Celia Martinez v. William Barr ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CELIA DIAZ MARTINEZ, No. 17-72186
Petitioner,
Agency No.
v. A073-948-023
WILLIAM P. BARR, Attorney General,
Respondent.
CELIA DIAZ MARTINEZ, AKA Celia No. 18-72034
Diaz, AKA Celia Diaz Martinez,
Petitioner, Agency No.
A073-948-023
v.
WILLIAM P. BARR, Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 10, 2019
Pasadena, California
Filed October 30, 2019
2 DIAZ MARTINEZ V. BARR
Before: Richard A. Paez and Richard R. Clifton, Circuit
Judges, and Gary S. Katzmann, * Judge.
Opinion by Judge Katzmann;
Dissent by Judge Clifton
SUMMARY **
Immigration
Granting Celia Diaz Martinez’s petition for review of an
order of the Board of Immigration Appeals and remanding,
the panel held that: 1) absent any prejudice to the
Government, a premature petition for review of an
immigration order may ripen upon final disposition of the
case by the BIA; and 2) the BIA abused its discretion in
denying Diaz Martinez’s appeal of an immigration judge’s
denial of her motion to reopen, where the IJ in the underlying
removal proceeding ordered Diaz Martinez removed in
absentia on the basis of an amended notice to appear of
which she did not receive proper notice.
In 2007 Diaz Martinez was served with a notice to appear
(“NTA”) charging her as an alien present in the United States
who had not been admitted or paroled and alleging that she
arrived in the United States at or near San Ysidro, California,
on or about August 25, 1989.
*
The Honorable Gary S. Katzmann, Judge for the United States
Court of International Trade, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DIAZ MARTINEZ V. BARR 3
In June of 2010, Diaz Martinez’s counsel was personally
served a notice of her next hearing, and Diaz Martinez
submitted a change of address to the immigration court and
the Government. That same day, the Government issued an
amended NTA, in which it amended its factual allegations to
charge that she entered the United States at or near an
unknown place on or about an unknown date. A box was
checked indicating that the amended allegations were “in
lieu of” the allegations in the 2007 NTA. The certificate of
service section listed Diaz Martinez’s old address, not the
new address she provided, and the boxes for means of
service were all left blank. When Diaz Martinez did not
appear at her next hearing, the IJ ordered her removed in
absentia.
In 2017, Diaz Martinez filed a motion to reopen, which
the IJ denied, and Diaz Martinez appealed to the BIA. While
her appeal was pending with the BIA, she filed a petition for
review with this court on August 22, 2017, and the BIA later
dismissed her appeal on October 25, 2017.
Diaz Martinez also filed a second motion to reopen, this
time with the BIA, which denied the motion, and Diaz
Martinez sought review of that order in this court.
The panel held that it had jurisdiction over Diaz
Martinez’s first petition for review, concluding that, absent
any prejudice to the Government, a petition for review of an
IJ’s order of removal, prematurely filed with this court prior
to a final order from the BIA, may ripen upon final
disposition of the case by the BIA. The panel explained that
this court has allowed for premature appeals to ripen in civil
cases and emphasized the importance of lenity when
addressing premature appeals by pro se litigants, as Diaz
Martinez was when she prematurely filed her petition for
4 DIAZ MARTINEZ V. BARR
review. The panel also noted the persuasive reasoning of the
Second, Third, and Eleventh Circuits, which have held that
a premature petition for review can ripen, and declined to
follow the contrary approach of the Fifth and Sixth Circuits.
As a threshold matter, the panel concluded that Diaz
Martinez had sufficiently exhausted the argument that she
lacked notice of the charges in the amended NTA.
