Renaut v. Holder, Jr. ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1766
ALAN SOARES RENAUT,
Petitioner,
v.
LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Thompson, and Barron,
Circuit Judges.
William P. Joyce, with whom Joyce & Associates P.C. was
on brief, for petitioner.
Kiley Kane, Senior Litigation Counsel, Office of
Immigration Litigation, United States Department of Justice Civil
Division, with whom Joyce R. Branda, Acting Assistant Attorney
General, and Julie M. Iversen, Senior Litigation Counsel, were on
brief, for respondent.
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as the respondent.
June 3, 2015
THOMPSON, Circuit Judge. Alan Soares Renaut is a
Brazilian citizen who unlawfully entered the United States, was
detained at the Arizona border, failed to attend his deportation
hearing, and was ordered by an immigration judge ("IJ") to be
removed from the country. Renaut, who claims he was never notified
that his removal hearing had been scheduled, asked an IJ to reopen
his case. The IJ declined, and on its appellate review, the Board
of Immigration Appeals ("BIA") affirmed the IJ's denial.
Now on appeal, Renaut argues that the IJ applied the
wrong legal standard in reviewing his motion, and that when its
turn came around, the BIA ignored the IJ's error and engaged in
its own (impermissible) factfinding to affirm.
We agree that the IJ dropped the ball and applied the
wrong legal standard in reviewing Renaut's motion (albeit a
different legal error from the one Renaut identified). The BIA
likewise missed by affirming the IJ based on that incorrect legal
principle. Therefore, we vacate the BIA's decision and remand
Renaut's case to the BIA.
BACKGROUND
The relevant facts are undisputed. Renaut is a native
and citizen of Brazil who entered the United States through the
Arizona-Mexico border in January 2003 without being inspected by
an immigration officer. He was detained upon entry and, while
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detained, personally served with a Notice to Appear before the
Immigration Court in Florence, Arizona, for a to-be-scheduled
removal hearing. The notice charged Renaut with removability,
pursuant to the Immigration and Nationality Act ("the Act"), which
provides that "[a]n alien present in the United States without
being admitted or paroled, or who arrives in the United States at
any time or place other than as designated by the Attorney General,
is inadmissible." 8 U.S.C. § 1182(a)(6)(A)(i). The notice also
warned: "You are required to provide the [government], in writing,
with your full mailing address . . . . You must notify the
Immigration Court immediately by using [a change of address form]
whenever you change your address . . . during the course of this
proceeding."
Renaut was detained for about two months before being
released from a detention facility. On March 3, 2003, he asked
that his case be moved to the Boston Immigration Court. In his
written motion, which was filed on his behalf by a representative,1
Renaut stated that "[h]earing notices and other documents may be
sent to the respondent at . . . 6 Corregidor Rd." in Framingham,
1 We refer to Renaut's counsel as a "representative" because
Renaut now questions whether the person paid to represent him was
actually an attorney.
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Massachusetts. The motion was allowed on March 14, 2003, and
Renaut's case was transferred.
On January 28, 2004, the Boston Immigration Court mailed
a notice to the Corregidor Road address to inform Renaut that he
was scheduled to appear for a removal hearing on March 2, 2004.
According to Renaut, he lived at the Corregidor Road home with a
friend for a few months after his release, but even after moving
out, continued to receive and collect his mail there. The friend's
sworn statement conveyed the same story. The hearing notice was
returned to the court, however, with a stamp on the envelope that
read, "ATTEMPTED, NOT KNOWN."2 Renaut thus did not receive the
hearing notice, and did not appear for the hearing. An immigration
judge in absentia ordered his removal from the United States to
Brazil.
Fast-forward eight years. In February 2012, Renaut
married his now-wife, who is a United States citizen. She filed
a form I-130 Petition for Alien Relative on her hubby's behalf
(U.S. citizens and lawful permanent residents may file this type
of petition to help certain relatives become lawful permanent
residents). On April 9, 2013, Renaut also asked an immigration
2 According to the government (and undisputed by Renaut),
"attempted, not known" means that delivery was attempted, but the
addressee was "not known" at the address.
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judge to reopen the removal proceedings in light of his pending I-
130 petition so that he could ask for adjustment of status to
voluntary departure, arguing that he never received the removal
hearing notice.
