Sang Jeon v. William Barr, U. S. Atty Gen ( 2019 )

Case: 18-60429 Document: 00515193739 Page: 1 Date Filed: 11/08/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-60429 FILED
November 8, 2019
Lyle W. Cayce
SANG HUI JEON, Clerk
Petitioner,
v.
WILLIAM P. BARR, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of the Order of the
Board of Immigration Appeals
BIA No. A029 943 276
Before ELROD, WILLETT, and OLDHAM, Circuit Judges.
PER CURIAM:*
Each year, tens of thousands of undocumented immigrants are released
on their own recognizance. Many attend their immigration court hearings. Ms.
Jeon did not, and the Government issued a deportation order in her absence.
She petitions, for the second time, for review of an order by the Board of
Immigration Appeals (“BIA”) refusing to reopen her deportation proceedings.
For the second time, we deny relief.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-60429 Document: 00515193739 Page: 2 Date Filed: 11/08/2019
No. 18-60429
I.
In Jeon v. Holder (“Jeon I”), 354 F. App’x 50 (5th Cir. 2009), we
summarized the circumstances leading up to Ms. Jeon’s first motion to reopen:
Jeon is a native and citizen of South Korea. On October 20,
1990, Immigration and Naturalization Service (“INS”) agents
arrested Jeon at the El Paso International Airport because she
entered the United States without inspection. Jeon was personally
served with an “Order to Show Cause, Notice of Hearing, and
Warrant for Arrest of Alien” (“OSC”) ordering Jeon to appear for a
hearing before an immigration judge “at a time and date to be set
later.” The OSC listed the address Jeon provided—that of a
relative in New Jersey—and advised Jeon that “[f]ailure to attend
the hearing at the time and place designated hereon may result in
a determination being made by the Immigration Judge in your
absence.” Jeon was thereafter released on her own recognizance.
On November 13, 1990, the Office of the Immigration Judge
sent a Notice of Master Calendar Hearing (“notice”) via ordinary
mail to Jeon at the New Jersey address she provided. Jeon did not
appear at the hearing and a deportation order was entered against
her in absentia. On December 5, 1990, the Office of the
immigration judge also sent a copy of the deportation order via
ordinary mail to Jeon at the New Jersey address. The record
indicates that INS correspondence sent to the New Jersey address
via certified mail on January 31, 1991 was returned undeliverable.
Id. at 52.
In Jeon I, Ms. Jeon revealed that she remained at the New Jersey
address “for only one week after her release in El Paso, [and] thereafter moved
to New York.” Id. But she claimed that the deportation hearing and order
notices never reached her or the New Jersey address, and requested that the
BIA reopen the proceedings. The BIA declined. Id. We dismissed her previous
BIA appeal because she failed to offer evidence of non-receipt. Id. at 53.
After we decided Jeon I, Ms. Jeon hired a new lawyer, blamed the
previous one for the deficiencies in her original motion, and filed a second
motion to reopen. This time, she included affidavits from her aunt and her
cousin. They show, Ms. Jeon asserts, that the hearing notice and deportation
2
Case: 18-60429 Document: 00515193739 Page: 3 Date Filed: 11/08/2019
No. 18-60429
order were never sent to the New Jersey address. And, according to Ms. Jeon,
this means that there was no “reasonable cause” to order her removed in
absentia. See 8 U.S.C. § 1252(b) (1988). The BIA rejected this reading of the
evidence and statute, finding that her failure to notify the government of her
change of address undercut her lack-of-notice argument.
II.
First, the standard of review. Typically, we review the BIA’s legal
conclusions de novo, Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir.
2012), and findings of fact for substantial evidence, Sharma v. Holder, 729 F.3d
407, 411 (5th Cir. 2013).
When it comes to BIA denials of a motion to reopen, however, we apply
a “highly deferential abuse-of-discretion-standard, regardless of the basis of
the alien’s request for relief.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th
Cir. 2009). Under this standard, we “must affirm the BIA’s decision as long as
it is not capricious, without foundation in the evidence, or otherwise so
irrational that it is arbitrary rather than the result of any perceptible rational
approach.” Id.A.
