USCA11 Case: 22-10779 Document: 25-1 Date Filed: 04/14/2023 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10779
Non-Argument Calendar
____________________
ANDRE DELICEANO MILLER,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A 076-475-973
____________________
USCA11 Case: 22-10779 Document: 25-1 Date Filed: 04/14/2023 Page: 2 of 10
2 Opinion of the Court 22-10779
Before JORDAN, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Andre Miller petitions for review of an order from the Board
of Immigration Appeals affirming the denial of his motion to
rescind his in absentia order of removal and reopen his
immigration proceedings. He argues that the Board abused its
discretion when it determined that he received proper notice. His
first notice-defect argument is that his notice did not include all the
consequences of failing to appear under 8 U.S.C. § 1229a(b)(5). His
second notice-defect argument is that his initial notice to appear
did not specify the date and time of his hearing. After careful
consideration, we deny his petition.
I.
Miller is a native and citizen of the Bahamas who entered
the United States on a six-month tourist visa in September 2004.
Miller overstayed that visa and remained in the United States for
another eight years. At that point, the Department of Homeland
Security served him with a notice to appear charging that he was
removable pursuant to
8 U.S.C. § 1227(a)(1)(B). The notice
ordered Miller to appear before an Immigration Judge at a date and
time to be set in the future and warned him of the consequences
for failing to appear at his hearing. Specifically, it warned Miller
that if he “fail[ed] to attend the hearing at the time and place
designated on this notice, or any date and time later directed by the
Immigration Court,” then “a removal order may be made by the
USCA11 Case: 22-10779 Document: 25-1 Date Filed: 04/14/2023 Page: 3 of 10
22-10779 Opinion of the Court 3
immigration judge in [his] absence,” and he could “be arrested and
detained by the [Department of Homeland Security].”
Miller received a second notice setting his hearing for May
6, 2013 in Atlanta, Georgia. He was again warned that failure to
appear at the hearing could result in an order of removal. On
Miller’s motion, the hearing was rescheduled and first moved to
New York, and then to Florida. Eventually—in July 2014—Miller
attended a master hearing and conceded to removability. The
Immigration Judge personally served Miller with notice that his
next hearing would be January 20, 2015, and warned him yet again
that failure to appear could result in an in absentia removal.
In October 2014, Miller’s counsel moved to withdraw from
the proceedings “because of [Miller’s] persistent failure to fulfill his
obligations.” In doing so, his counsel stated that he informed Miller
of his January 2015 hearing, delivered a copy of the notice of
hearing to him by first class mail, and “exhorted him to read this
Court’s Notice of Hearing reminding him that if he does not appear
in Court for her [sic] next hearing he may be ordered removed
from the United States.” The Immigration Judge granted the
motion to withdraw.
Despite the repeated warnings, Miller did not attend his
January 2015 hearing. Because he had already conceded
removability and was personally served with notice, Miller was
ordered removed to the Bahamas in absentia. Four more years
passed before Miller was detained by the Department of Homeland
Security for execution of the removal order.
USCA11 Case: 22-10779 Document: 25-1 Date Filed: 04/14/2023 Page: 4 of 10
4 Opinion of the Court 22-10779
Upon his detention, Miller filed an emergency motion to
rescind the in absentia removal order and reopen his removal
proceedings under 8 U.S.C. § 1229a(b)(5)(C)(ii). He argued that the
notices that he received were deficient under
8 U.S.C.
§ 1229(a)(1)(G)(ii) and 1229(a)(2)(A)(ii). Under those provisions,
the notices he received were required to specify the “consequences
under section 1229a(b)(5) of this title of the failure, except under
exceptional circumstances, to appear.” Miller argued that the
notices specified some, but not all, of those consequences.
Specifically, Miller contended that the notices were required to
notify him of the provisions of § 1229a(b)(5) concerning rescission
and judicial review.
After an Immigration Judge denied the motion, the Board of
Immigration Appeals dismissed his appeal. In a supplemental brief
to the Board following the Supreme Court’s decision in Niz-
Chavez v. Garland,
141 S. Ct. 1474 (2021), Miller added a new
argument: that his initial notice to appear was deficient for the
failure to specify the time and place of his proceedings. The Board
rejected both arguments. It rejected Miller’s first notice-defect
argument because the Board has long held that notice of the
possibility of removal in absentia was sufficient. And it rejected his
time-and-place argument because that defect was cured by the
subsequent notice Miller received, which did specify the time and
place of his hearing.