On April 30, 2013, the immigration judge denied the
motion to reopen. The IJ found that Renaut was "made aware of his
obligation to immediately notify the Immigration Court when he
changed his address . . . and he failed to do so." The IJ then
found that "although the hearing notice was returned to the Court
as undeliverable, it had been sent to the Respondent at his last
known address," and denied the motion.
Renaut appealed to the BIA, arguing that the IJ "failed
to appreciate the distinction between the regulatory standards
that govern the entering of an in absentia removal order and the
requirements" to reopen one. The BIA nonetheless affirmed the
immigration judge's denial because reopening the case was "not
warranted on account of lack of notice," given that Renaut "evaded
delivery of a properly sent [hearing notice] by relocating without
providing the required change of address."
This appeal followed.
STANDARD OF REVIEW
"In the immigration context, judicial review ordinarily
focuses on the BIA's decision." Jianli Chen v. Holder, 703 F.3d
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17, 21 (1st Cir. 2012). "But where, as here, the BIA adopts
portions of the IJ's findings while adding its own gloss, we review
both the IJ's and the BIA's decisions as a unit." Id. (citation
omitted).
"We review the . . . denial of a motion to reopen for
abuse of discretion." Chen v. Gonzales, 415 F.3d 151, 153 (1st
Cir. 2005) (citation omitted). "The agency's resolution of such
a motion will stand unless that resolution rests on a material
error of law or a manifestly arbitrary exercise of judgment." Meng
Hua Wan v. Holder, 776 F.3d 52, 56 (1st Cir. 2015).
DISCUSSION
As Renaut's Notice to Appear warned, when facing removal
proceedings, an alien must "immediately provide (or have provided)
the Attorney General with a written record of an address . . . at
which the alien may be contacted respecting [removal]
proceedings." 8 U.S.C. § 1229(a)(1)(F)(i). An alien must also
keep his address current by "provid[ing] the Attorney General
immediately with a written record of any change of the alien's
address." Id. § 1229(a)(1)(F)(ii). These address requirements
are important because the Act allows the Immigration Court to serve
notices to appear (and other subsequent notices of scheduling
changes) to an alien "through service by mail." Id. § 1229(a)(1).
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Serious consequences can ensue for an alien who does not
comply with the address reporting requirements. The Act provides
that "[n]o written notice [of a removal hearing] shall be required
. . . if the alien has failed to provide the address required under
section 1229(a)(1)(F)." Id. § 1229a(b)(5)(B). And failing to
appear for a removal hearing means that the presiding immigration
judge must order the alien's removal in absentia, so long as "the
[government] establishes by clear, unequivocal, and convincing
evidence that the written notice was so provided and that the alien
is removable." Id. § 1229a(b)(5)(A). The Act assumes that the
government has met this evidentiary burden if it can show that
notice was sent by regular mail and "there is proof of attempted
delivery to the last address provided by the alien in accordance
with subsection (a)(1)(F)." Id. § 1229(c).
Despite this presumption of effective delivery written
into the statute, the Act does recognize that even if a notice was
properly sent to someone's last-reported address, he still might
not receive it. Upon motion, then, an immigration judge may
rescind an in absentia removal order "if the alien demonstrates
that [he] did not receive notice in accordance with [§ 1229(a)(1)
or (2)]."3 Id. § 1229a(b)(5)(C)(ii). Thus, an alien's case could
3 An immigration judge could also rescind "upon a motion to
reopen filed within 180 days after the date of the order of removal
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be reopened if he failed to receive notice, so long as he complied
with the statute's address requirements. "[W]hen considering a
motion to reopen, the central issue is no longer whether the notice
was properly mailed, as it is for the purpose of initially entering
the in absentia order, but rather whether the alien actually
received the notice." Matter of M-R-A-, 24 I. & N. Dec. 665, 672
(B.I.A. 2008) (citing Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir.
2006)).
