 688–90, 693; see also 8 C.F.R. §§ 1003.14, 1003.15, 1003.18, 1003.26. Accordingly, a notice to appear has never been required—either by regulation or our case law—to include all of the information described by
After removal proceedings are initiated, a provision of IIRIRA allows the Attorney General to cancel removal proceedings under certain circumstances. Under one of them, the Attorney General may cancel the removal of aliens who have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the datе of such application.”
In Niz-Chavez, the Supreme Court held that the stop-time rule is not triggered until the alien receives all of the information described in
“[C]ancellation and reopening of removal are two entirely different proceedings under immigration law[.]” Mauricio-Benitez v. Sessions, 908 F.3d 144, 148 n.1 (5th Cir. 2018). Cancellation of removal terminates ongoing proceedings. Reopening of removal restarts proceedings that have concluded. These two different proceedings use different statutory text to serve different objectives. These textual and contextual differences counsel against a cursory, one-to-one application of Niz-Chavez to this distinct context.
More specifically—and differently—this case is about reopening in absentia orders of removal. An alien may be removed in absentia if he fails to appear at his removal proceeding. Title
Notably, it is undisputed that an alien already may show that he did not actually receive notice of his hearing. This court applies a presumption of receipt to notice sent by mail. E.g., Navarrete-Lopez v. Barr, 919 F.3d 951, 953–54 (5th Cir. 2019). “[T]he focus is whether the alien actually received the required notice and not whether the notice was properly mailed,” and an alien who successfully rebuts the presumption of receipt is entitled to reopen his case and apply for recission of his in absentia order. See id. (quoting Garcia-Nuñez v. Sessions, 882 F.3d 499, 506 (5th Cir. 2018));
Against this backdrop, it would seem odd to conclude that an alien, despite knowing about his removal proceеding and consciously failing to appear, is eligible for reopening and rescission of his removal order simply because he received notice of his hearing in two documents instead of one. And indeed, there are good reasons to think that he is not.
First, it is not clear that Niz-Chavez compels this result. Niz-Chavez interpreted statutory language unique to that case. Its holding rested evenly on both statutory provisions at issue:
The first, the stop-time rule, requires “a” notice to appear. Id. Thus, “[t]o an ordinary reader—both in 1996 and today—‘a’ notice would seem to suggest just that: ‘a’ single document.” Id. And the second,
The Court‘s interpretive task appeared to end with both provisions as well. The critical question was whether
If IIRIRA had meant to endow the government with the flexibility it supposes, we would have expected the law [i.e., the stop-time rule] to use “notice” in its noncountable sense. A statute like that would have said the stоp-time rule applies after the government provides “notice” (or perhaps “sufficient notice“) of the mandated information—indicating an indifference about whether notice should come all at once or by installment.
Id. at 1481 (alteration added).
This case appears to be the Court‘s counterfactual. The referencing statute here does not use the indefinite article “a,”
Second, and independently, even assuming that Rodriguez did not receive notice “in accordance with paragraph (1),” the subsequent notice of
The BIA recently disagreed with the panel‘s opinion on this basis. After surveying the statutory text, context, and history, it concluded that when an alien receives a notice to appear without the time and place of the proceeding and the consequences for failing to apрear, his subsequent receipt of a notice of hearing with this information satisfies “notice in accordance with paragraph . . . (2)” and precludes reopening and rescission of his removal order. Matter of Laparra, 28 I. & N. Dec. 425, 431–36 (BIA 2022).
The BIA, as well as the government in this case, specifically faulted the panel for failing to even address this possibility. Id. at 436.7 As the BIA has recognized elsewhere,
This interpretation also makes sense of the differences between cancellation of removal and reopening. In the stop-time context, it might make sense to require a single document before terminating the alien‘s period of continuous residence or continuous physical presence.