Next, the panel held that the BIA abused its discretion in
denying the appeal of the IJ’s denial of her motion to reopen,
explaining that her removal order relied on Diaz Martinez’s
admissions to the amended NTA, despite the fact that there
was no evidence in the record that she received the required
notice of the amended NTA. The panel also concluded that
this due process violation prejudiced Diaz Martinez, noting
that: 1) she had plausible grounds for discretionary relief;
2) the failure to serve her deprived her of the opportunity to
seek a continuance in light of the amended factual
allegations; 3) she lacked notice of facts she would need to
prove to qualify for relief; and 4) the order was not supported
by substantial evidence, as it was based on an ineffective
NTA. The panel thus remanded to the BIA with instructions
to reopen the removal proceedings.
Because the panel determined that the removal order was
defective, the panel stated it would not reach Diaz
Martinez’s petition for review of her second motion to
reopen.
Dissenting, Judge Clifton agreed with the majority that
this court has subject matter jurisdiction over Diaz
Martinez’s first motion to reopen. However, Judge Clifton
dissented because: 1) Diaz Martinez failed to exhaust before
the BIA the argument that the majority relies upon; and 2) to
DIAZ MARTINEZ V. BARR 5
obtain relief based on a purported due process violation, a
petitioner must demonstrate prejudice, and Diaz Martinez
did not.
COUNSEL
Kathryn Marie Davis (argued), Supervising Attorney;
Marcel Budiono (argued) and Octavio Velarde (argued),
Certified Law Students; U.C. Irvine School of Law,
Pasadena, California; Peter R. Afrasiabi, One LLP, Newport
Beach, California; for Petitioner.
Sherease Rosalyn Pratt (argued), Senior Litigation Counsel;
Anthony P. Nicastro, Assistant Director; Joseph H. Hunt,
Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
KATZMANN, Judge:
Petitioner Celia Diaz Martinez (“Diaz Martinez”)
challenges the denials, by an immigration judge (“IJ”) and
Board of Immigration Appeals (“BIA”), of two motions to
reopen her removal proceedings. Diaz Martinez sought to
reopen her removal proceedings after an IJ issued an in
absentia removal order when she failed to appear at an
immigration hearing. She filed the first motion to reopen
(“first MTR”) with an IJ, who denied the motion shortly after
suggesting that Diaz Martinez would have time to review the
record and amend the motion. Diaz Martinez then appealed
to the BIA for review of the denial and, before the BIA
6 DIAZ MARTINEZ V. BARR
denied that appeal, Diaz Martinez pro se petitioned for
review of the IJ’s denial of her first MTR to this court. The
BIA subsequently denied her appeal. With new counsel,
Diaz Martinez filed a second motion to reopen (“second
MTR”) with the BIA, which the BIA also denied and Diaz
Martinez petitioned for review.
Whether we have jurisdiction to review the denial of the
first MTR, where Diaz Martinez filed her petition before the
BIA issued a final decision, is an issue of first impression for
our court. Diaz Martinez argues that we have subject matter
jurisdiction over her pro se petition because the BIA issued
a decision before this court considered the merits of her case,
thus curing any defect in her premature filing in this court.
Assuming jurisdiction, Diaz Martinez asks us to void the IJ’s
in absentia removal order and remand this case to the BIA to
reopen because (1) she lacked notice of the amended charges
against her; (2) she lacked notice of the time of her final
removal hearing; (3) the IJ and BIA wrongly ignored the
statements of Diaz Martinez’s counsel; (4) the IJ should have
waited to rule on Diaz Martinez’s MTR because of her
history of diligence; and (5) the BIA abused its discretion by
not reopening the case sua sponte. Diaz Martinez further
argues that the BIA should have granted Diaz Martinez’s
second MTR.
We determine that we have jurisdiction over the petition
for review of the first MTR, as the petition ripened prior to
consideration on the merits here. Pursuant to 8 U.S.C.
§ 1229a(b)(5)(C)(ii), we conclude that Diaz Martinez lacked
notice of the amended charges, and therefore the removal
order was unsupported by substantial evidence and the BIA
abused its discretion in failing to reopen her proceedings.
Accordingly, we grant the petition for review. We do not
reach Diaz Martinez’s alternative arguments.