Miller now petitions for review of the Board’s decision to
this Court, and we deny the petition.
USCA11 Case: 22-10779 Document: 25-1 Date Filed: 04/14/2023 Page: 5 of 10
22-10779 Opinion of the Court 5
II.
The Board’s decision does not adopt the reasoning of the
immigration judge, so we review only the Board’s reasoning.
Dacostagomez-Aguilar v. U.S. Att’y Gen.,
40 F.4th 1312, 1315 (11th
Cir. 2022). “We review the Board’s denial of a motion to reopen
for an abuse of discretion, but review any underlying legal
conclusions de novo.”
Id. An abuse of discretion occurs when the
Board misapplies the law. Ferreira v. U.S. Att’y Gen.,
714 F.3d
1240, 1243 (11th Cir. 2013).
III.
A.
We start with Miller’s first notice-defect claim—that he was
not informed of all the consequences of failure to appear. “The
fundamental principle governing any exercise in statutory
construction is that we begin where all such inquiries must begin:
with the language of the statute itself.” United States v. Chinchilla,
987 F.3d 1303, 1308 (11th Cir. 2021) (quotations omitted)
(alteration adopted). So we begin with an overview of the relevant
statutory provisions.
Under § 1229—governing initiation of removal
proceedings—a notice to appear must specify the “consequences
under section 1229a(b)(5) of this title of the failure, except under
exceptional circumstances, to appear.”
8 U.S.C. § 1229(a)(1)(G)(ii);
id. § 1229(a)(2)(A)(ii). Section 1229a(b)(5), in turn, is entitled
“Consequences of failure to appear.” Id. § 1229a(b)(5). It has five
USCA11 Case: 22-10779 Document: 25-1 Date Filed: 04/14/2023 Page: 6 of 10
6 Opinion of the Court 22-10779
subsections—A through E. Subsection A, entitled “In General,”
provides that any noncitizen receiving notice in accordance with
the statute who does not appear at a hearing will be ordered
removed in absentia if the government establishes by clear,
unequivocal, and convincing evidence that the noncitizen is
removable. Id. § 1229a(b)(5)(A). Miller concedes that his notices
warned him of this possibility.
The remaining subsections concern subsection A’s
applicability and the options available for seeking to undo or
challenge an in absentia removal order. Subsection B provides that
written notice of the hearing is not required if the noncitizen fails
to provide an address. Id. § 1229a(b)(5)(B). Subsection C says that
an in absentia removal order may be rescinded only if the
noncitizen can demonstrate that the failure to appear was because
of exceptional circumstances or that notice was not received in
accordance with the statute. Id. § 1229a(b)(5)(C). Subsection D
allows for judicial review of the grounds upon which an in absentia
removal order is entered: the validity of the notice received, the
reason the noncitizen did not attend the proceeding, and whether
the noncitizen is removable. Id. § 1229a(b)(5)(D). Finally,
subsection E clarifies that the in absentia removal provisions apply
to all noncitizens, including those who remain in contiguous
foreign territory under
8 U.S.C. § 1225(b)(2)(C).
The term “consequences” is undefined in the statute, so “we
look to the plain and ordinary meaning of the statutory language
as it was understood at the time the law was enacted.” Chinchilla,
USCA11 Case: 22-10779 Document: 25-1 Date Filed: 04/14/2023 Page: 7 of 10
22-10779 Opinion of the Court 7
987 F.3d at 1308. A “consequence” is “a natural or necessary
result.” Webster’s Third New International Dictionary 482–83
(1993); see also Consequence, Black’s Law Dictionary 306 (6th ed.
1990) (defining “consequence” as the “result following in natural
sequence from an event which is adapted to produce, or to aid in
producing, such result”). Miller says that the rescission and judicial
review provisions found in subsections C and D—which were not
specified in the notices that he had received—are consequences of
his failure to appear. Therefore, we ask whether the provisions of
§ 1229a(b)(5) relating the rescission of an in absentia removal order
and judicial review of such order are the natural and necessary
result from the failure to appear.
