Ledesma-Sanchez v. Holder , 797 F.3d 131 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1710
JONATHAN HERICAR LEDESMA-SÁNCHEZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Thompson, and Barron,
Circuit Judges.
Lawrence Gatei and Immigration & Business Law Group, LLP on
brief for petitioner.
Joseph D. Hardy, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Joyce R.
Branda, Acting Assistant Attorney General, Civil Division, and
Holly M. Smith, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, on brief for respondent.
August 14, 2015
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch has been substituted for former
Attorney General Eric H. Holder, Jr. as respondent.
BARRON, Circuit Judge. This case concerns the
requirement that an alien facing removal keep immigration
authorities apprised of the alien's current address. Here, the
alien failed to do so, and, on that basis, the Board of Immigration
Appeals (BIA) denied his motion to reopen the removal proceedings,
which were held in absentia. We deny the petition for review.
I.
Jonathan Ledesma-Sánchez was born in the Dominican
Republic and admitted to the United States on a nonimmigrant visa.
He allegedly overstayed that visa. In March of 2010, a federal
official personally served Ledesma with what is known as a Notice
to Appear. That document charged Ledesma with being removable
from the United States for overstaying a nonimmigrant visa. See
8 U.S.C. § 1227(a)(1)(B). And the Notice to Appear ordered Ledesma
to appear before an immigration judge in Boston to adjudicate his
removability, at a date and time to be set.
The Notice to Appear informed Ledesma, as required by
statute, that he was obliged to provide immigration authorities
with his mailing address and telephone number. See id.
§ 1229(a)(1)(F)(i). The notice also explained that Ledesma was
required to update that information whenever his address or phone
number should change. See id. § 1229(a)(1)(F)(ii). And, finally,
the notice informed Ledesma that, if he did not comply with these
requirements, the immigration court would not have to tell him
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about the date and time of his removal hearing once it was set,
and that he might then be ordered removed in absentia. See id.
§§ 1229(a)(2)(B), 1229a(b)(5)(B).
After being served with the Notice to Appear, Ledesma
resided for a time -- as immigration officials were informed1 -- at
an address in the Roxbury neighborhood of Boston, Massachusetts.
But in October of 2010, Ledesma moved to a new address in the
Dorchester neighborhood of Boston without updating his address
with immigration officials.2
In February of 2011, the Department of Homeland Security
filed Ledesma's Notice to Appear with the immigration court in
Boston. The court then scheduled removal proceedings for March 1,
2011. The immigration court sent notice of the hearing to
Ledesma's old address in Roxbury.3 Ledesma claims, and the
1
It is not entirely clear from the record how the government
obtained Ledesma's Roxbury address and thus whether Ledesma
provided it. But neither the Immigration Judge nor the BIA denied
Ledesma relief on the ground that he had failed to provide any
address at any point. Accordingly, as we explain below, we decide
the case solely on the basis of Ledesma's failure to update his
address when he moved from Roxbury to Dorchester.
2 Ledesma does not claim to have continued to use his old
Roxbury physical address as a mailing address after moving away.
See Renaut v. Lynch, ___ F.3d ___, No. 14-1766, 2015 WL 3486688,
at *2 (1st Cir. June 3, 2015).
3 The notice was mailed using zip code 02119, and Ledesma
claims, for the first time on appeal, that the correct zip code
for the Roxbury address is 02121. But the record does not indicate
that the letter was returned as undeliverable. Indeed, Ledesma's
argument to the Immigration Judge and the BIA was that the notice
of hearing was mailed to Ledesma's old Roxbury address.
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government does not dispute, he did not actually receive notice of
the hearing because none was sent to his Dorchester address.
Ledesma did not appear at the hearing. He was ordered removed in
absentia. See id. § 1229a(b)(5).
Over a year later, in August of 2012,4 Ledesma moved to
reopen his removal proceedings. See id. § 1229a(b)(5)(C)(ii). He
argued that he had not received notice of the hearing and that the
proceedings should be reopened on that basis.
The Immigration Judge denied the motion because Ledesma
had failed to inform the immigration authorities of his change of
address when he moved from Roxbury to Dorchester. And the
Immigration Judge found that the consequences of such failure had
been explained to him in his native Spanish language when he was
personally served with the Notice to Appear.5
4 Ledesma claims that he had only then become aware of the in
absentia removal order after his counsel discovered it while
pursuing an adjustment of status for Ledesma.