DIAZ MARTINEZ V. BARR 7
I. Factual and Procedural Background
Diaz Martinez is a 47-year-old citizen of El Salvador
without legal status in the United States. Diaz Martinez has
five U.S. citizen children, two of whom have medical issues.
On February 9, 2007, Diaz Martinez was served in
person with a notice to appear (“2007 NTA”) and taken into
immigration custody. She was charged with violating
section 212(a)(6)(A)(i) of the Immigration and Nationality
Act (“INA”) as “an alien present in the United States who
has not been admitted or paroled.” 8 U.S.C. § 1182 (2007).
The 2007 NTA alleged the following facts:
1) You are not a citizen or national of the
United States;
2) You are a native of El Salvador and a
citizen of El Salvador;
3) You arrived in the United States at or near
San Ysidro, California, on or about August
25, 1989;
4) You were not then admitted or paroled
after inspection by an Immigration Officer.
The 2007 NTA was stamped as received by the Department
of Justice on February 15, 2007 and stamped as an exhibit
by the IJ on March 5, 2007. On March 7, 2007, Diaz
Martinez was released on bond from immigration custody in
Florence, Arizona.
Over the course of three years, Diaz Martinez diligently
attended numerous hearings in immigration court and
communicated her address changes to the Government (i.e.,
8 DIAZ MARTINEZ V. BARR
the Department of Homeland Security). Diaz Martinez’s
first master calendar hearing was scheduled for May 1, 2007
at 8:30 a.m. On May 1, the IJ granted her pro se motion for
a change of venue to the immigration court in Los Angeles,
California. On May 17, 2007, the Los Angeles immigration
court served Diaz Martinez by mail with a notice of hearing,
scheduling a master calendar hearing at the Los Angeles
immigration court for June 13, 2007 at 9:00 a.m. On June
13, 2007, the immigration court served her in person with a
new notice of hearing, scheduling a master calendar hearing
for February 25, 2008 at 9:30 a.m. On February 12, 2008,
the immigration court issued another new notice of hearing,
scheduling an individual hearing for June 2, 2008 at
9:30 a.m. The certificate of service box indicates that the
new notice was served by mail to both Diaz Martinez and
her then-counsel. On February 25, 2008, Diaz Martinez was
served in person 1 with another notice of hearing, again
scheduling an individual hearing for June 2, 2008 at
9:30 a.m. On June 2, 2008, the immigration court served
Diaz Martinez and her attorney in person with a new notice
of hearing, reassigning Diaz Martinez’s case to a new IJ and
scheduling a master calendar hearing for November 25, 2008
at 9:30 a.m. That same day, Diaz Martinez filed a change of
address form with the immigration court. On December 3,
2009, the immigration court issued a new notice of hearing,
scheduling a master calendar hearing for June 23, 2010 at
8:30 a.m. The notice indicated that it was served by mail on
Diaz Martinez’s counsel at the time.
1
The record suggests Diaz Martinez appeared for the previously
scheduled February 25, 2008 master calendar hearing that the
immigration court had already rescheduled for June 2, 2008 as an
individual hearing.
DIAZ MARTINEZ V. BARR 9
On June 23, 2010, Diaz Martinez and her then-counsel
appeared before the immigration court, and the court issued
a notice of hearing for another master calendar hearing. The
notice was served on Diaz Martinez’s counsel in person and
indicated that a master calendar hearing would be held on
October 27, 2010 at 8:00 a.m., with the “8” partly obscured
by a pen marking. The notice also indicated that the next
hearing would be a removal hearing and failure to appear
would, absent exceptional circumstances, result in
ineligibility for certain forms of relief under the INA.
That same day, June 23, 2010, two other critical events
occurred. First, Diaz Martinez submitted a change of
address form, providing a new address. 2 The IJ stamped the
form as received on June 23, 2010, and Diaz Martinez signed
the form, certifying that she had mailed a copy of it to the
Government. Second, the Government issued an
“Additional Charges of Inadmissibility/Deportability” form
(“amended NTA”), which amended the 2007 NTA. The
Government lodged no additional charges against Diaz
Martinez, but it amended the factual allegations against her.