They are not. If a noncitizen fails to appear at a hearing, the
natural and necessary result is that an in absentia removal order
will be entered if the government meets its burden that written
notice was provided and that the noncitizen is removable. 8 U.S.C.
§ 1229a(b)(5)(A). The notices Miller received adequately and
repeatedly warned him of this possibility. The rescission and
judicial review provisions, on the other hand, describe how and
under which circumstances the consequences of the failure to
appear can be undone—which does not naturally and necessarily
result from the failure to appear.
USCA11 Case: 22-10779 Document: 25-1 Date Filed: 04/14/2023 Page: 8 of 10
8 Opinion of the Court 22-10779
Miller does not cite to a single published decision—in any
circuit—that has adopted his reading of the statute. 1 Miller
primarily attempts to recharacterize the recission and review
provisions as stripping noncitizens of their appellate rights. For
example, Miller argues that a noncitizen ordered removed in
absentia who later becomes eligible for adjustment of status is
barred from moving to reopen the removal proceeding because
under § 1229a(b)(5)(C) an in absentia removal order may be
rescinded “only” upon a motion alleging that the failure to appear
was due to exceptional circumstances or lack of adequate notice.
Miller’s characterization of these provisions misses the mark. The
rescission and judicial review provisions stem from being ordered
removed in absentia, not from the failure to appear itself.
Miller next argues that the phrase “consequences under
section 1229a(b)(5)” must include more than just the consequences
under § 1229a(b)(5)(A). Otherwise, he argues, Congress would
have more narrowly said “consequences under section
1229a(b)(5)(A).” But there is no reason to conclude that all the
consequences under § 1229a(b)(5) could not be found in a single
subsection. Indeed, there is no dispute that at least some
subsections of § 1229a(b)(5)—subsections B and E—are not
consequences that a noncitizen must be informed of. See 8 U.S.C.
1 In an unpublished decision, we have already once rejected the same
argument Miller advances today. Lopez-Garcia v. U.S. Att’y Gen., No. 20-
14380,
2021 WL 5414911, at *3 (11th Cir. Nov. 19, 2021).
USCA11 Case: 22-10779 Document: 25-1 Date Filed: 04/14/2023 Page: 9 of 10
22-10779 Opinion of the Court 9
§ 1229a(b)(5)(B), (E). We will not strain the statute to conclude that
subsections that do not contain consequences of the failure to
appear in fact do based only upon Congress’s choice to broadly
reference to § 1229a(b)(5).
Miller moves next to the section’s headers. Section
1229a(b)(5) is titled: “Consequences of failure to appear.” He
argues that the use of the plural form consequences suggests a
reading of the statute that requires warning of more than only the
possibility of in absentia removal. And subsection E is titled “Effect
on judicial review.” 8 U.S.C. § 1229a(b)(5)(E). Miller argues that
because consequence is sometimes used synonymously with effect,
the judicial review provision must be a consequence of the failure
to appear.
While it is true that the “title of a statute or section can aid
in resolving an ambiguity in the legislation’s text,” the title “cannot
undo or limit that which the text makes plain.” Auriga Polymers
Inc. v. PMCM2, LLC,
40 F.4th 1273, 1286 (11th Cir. 2022)
(quotations omitted); see also United States v. Smith,
967 F.3d
1196, 1211–12 (11th Cir. 2020). Because the plain meaning of
consequences is clear—and does not include the rescission and
judicial review provisions—we do not resort to the section’s title
to manufacture ambiguity.
We therefore conclude that the plain language of the statute
requires the noncitizen to be warned of only the possibility of in
absentia removal. The notices Miller received repeatedly notified
USCA11 Case: 22-10779 Document: 25-1 Date Filed: 04/14/2023 Page: 10 of 10
10 Opinion of the Court 22-10779
him of that consequence if he failed to appear at his hearing. We
accordingly deny the petition for review on this ground.
B.
We also deny Miller’s second deficient-notice claim—that
the initial notice he received did not state the date and time of his
hearing. Miller concedes that this argument is foreclosed by our
precedent in Dacostagomez-Aguilar v. U.S. Attorney General,
40
F.4th 1312, 1314 (11th Cir. 2022). And we adhere to our past
decisions unless a prior panel’s decision has been overruled or
abrogated by the Supreme Court or by us sitting en banc. United
States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008).
* * *
The petition for review is DENIED.