Back to the merits. The pre-1992 version of 8 U.S.C. § 1252 governed Ms.
Jeon’s deportation hearing. See Jeon I, 354 F. App’x at 52; In re Umesh Patel,
2005 WL 1104181, at *1 (B.I.A. Mar. 18, 2005). That section “provide[d] that a
deportation hearing may be conducted in absentia if an ‘alien has been given a
reasonable opportunity to be present’ and ‘without reasonable cause fails or
refuses to attend.’ ” Jeon I, 354 F. App’x at 52 (quoting 8 U.S.C. § 1252(b)).
In some circumstances, an alien may show “reasonable cause” for her
non-attendance by providing evidence that she never received notice of the
deportation hearing. Id. at 53 (citing Maknojiya v. Gonzales, 432 F.3d 588, 590
(5th Cir. 2005) (per curiam)). In that vein, Ms. Jeon contends that her new
3
Case: 18-60429 Document: 00515193739 Page: 4 Date Filed: 11/08/2019
No. 18-60429
affidavits suffice to excuse her failure to attend her deportation hearing. They
do not.
In Maknojiya, the petitioner also missed his deportation hearing. He had
provided his current address to the government but argued (and provided
affidavits to show) that he never received a hearing notice at that address. 432
F.3d at 589. We agreed that he had shown the notice never reached him or his
counsel, and remanded to the BIA. Id. at 590. 1
Ms. Jeon’s case, however, does not involve a petitioner who waited for a
letter that never came. When apprehended, Ms. Jeon admitted to entering the
United States without inspection, and was charged with a violation of the
Immigration and Nationality Act. Instead of placing her in detention, the
government allowed Ms. Jeon to remain free in the United States. The only
thing the Government required in exchange was that she provide a valid
address for receiving notices, and update that address within ten days if she
moved. See 8 U.S.C. § 1305. 2 Although Ms. Jeon enjoyed the benefit of this
bargain—nearly twenty years in the country despite entering unlawfully—she
did not uphold her end of it. In less than a week, she moved. But, in violation
of § 1305, she did not notify the government. This was not some technical
violation of the § 1305 ten-day requirement. According to Ms. Jeon, the first
1 The deportation proceedings in Maknojiya were governed by 8 U.S.C. § 1229a, not
§ 1252, as here. 432 F.3d at 589. Section 1229a permits reopening “if the alien demonstrates
that the alien did not receive notice.” 8 U.S.C. § 1229a(b)(5)(C)(ii); Maknojiya, 432 F.3d at
589. Neither party has explained why the reasoning in a § 1229a case should be applied in
one that is governed by § 1252. But even if it should, we are not persuaded that Maknojiya
assists Ms. Jeon for the reasons below.
2Ms. Jeon argues that “she never received notice by anyone regarding her duty to
report address change[s].” But she offers no binding authority for the proposition that the
statutory duty arose only once she became aware of it. Cf. Romero-Ramirez v. Barr, 766 F.
App’x 168, 173 (5th Cir. 2019) (“This circuit has never held that, under former § 1252(b), an
OSC is required to advise an alien of his obligation to keep the government informed of his
current address . . . . [I]n the Fifth Circuit, under former § 1252(b), the alien has the sole
responsibility to keep the government informed of his current address.”).
4
Case: 18-60429 Document: 00515193739 Page: 5 Date Filed: 11/08/2019
No. 18-60429
time she updated her address was in August 2000, nearly ten years after she
moved.
As the BIA correctly observed, when Ms. Jeon violated her § 1305
statutory duty, she forfeited her argument regarding the sufficiency of the
government’s notice. See United States v. Estrada-Trochez, 66 F.3d 733, 736
(5th Cir. 1995) (“Although the INS is certainly to blame for its abysmal
handling of [Appellant’s] deportation, the ultimate fault lies with the Appellant
for his failure to comply with [§ 1305,] a law that is essential to the
administration of the INS.”); see also Perez-Perez v. Holder, 485 F. App’x 11, 12
(5th Cir. 2012) (denying petition to review BIA refusal to reopen because
Petitioner, who had received an OSC, violated “his obligation to ensure that
the Immigration Court was aware of an address where he could be contacted”).