The Government alleged, “You entered the United States at
or near an unknown place on or about an unknown date,”
removing the references to El Salvador and the 1989 entry.
A box was checked indicating that the amended factual
allegations were “in lieu of,” rather than “in addition to,” the
facts alleged in the 2007 NTA. Thus, the amended NTA no
longer included her approximate date or place of entry into
the United States. The IJ also stamped the amended NTA as
received on June 23, 2010. The certificate of service section
of the form listed Diaz Martinez’s old address, not the new
2
An immigrant in removal proceedings is required to provide the
immigration court with notice of a change in address, and she has “five
days” to do so after changing her address. 8 C.F.R. § 1003.15(d)(2).
10 DIAZ MARTINEZ V. BARR
address provided on June 23, 2010, and the boxes for means
of service (in person, certified mail, regular mail, and oral
notice) were all left blank. Neither the Government nor Diaz
Martinez signed the certificate of service box. The record
does not provide any other evidence that Diaz Martinez or
her counsel were served by mail or in person with the
amended NTA.
On October 27, 2010, Diaz Martinez was not present at
the hearing, and the IJ ordered her removed in absentia. The
IJ marked the following as her finding: “At a prior hearing
the respondent admitted the factual allegations in the Notice
to Appear and conceded removability. I find removability
established as charged.” The IJ’s final order concluded that
“[t]he respondent shall be removed to EL SALVADOR on
the charge(s) contained in the Notice to Appear.”
Diaz Martinez claims that in October 2010, she went to
the Los Angeles immigration court for her hearing, but the
courtroom was locked, and court staff told her that the IJ was
not present. According to Diaz Martinez, court staff told her
that she would receive notice of a new hearing date and time
in the mail. Diaz Martinez did not receive a new notice of
hearing. Diaz Martinez then made payments to a notario
who had previously helped her so that he would reopen her
case. She later learned that he never did so, and she instead
had been ordered removed. In 2014, she hired new counsel
to reopen her case, but he died in a car accident, and no
motion to reopen was filed.
In 2017, Diaz Martinez retained new counsel. On June
1, 2017, counsel filed a motion to reopen removal
proceedings (the “first MTR”) and a motion to stay removal
in the immigration court. The first MTR challenged Diaz
Martinez’s order of removal on due process grounds,
arguing that “[d]ue process requires that the alien be
DIAZ MARTINEZ V. BARR 11
provided with notice of proceedings and an opportunity to
be heard. Notice must be reasonably calculated to apprise
the alien of his or his scheduled hearing and the immigration
charges against him.” The first MTR further stated that
“[t]his motion will be supplemented after counsel has had
the opportunity to review the Court’s Record of
Proceedings.” That same day, then-counsel for Diaz
Martinez sent a request to the Executive Office for
Immigration Review (“EOIR”) for audio of “Respondent’s
hearings, including her removal hearing on October 27,
2010.”
A little over a week later, on June 9, 2010, the IJ denied
the first MTR because the motion was not supported by
documentary evidence. In a separate order issued that same
day, the IJ granted the motion for a stay of removal to enable
counsel to review the record and resubmit the MTR. The
decision was served on Diaz Martinez’s counsel by mail,
under a cover letter dated June 12, 2017.
Diaz Martinez appealed the denial of the first MTR to
the BIA. The Government then filed a motion to vacate or
terminate the stay of removal, and the IJ granted the motion
on July 12, 2017, finding that Diaz Martinez had failed to
timely resubmit her motion with supporting documentation. 3
3
The actions of the IJ are puzzling. By denying the first MTR, the
IJ had issued a final, appealable order on June 9, 2010—and, in fact, that
is the order on the first MTR that the BIA ultimately reviewed. An
immigrant has 30 days to appeal the decision of an immigration judge,
8 C.F.R. § 1003.38, and because there is no suggestion of any defect
regarding the timing of Diaz Martinez’s appeal, it would appear that she
already had appealed the June 9 order to the BIA before the IJ’s later
order vacating her stay on July 12. The IJ’s jurisdiction, then, was
questionable after the June 9 order. Because an immigrant cannot
supplement her record in the BIA—record development only occurs
12 DIAZ MARTINEZ V. BARR
The order terminating the stay of removal was served by
mail on Diaz Martinez’s counsel on July 13, 2017.