Finally, we may also owe deference to the BIA‘s decision. This court grants deference to precedential BIA decisions that reasonably interpret ambiguous statutes. E.g., Rodriguez-Avalos v. Holder, 788 F.3d 444, 449 (5th Cir. 2015) (“If we determine that the BIA decision is precedеntial, then we proceed under the Chevron two-part inquiry[.]“) (footnote omitted). To say that the panel opinion is correct is one thing. To say that it is unambiguously correct is another; not even the panel opinion says so. Nat‘l Cable & Telecomms. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 984 (2005) (“[A] court‘s prior interpretation of a statute [may] override an agency‘s interpretation only if the relevant court decision held the statute unambiguous.“).
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The court should have granted rehearing en banc to consider the panel‘s decision more carefully. I respectfully dissent from its refusal to do so.
Under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), and other precedents, courts are often required to defer to Executive Branch interpretations of statutes, rather than exercise our own independent judgment about the meaning of legal texts. This doctrine of deference has been sharply criticized as a violation of our constitutional structure and an abdication of our duty as a separate and independent branch of government. See, e.g., Voices for Int‘l Bus. & Educ., Inc. v. NLRB, 905 F.3d 770, 780–81 (5th Cir. 2018) (Ho, J., concurring) (“[I]t is the consolidation of legislative and judicial power in executive agencies that has caused Chevron to be called into question by various Justices.“) (collecting cases).
But of course, ”Chevron remains binding Supreme Court precedent.” Id. at 780. Moreover, if ever there was a place for deference to the Executive when it comes to interpreting legal texts, it would be here, in the immigration and border security context.
A sovereign isn‘t a sovereign if it can‘t enforce its borders. The power to control the flow of aliens into our country is inherent in our national sovereignty and in the executive power under our Constitution—as the Supreme Court has repeatedly recognized. “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.” Ekiu v. United States, 142 U.S. 651, 659 (1892). “The exclusion of aliens is a fundаmental act of sovereignty.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). And “[t]he right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” Id. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2424 (2018) (Thomas, J.,
So it seems obvious that, if nowhere else, “[p]rinciples of Chevron deference apply when the BIA interprets the immigration laws.” Scialabba v. Cuellar de Osorio, 573 U.S. 41, 56 (2014) (plurality op.). “Indeed, judicial deference to the Executive Branch is especially appropriate in the immigration context, where decisions about a complex statutory scheme often implicate foreign relations.” Id. at 56–57 (cleaned up).
The panel contends that its analysis in this case is dictated by governing statutory text, particularly as that text was recently construed by the Supreme Court in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).
But the BIA has since adopted precisely the opposite reading of those same governing texts. See Matter of Laparra, 28 I. & N. Dec. 425, 431–36 (BIA 2022). As the BIA has explained, “an in absentia order of removal . . . need not be rescinded if a written notice containing the time and place of the hearing was provided either in a notice to appear under [
To be sure, “paragraph (2) [in
I cannot say that the BIA‘s position is unreasonable. To the contrary, if the Supreme Court is going to place such great weight on the word “a,” as it did in Niz-Chavez, who‘s to say that the BIA may not similarly place such great weight on the word “or,” as it has in this context?
The panel did not address the BIA‘s decision in Laparra, or whether that decision is entitled to deference. That‘s because, at the time of the panel‘s decision, the BIA had not yet set forth its views. In fact, the BIA‘s ruling in the instant case occurred even before the Supreme Court‘s decision in Niz-Chavez. Sо the panel ruling in this case obviously would not bind a future panel on the question whether deference to Laparra is required in these contexts.
Nevertheless, if it were up to me, I would remand this case to allow the BIA to address all of these issues in the first instance—including the impact of Laparra as well as Niz-Chavez on these proceedings—consistent with our traditional understanding of national sovereignty and deference to the Executive Branch on matters of border enforcement and the exclusion of aliens. It is for that reason that I dissent from the denial of rehearing en banc.
Notes
Because Rodriguez disputes the government‘s account, it is unclear whether Rodriguez is entitled to notice at all. Nothing in