Renaut's notice was returned to the Immigration Court,
and thus, the government admits that Renaut did not receive his
notice. Non-receipt does not, however, end the inquiry. The BIA
has said, for instance, that an alien can't hide the ball when it
comes time to appear in court, meaning he "cannot evade delivery
of a properly sent Notice of Hearing by relocating without
providing the required change of address and then request reopening
of in absentia proceedings on the basis of a claim that he did not
receive notice." Matter of M-R-A-, 24 I. & N. Dec. at 675. Here,
the IJ (and then the BIA) relied on this "no evasion" rule to deny
Renaut's motion. In response, Renaut contends that even though he
did not update his address after moving from the Corregidor Road
if the alien demonstrates that the failure to appear was because
of exceptional circumstances," 8 U.S.C. § 1229a(b)(5)(C)(i), but
Renaut has not raised such an argument on appeal.
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address, he was not evading notice because he continued to receive
mail there after moving out.
The IJ did not address this assertion, but denied
Renaut's motion on the ground that he did not comply with his
obligation to notify the Immigration Court when he "changed his
address," and that "although the hearing notice was returned to
the Court as undeliverable, it had been sent to the Respondent at
his last known address." The BIA took a similar tack and assumed
(without deciding) that Renaut was telling the truth when he said
"his friend continued to reside on Corregidor Road and was able to
receive mail for him." Even still, the BIA decided, Renaut's case
could not be reopened because his Notice to Appear "properly
advised the respondent that he was required [to provide] 'your
full mailing address' (as opposed to the mailing address of a
friend)," and because Renaut did not provide his residential
address, he evaded notice.
According to both the IJ and BIA, then, Renaut could not
have his case reopened because he never bothered to provide the
government with his new residential address after he physically
moved from the Corregidor Road home. Relocating without providing
an updated residential address -- even if a valid mailing address
is still on file -- categorically amounts to evasion of a hearing
notice, the IJ and BIA assumed.
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We conclude that the IJ and BIA abused their discretion
in so deciding, and that a remand is the appropriate relief to
cure the error. While evasion is certainly a legitimate reason to
deny a motion to reopen, "evasion" by its nature entails some
wrongdoing, i.e., some effort to actually avoid the notice. See
Sanchez v. Holder, 627 F.3d 226, 233 (6th Cir. 2010)
("[P]roceedings will not be reopened if the alien fails to receive
a hearing notice because the alien's own conduct made him or her
unreachable."). Particularly concerning is that the BIA does not
offer any authority to support its generally-applicable contention
that Renaut was required to provide a residential address (as
opposed to a valid mailing address), such that he has committed
some lawlessness by his mere failure to provide a residential
address.
It is also not apparent to us why the BIA (and the
government in its briefing) assume "address" means residential
address. Renaut's Notice to Appear informed him that he was
"required to provide . . . your full mailing address," and that he
would have to "notify the Immigration Court immediately by using
[a change of address form] whenever you change your address . . .
during the course of this proceeding." (Emphasis added). The
notice mentions nothing of a residential or physical address
requirement. Likewise, the Act makes no indication that a physical
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address is required. See 8 U.S.C. § 1229(a)(1)(F)(i) (requiring
alien to provide an address where he "may be contacted respecting
[removal] proceedings"); id. § 1229(a)(1)(F)(ii) (requiring alien
to "provide . . . a written record of any change of the alien's
address"). We are aware of no BIA precedent explaining that
"address" is defined as a residential one in this context. The
government even admitted at oral argument that an alien could be
permitted to provide, for instance, a post office box number where
he could be contacted. Thus, we simply do not see the basis for
the BIA's brusque conclusion that Renaut "evaded" his hearing
notice merely because he asked that his removal communications be
sent to what he claims was a valid mailing address, as opposed to
his (ever-changing) abode. See also Arrieta v. I.N.S., 117 F.3d
429, 432 (9th Cir. 1997) (per curiam) (stating that the BIA erred
by requiring petitioner to provide a residential address, even
though she provided a valid mailing address); Mecaj v. Mukasey,
263 F. App'x 449, 451 (6th Cir. 2008) (unpublished) (concluding
that petitioner "may present evidence that he normally would
receive correspondence at that location, yet did not receive
notice"); Gomez-Palacios v. Holder, 560 F.3d 354, 361 (5th Cir.