The BIA did not err in rejecting Ms. Jeon’s lack-of-notice argument.
B.
Even if we agreed with Ms. Jeon that she had offered sufficient evidence
under Maknojiya to show non-receipt, we would not resolve this case
differently. An alien suffers no prejudice from deficient notice if, by virtue of
her unannounced change of address, she would not have attended the hearing
anyway. See Estrada-Trochez, 66 F.3d at 736; see Gomez-Palacios, 560 F.3d at
360 (“This court has repeatedly held . . . that an alien’s failure to receive actual
notice of a removal hearing due to his neglect of his obligation to keep the
immigration court apprised of his current mailing address does not mean that
the alien did not receive notice . . . .” (quotations omitted)).
On that point, the evidence Ms. Jeon offers—affidavits from her aunt
and cousin in New Jersey—does little to help her. Ms. Jeon’s aunt, who lived
at the New Jersey address throughout 1990, is unequivocal: “Even if I received
. . . a hearing notice, there was no way for me to reach [Ms. Jeon] because there
was no cell phone or email in those days and I did not even have her address
5
Case: 18-60429 Document: 00515193739 Page: 6 Date Filed: 11/08/2019
No. 18-60429
in New York.” Ms. Jeon’s cousin, on the other hand, is adamant that “[i]f we
did receive such mail, we would have contacted Sang Hui [Jeon].” But the
cousin did not live at the New Jersey residence “from late 1990 to 1994.” And
she concedes that, after Ms. Jeon moved to New York, “we lost contact with
Sang Hui for a long time, and only recently reconnected.” Ms. Jeon herself
admits that she “lost touch” with her aunt, and that it took her “countless
attempts” to “reconnect.”
As part of the decisionmaking process, the BIA was entitled to weigh the
credibility of the affiants’ statements. See Mauricio-Benitez v. Sessions, 908
F.3d 144, 150 (5th Cir. 2018). One interpretation of the affidavits—the
interpretation the BIA appears to have adopted—is that they show that Ms.
Jeon’s New Jersey family members would not have been able to contact her if
they had received a hearing notice. Given the competing evidence, we cannot
say that the BIA was capricious, without foundation, or irrational when it
determined that the “new evidence . . . [did] not assist [Ms. Jeon].”
C.
Ms. Jeon also asserts that the BIA failed “to consider all of the relevant
evidence,” including the promptness with which she brought her motion to
reopen once she discovered the deportation order. Hernandez v. Lynch, 825
F.3d 266, 271 (5th Cir. 2016). Again, she is wrong. The BIA considered that
Ms. Jeon had not “offered a coherent and persuasive explanation” for the four-
year gap between learning about the order in 2003 and filing her first motion
in 2007. And it noted that Ms. Jeon was informed of the existence of
proceedings when she was personally served with the OSC in 1990, which
made her failure to follow up inexcusable. We see no reason to set aside these
factual determinations. See Mauricio-Benitez, 908 F.3d at 151 (prompt action
after learning about a deportation order did not require reopening when
6
Case: 18-60429 Document: 00515193739 Page: 7 Date Filed: 11/08/2019
No. 18-60429
petitioner filed his motion thirteen years after being informed of the pendency
of deportation proceedings). 3
D.
Finally, because the outcome of her first motion to reopen would have
failed for the same reasons had Ms. Jeon presented her evidence then, she
cannot show that her original lawyer’s performance prejudiced the outcome of
the case. Ms. Jeon’s ineffective-assistance-of-counsel argument is therefore
without merit. See Miranda-Lores v. INS, 17 F.3d 84, 85 (5th Cir. 1994).
* * *
The petition for review is DENIED.
3 In any event, evidence regarding the “alien’s due diligence upon learning of the in
absentia order” does not create an independent basis for reopening—it merely assists a
petitioner in rebutting the presumption of notice. Mauricio-Benitez, 908 F.3d at 150. But we
have already held that Ms. Jeon suffered no prejudice from deficient notice because she failed
to update her address. See Part II.B, supra. So this evidence does little to advance her case,
regardless of how much weight it is given.
7