Luna v. Garland ( 2023 )

Case: 21-60195 Document: 00516757363 Page: 1 Date Filed: 05/19/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
No. 21-60195 May 19, 2023
____________ Lyle W. Cayce
Clerk
Dagoberto Luna,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A076 839 445
______________________________
Before Higginbotham, Southwick, and Willett, Circuit Judges.
Per Curiam: *
Dagoberto Luna petitions for review of the Board of Immigration
Appeals’ dismissal of his appeal of an immigration judge’s denial of his
motion to rescind an in absentia removal order. Luna contends he received a
defective Notice to Appear that renders the in absentia removal order invalid.
We agree. We GRANT Luna’s petition, VACATE, and REMAND for
further proceedings.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-60195 Document: 00516757363 Page: 2 Date Filed: 05/19/2023
No. 21-60195
FACTUAL AND PROCEDURAL BACKGROUND
Dagoberto Luna, a native and citizen of Mexico, entered the United
States without possessing a valid visa, reentry permit, border crossing card,
or other entry document. According to Luna, he entered the United States
in 1997 and applied for adjustment of status, which was denied in 2002. A
Notice to Appear (NTA) was sent to him on June 26, 2003, via regular mail,
that informed him that he was removable pursuant to 8 U.S.C. §
1182(a)(7)(A)(i)(I).
The NTA informed Luna that he was to appear for a removal hearing
at an immigration court in Houston and warned him of the consequences of
failing to appear. The NTA stated that the hearing date and time were “[t]o
be calendared and notice provided by the office of the Immigration Judge.”
A notice of hearing (NOH) was mailed to the same address as the NTA,
informing Luna that his hearing was scheduled for November 13, 2003, at
8:30 a.m. Luna failed to appear, and the immigration judge (IJ) conducting
the hearing ordered him, in absentia, to be removed to Mexico.
In September 2018, Luna filed a motion to rescind the removal order
and to reopen his immigration proceedings. Luna asserted he received
neither the NTA nor the NOH. In addition, he asserted his evidence
rebutted any presumption of delivery. Relying on Pereira v. Sessions, 138 S.
Ct. 2105 (2018), Luna also argued that the NTA was defective because it
failed to specify the date and time of the hearing. Also pursuant to Pereira,
Luna argued he was prima facie eligible for cancellation of removal. In the
alternative, Luna requested that the IJ reopen the proceedings sua sponte due
to changes in the law wrought by Pereira.
In December 2019, the IJ denied Luna’s motion. The IJ determined
that Pereira was limited in scope and did not hold that an invalid NTA
deprives the IJ of jurisdiction. Further, the IJ found that Luna had failed to
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rebut the presumption of delivery. The IJ concluded that the notice provided
in the NOH, after the issuance of the NTA, was sufficient, and therefore
Luna had not proven the proceedings should be reopened. As to Luna’s
request for the court to reopen the proceedings sua sponte, the IJ found that
Luna had not established his prima facie eligibility for cancellation of removal
based on exceptional and extremely unusual hardship to his qualifying
relatives. Additionally, the IJ concluded that Pereira did not justify sua sponte
reopening because its holding was limited in scope and did not apply in
Luna’s case. Accordingly, the motion to reopen the proceedings was denied.
The Board of Immigration Appeals (“BIA”) dismissed Luna’s appeal
in February 2021. First, the BIA found that Luna had not rebutted the
presumption that the NTA and NOH were delivered. Further, the BIA
determined that Luna’s claim that the NTA was invalid was foreclosed by
BIA and Fifth Circuit precedent. Additionally, the BIA noted that Luna’s
motion to reopen to seek cancellation of removal was untimely and that he
had not proved that his relatives would suffer exceptional and extremely
unusual hardship if he were removed. Finally, the BIA broadly determined
that reopening was not warranted under its sua sponte authority. Luna then
filed a timely petition for review.
DISCUSSION
This court applies “a highly deferential abuse-of-discretion standard
in reviewing the denial of a motion to reopen removal proceedings.”
Hernandez-Castillo v. Sessions, 875 F.3d 199, 203 (5th Cir. 2017). The BIA
“abuses its discretion when it issues a decision that is capricious, irrational,
utterly without foundation in the evidence, based on legally erroneous
interpretations of statutes or regulations, or based on unexplained departures
from regulations or established policies.” Barrios-Cantarero v. Holder, 772
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F.3d 1019, 1021 (5th Cir. 2014). We review conclusions of law de novo and
findings of fact for substantial evidence. Id.Luna argues that the BIA abused its discretion when it declined to
reopen proceedings because (1) his NTA was defective and (2) he has
successfully rebutted the presumption of receipt for his NTA and NOH.
Luna also argues that the BIA erred in (3) not exercising its sua sponte
authority to reopen proceedings. Because we conclude that Luna’s first
argument has merit, we need not reach Luna’s other issues.
I. Notice to appear
When the government initiates removal proceedings under 8 U.S.C.
§ 1229a, it is required to provide an alien with a written NTA. Section
1229(a) provides that the NTA “shall be given . . . to the alien . . . specifying”
— among other things — “[t]he time and place at which the proceedings will
be held.” § 1229(a)(1)(G)(i). Service of notice of the time and place of a
removal proceeding is sufficient if provided at the most recent address given
by the alien. § 1229a(b)(5)(A).