2009) (finding that petitioner was not entitled to rescission
because "his failure to receive actual notice of the time of his
postponed hearing was the result of not complying with his
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obligation to keep the immigration court apprised of his current
mailing address" (emphasis added)).
Along similar lines, we likewise reject the government's
reading of § 1229a(5)(B). The Act provides that "[n]o written
notice shall be required [to remove an alien in absentia] if the
alien has failed to provide the address required under section
1229(a)(1)(F) of this title." 8 U.S.C. § 1229a(5)(B). The
government assumes this provision of the statute means that an
alien is not entitled to notice at all if he changes his
residential address without informing the Immigration Court.
Under the government's reading, then, an alien in
Renaut's situation is outright precluded from arguing that his
removal proceeding should be reopened for failure to receive notice
because his physical relocation meant that he was no longer
entitled to notice of the removal hearing at all. But, as we have
explained, it is not at all clear that an alien fails to comply
with the address requirement when he changes residence. And in
any event, the statute still instructs the government to send
notice to the alien's last known address, whatever that address
may be. See 8 U.S.C. § 1229(c); accord Mecaj, 263 F. App'x at 451
("[B]ecause [the alien] did provide an address, the government
remained under an obligation to send notice to that address."
(emphasis in original)). Thus, the mere fact that an alien has
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changed his residential address neither categorically precludes
that alien from moving to reopen his removal proceeding nor, once
he does so, automatically compels a finding that he evaded notice.
As we indicated above, evasion of a hearing notice is a
perfectly legitimate reason to deny a motion to reopen. But
whether Renaut "evaded" his notice is a factual determination that
must be made upon an evidentiary evaluation. See Matter of M-R-
A-, 24 I. & N. Dec. at 674 (holding that "all relevant evidence
submitted to overcome the . . . presumption of delivery must be
considered"). Problematic here is that the IJ did not make
sufficient factual findings that would allow us to affirm an
evasion finding. Namely, Renaut provided evidence to show that he
was still successfully receiving other mail at the Corregidor Road
address, even after he moved out. Tellingly, and as the government
conceded at argument, Renaut's actual removal order was sent to
the Corregidor Road address and did not get bounced back, which
suggests that Renaut was being truthful when he said that he could
still receive immigration-related mail there. No mention of this
evidence, or Renaut's other justifications for non-receipt, are
mentioned in the IJ's factual findings. And while the BIA
acknowledged Renaut's argument that his friend was able to receive
mail for him at the Corregidor Road address, neither the IJ nor
BIA made factual findings that resolved whether or not this
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assertion was true.4 We therefore cannot meaningfully review the
validity of Renaut's motion. See Rotinsulu v. Mukasey, 515 F.3d
68, 73 n.1 (1st Cir. 2008) ("Typically, we have found the absence
of specific findings problematic in cases in which such a void
hampers our ability meaningfully to review the issues raised on
judicial review."). This case is thus distinguishable from the
cases the government relied on in its brief, where the petitioners
did not receive their notices, which were sent to their last-known
addresses, because they failed to update their addresses. Shia v.
Holder, 561 F.3d 19, 20-21 (1st Cir. 2009) (per curiam); Shah v.
Mukasey, 533 F.3d 25, 28 (1st Cir. 2008). As we have discussed,
the IJ and BIA made no such finding in the instant case.
4 Indeed, the BIA could not have -- it generally is not
permitted to make factual findings on appellate review. In Re
Adamiak, 23 I. & N. Dec. 878, 880 (B.I.A. 2006) (citing 8 C.F.R.
§ 1003.1(d)(3)(iv)).
Relatedly, we already mentioned that Renaut's primary briefed
argument concerning the BIA was that the BIA engaged in
impermissible factfinding to conclude that he, as a factual matter,
evaded delivery of the notice. But as far as we can tell, Renaut
did not first raise the claim of impermissible factfinding to the
BIA in a motion to reconsider, and so we do not have jurisdiction
to consider that claim. See Meng Hua Wan v. Holder, 776 F.3d 52,
57 (1st Cir. 2015) (holding that "we lack jurisdiction to hear and
determine the petitioner's claim that the BIA engaged in
impermissible factfinding" because that claim was "directed to the
BIA's actions rather than to anything that happened before the
IJ," and so first needed to be exhausted with the BIA). However,
because we read the BIA's decision as adopting and affirming the
IJ's material errors of law, as opposed to "giv[ing] rise to a new
issue," id., we do not consider Meng Hua Wan a barrier to reviewing
Renaut's appeal.