5 Ledesma, in his brief on appeal as well as his briefing to
the BIA below, at times at least appears to assert that he was not
fully informed of the consequences of failing to provide and update
his address. But even if that is his intended argument, he
provides us with no reason to conclude that the Immigration Judge's
determination to the contrary was clearly erroneous. Ledesma
concedes that he was personally served with the Notice to Appear.
And the official serving the Notice to Appear on Ledesma indicated
on that form that Ledesma was provided with "oral notice in the
Spanish language."
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Ledesma appealed to the BIA, which affirmed the
Immigration Judge's ruling. Ledesma now petitions for review of
the BIA's decision.
II.
An in absentia removal order, like the one that Ledesma
received when he did not appear at his scheduled removal hearing,
may be "rescinded . . . 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." 8 U.S.C. § 1229a(b)(5)(C).6
Ledesma argues that he demonstrated that he did not actually
receive notice that his hearing had been scheduled and, therefore,
that the BIA erred by denying his motion to reopen the proceedings.
But, as the statute makes clear, the key issue is not
whether Ledesma actually was informed of the time and place of the
hearing. The key issue is whether he "receive[d] notice in
accordance with paragraph (1) or (2) of section 1229(a)." Id.
(emphasis added). Only if he did not would he have a ground for
reopening. But Ledesma cannot make that showing.
Ledesma did not inform immigration authorities of his
new address in Dorchester, and the government did provide notice
to the last address that it had for him in Roxbury. Ledesma makes
6 We note that there are other potential bases for reopening
removal hearings provided under the statute that have nothing to
do with nonreceipt of notice, see 8 U.S.C. § 1229a(b)(5)(C), but
Ledesma does not invoke any of them in this appeal.
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no argument -- and we can see no basis for one -- that the statute
could possibly be read to require the government to provide notice
at an alien's new address when the alien has never apprised the
government of it. See id. § 1229(a)(2)(A) (providing that that an
alien must be notified "of any change or postponement in the time
and place of [removal] proceedings"); id. § 1229(a)(2)(B)
(providing that "[i]n the case of an alien not in detention, a
written notice shall not be required under this paragraph if the
alien has failed to provide the address required under paragraph
(1)(F)."). And so Ledesma cannot show that he did not "receive
notice in accordance with paragraph (1) or (2) of section 1229(a)."
Id. § 1229a(b)(5)(C) (emphasis added). See Renaut v. Lynch, ___
F.3d ___, No. 14-1766, 2015 WL 3486688, at *3 (1st Cir. June 3,
2015) ("[A]n alien's case could be reopened if he failed to receive
notice, so long as he complied with the statute's address
requirements."); see also Velásquez-Escovar v. Holder, 768 F.3d
1000, 1004 (9th Cir. 2014); Domínguez v. U.S. Atty. Gen., 284 F.3d
1258, 1260-61 & n.4 (11th Cir. 2002); Mecaj v. Mukasey, 263 F.
App'x 449, 451 (6th Cir. 2008) (unpublished); Jiang v. Gonzales,
239 F. App'x 62, 64 (5th Cir. 2007) (per curiam) (unpublished).
Ledesma does argue that his duty to update his address
"had not yet attached" when he moved to Dorchester in October of
2010. He contends that is the case because the Department of
Homeland Security did not file Ledesma's Notice to Appear with the
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immigration court in Boston -- and thus initiate removal
proceedings against him in that court -- until months later, in
February of 2011. But he cites no authority for the proposition
that the government's lodging of the Notice to Appear with the
immigration court is a precondition to an alien's duty to keep
immigration officials apprised of any updates to his address. And
"issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived. It is not
enough merely to mention a possible argument in the most skeletal
way, leaving the court to do counsel's work, create the ossature
for the argument, and put flesh on its bones." United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (citation omitted).
And we note, in any event, that nothing in the
statute -- or the written notice provided to aliens on the Notice
to Appear form -- indicates there is such a precondition to the
address-updating duty. Indeed, the immigration courts -- whom the
written warnings in the Notice to Appear state should be the
recipient of aliens' required change-of-address forms -- had
published docketing rules at the time relevant to Ledesma's
proceedings indicating that the immigration courts accept change-
of-address forms "even if no Notice to Appear has been filed" with
the immigration court. Office of the Chief Immigration Judge,
U.S. Dep't of Justice, Uniform Docketing System Manual, at II-7,
II-10 (Apr. 2009), https://www.hsdl.org/?view&did=10761.
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We thus hold that Ledesma is not entitled to reopen in
absentia removal proceedings on the basis of not having received
the notice Congress required. And so we deny the petition for
review.
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