If an alien fails to appear at his removal proceedings “after written
notice required under [8 U.S.C. § 1229(a)(1) or (2)] has been provided,” then
the alien “shall be ordered removed 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.” § 1229a(b)(5)(A).
An alien may move to reopen proceedings in which an in absentia
removal order was issued and to rescind that order “upon a motion to reopen
filed at any time 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.”
§ 1229a(b)(5)(C)(ii).
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Luna contends that because the NTA was defective by not containing
the date and time of his hearing, the IJ lacked jurisdiction over his
immigration proceedings and the in absentia removal order was invalid.
We begin by reviewing relevant precedents, some of which were
issued after Luna filed his petition for review in this case.
In Pereira, 138 S. Ct. at 2109–10, the Supreme Court held that an NTA
that fails to inform an alien of when and where to appear is invalid; it
therefore does not invoke the stop-time rule of 8 U.S.C. § 1229b(d), which
ends the period of continuous presence in the United States for purposes of
cancellation of removal.
In Niz-Chavez v. Garland, 141 S. Ct. 1474, 1484–86 (2021), the Court
held that for purposes of the stop-time rule, an NTA must contain all the
relevant information on the hearing — including the time and place of the
proceedings — in a single document.
In Rodriguez v. Garland, 15 F.4th 351, 354–55 (5th Cir. 2021), this
court applied Niz-Chavez outside of the stop-time context. There, Rodriguez
was served with an NTA that did not contain the time and date of his
immigration hearing. Id. at 353. Later, the immigration court sent an NOH
containing the information missing from the NTA. Id. When Rodriguez did
not appear at his removal hearing, the IJ ordered him removed in absentia. Id.Later, Rodriguez moved to rescind his removal order and reopen
proceedings. Id. The IJ denied his motion; the BIA affirmed and dismissed.
Id. Applying Niz-Chavez’s logic, we held that, in the context of in absentia
removal orders, a single document containing the statutory information is
required for the alien to receive proper notice. Id. at 354–55. Thus, we
vacated the BIA’s decision and remanded. Id. at 356.
Niz-Chavez and Rodriguez did not address whether an inadequate
NTA still vests the immigration court with jurisdiction. After Pereira but
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before Niz-Chavez, though, we had held that, even if the NTA were defective
and could not be cured, the regulation governing the NTA constituted a
claim processing rule, not a jurisdictional rule. Pierre-Paul v. Barr, 930 F.3d
684, 690–91 (5th Cir. 2019) (citing 8 C.F.R. § 1003.14), abrogated in part on
other grounds by Niz-Chavez, 141 S. Ct. at 1479–80. Therefore, an invalid
NTA does not deprive an IJ of jurisdiction. See id. at 691–93. Post-Niz-
Chavez, we held that Pierre-Paul remains good law on the question of
jurisdiction. See Maniar v. Garland, 998 F.3d 235, 242 & n.2 (5th Cir. 2021).
Luna’s argument that the immigration court lacked jurisdiction is foreclosed.
As to whether a defective NTA renders the in absentia removal order
invalid, Rodriguez is on point. As in Rodriguez, the NTA sent to Luna did not
contain the date and time of his proceedings and therefore was defective.
Under Rodriguez, an IJ may not issue an in absentia order of removal when
the NTA did not contain all the required information, even if a subsequent
NOH added the omitted details. 1 Rodriguez, 15 F.4th at 355–56. As a result,
the defective NTA here rendered the in absentia removal order invalid.2
Luna has not received proper notice in accordance with Section 1229(a).
_____________________
1
A later opinion of this court may be seen as inconsistent with Rodriguez. See
Campos-Chavez v. Garland, 54 F.4th 314 (5th Cir. 2022), petition for cert. filed (Jan. 20,
2023). We need not analyze possible inconsistencies because Rodriguez, as the earlier
precedent, controls. See GlobeRanger Corp. v. Software AG U.S., Inc., 836 F.3d 477, 497
(5th Cir. 2016).
The everything-in-the-NTA rule is not to be carried too far. The Supreme Court
held that if the initial NTA provided full notice, it is proper “to send a supplemental notice
amending the time and place of an alien’s hearing if logistics require a change. See 8 U.S.C.
§ 1229(a)(2).” Niz-Chavez, 141 S. Ct. at 1485.
2
There is no contention that Luna failed to provide the Government with a viable
mailing address. Thus, this case does not implicate a separate line of precedent addressing
when an alien forfeits the right to notice. See Gudiel-Villatoro v. Garland, 40 F.4th 247, 249
(5th Cir. 2022); Platero-Rosales v. Garland, 55 F.4th 974, 980 (5th Cir. 2022) (Richman,
C.J., concurring).
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The BIA applied a “legally erroneous interpretation[]” in declining to
reopen proceedings because of Luna’s defective NTA. See Barrios-
Cantarero, 772 F.3d at 1021. In light of this error, we need not address
whether Luna rebutted the presumption of receipt for the NTA or NOH.
Nor is it necessary for us to consider the BIA’s sua sponte authority.
We GRANT Luna’s petition, VACATE the BIA’s decision, and
REMAND for further proceedings consistent with this opinion.
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