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We recognize that both Renaut and the government might
interpret the IJ and BIA decisions differently from the way we do.
Recall that Renaut argued in his opening brief that the IJ applied
the standard for a removal order (which focuses on whether a
hearing notice was properly sent), as opposed to the standard of
a rescission order (which rides on whether the hearing notice was
received). Thus, Renaut claimed, the IJ never decided one way or
another whether Renaut evaded his hearing notice. Renaut then
urged that the BIA failed to recognize the IJ's error, and instead
engaged in its own factfinding to conclude that Renaut evaded his
hearing notice. Renaut changed course at oral argument, however,
where his counsel additionally argued that the BIA erred in
applying a blanket rule that anyone who does not provide an updated
residential address has evaded notice.
In the government's brief, it acknowledged that Renaut
was penalized for failing to update his residential address, but
argued that such a rule was proper under the language of the
statute. At argument, though, the government also threw us a
curveball, claiming there that the BIA's decision did not impose
a categorical ban on motions to reopen when aliens provide only a
valid mailing address. In fact, the government actually
acknowledged that some aliens do not have a stable home address,
so providing a friend's address or a post office box would be
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appropriate in those situations. The problem with the instant
case, the government argued, was that Renaut gave no explanation
as to why he wanted his mail to go to Corregidor Road instead of
his residential address, even after his friend moved. And that
failure to explain amounted to evasion of his hearing notice, as
a matter of fact, according to the government.
As our discussion shows, we read the IJ and BIA decisions
as concluding that as a legal matter, Renaut "evaded delivery of
a properly sent" hearing notice simply because he failed to update
his physical address, and that because of his evasion, he was not
entitled to reopening. We believe this is the most sensible
reading of the two decisions in concert, given that neither made
factual findings that would allow for the conclusion that Renaut
evaded his notice as a matter of fact. See Kurzon v. U.S. Postal
Serv., 539 F.2d 788, 792 (1st Cir. 1976) ("'[W]e must look to (the
agency's) opinion, not to the arguments of its counsel, for the
underpinnings of its order.'" (quoting FTC v. Sperry & Hutchinson
Co., 405 U.S. 233, 246 (1972))). To the extent we have
misconstrued its intended holding, the BIA has the chance to
clarify the basis of its decision on remand.
Finally, the government also argues that even if Renaut
did not have to provide his physical address, there was another
reason to deny his motion -- the fact that he sat on the bench for
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the near-decade that followed the entering of his removal, never
bothering to follow up with the Immigration Court on when his
hearing might be scheduled. Sure, in the portion of the decision
addressing whether exceptional circumstances warranted reopening,
the IJ did make factual findings that Renaut "failed to make
diligent efforts to follow up regarding his removal proceedings,"
and that the record lacked evidence that Renaut took any steps to
"follow up on his case during the more than ten years after his
Motion to Change Venue to Boston was granted on March 14, 2003."
But the BIA did not address that issue, and so we won't either.
See Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004) ("[W]here
the BIA's decision adopts portions of the IJ's opinion, we review
those portions of the IJ's opinion that the BIA has adopted.").
Specifically, while the BIA "ultimately conclude[d] that the
Immigration Judge properly declined to reopen" based on
exceptional circumstances, the BIA did not directly address the
diligence issue, or state whether it agreed with or intended to
adopt the IJ's factual findings in that regard. Particularly in
light of our reservations as to whether the IJ considered all the
evidence Renaut offered up to show that he complied with the
address requirements, and the lack of factual findings as to
whether or not he evaded his hearing notice, we still deem the
appropriate course of action here a remand, which will at least
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allow the BIA to clarify. See Kurzon, 539 F.2d at 792-93 (noting
that while "we will accept less than ideal clarity in
administrative findings," "we ought not to have to speculate as to
the basis for an administrative agency's conclusion" (citations
and quotations omitted)).
For these reasons, we vacate the order of the BIA and
remand the case for further proceedings consistent with this
opinion.
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