On August 3, 2017, Diaz Martinez pro se filed a petition
for review of the IJ’s decision in the Ninth Circuit. On
August 22, 2017, her counsel filed with the BIA a brief in
support of Diaz Martinez’s appeal of the IJ’s denial of the
first MTR. On October 25, 2017, the BIA dismissed the
appeal of the IJ’s June 9, 2017 order denying the first MTR.
The following day, the Government filed a motion to dismiss
Diaz Martinez’s federal petition for lack of subject matter
jurisdiction. We denied the motion to dismiss without
prejudice and ordered further briefing from both parties as to
“whether the BIA’s October 25, 2017 order cures any
prematurity in the filing of this petition.” We also granted a
motion to stay removal pending the outcome of these
proceedings.
On February 1, 2018, through new counsel, Diaz
Martinez filed a second MTR, this time directly with the
BIA. The second MTR included a declaration in which Diaz
Martinez explained the circumstances around her absence
from the October 27, 2010 immigration court hearing,
among other things. The BIA denied the MTR on June 20,
2018, finding that it was filed untimely, was number-barred,
and included an incomplete declaration. The BIA further
concluded that “[w]e also do not find that the respondent’s
due process rights were violated based on a lack of notice.”
before an IJ, 8 C.F.R. § 1003.1(d)(3)(iv)—it is unclear how Diaz
Martinez could then have supplemented her motion. Moreover, it is
unclear whether Diaz Martinez or her counsel ever received the audio
she had requested from the EOIR because Diaz Martinez again requested
audio from her hearings on July 24, 2017, so she may have still been
unprepared to supplement her motion as of July 12.
DIAZ MARTINEZ V. BARR 13
Diaz Martinez then sought review of the BIA’s denial of the
second MTR with this court.
We review the consolidated petitions for review of Diaz
Martinez’s first and second MTRs.
II. Jurisdiction
“[W]e retain jurisdiction to determine our own
jurisdiction.” Ramirez v. Lynch, 810 F.3d 1127, 1130 (9th
Cir. 2016). Diaz Martinez and the Government dispute
whether we have jurisdiction over her petition for review of
the first MTR, docketed at 17-72186. There is no dispute,
however, as to our jurisdiction over her petition for review
of the second MTR, docketed at 18-72034. Because the
second MTR poses potential procedural obstacles to
reaching consideration on the merits that the first MTR does
not, we begin with the issue of jurisdiction over the first
MTR. 4 Both MTRs seek to challenge an in absentia removal
order, which we have jurisdiction to review pursuant to
8 U.S.C. § 1229a(b)(5)(D).
To determine our jurisdiction we resolve the following
issue: can a petition for review of an IJ’s final order of
removal, prematurely filed with our court prior to a final
order from the BIA, ripen into an effective appeal pursuant
to Federal Rule of Appellate Procedure 4(a)(2) upon
4
For instance, the BIA concluded that Diaz Martinez’s second MTR
was number-barred. Typically, petitioners may file only one motion to
reopen. 8 U.S.C. § 1229a(c)(7)(A). A court may, in certain
circumstances, equitably toll the number-bar to a subsequent motion to
reopen. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1223–26 (9th Cir.
2002). Because we have jurisdiction over the first MTR and determine
that the removal order is defective, we do not reach the petition for
review of the second MTR, and any legal issues unique to that petition.
14 DIAZ MARTINEZ V. BARR
issuance of a final ruling from the BIA? We previously left
that question open, “tak[ing] no position on the current
circuit split regarding treatment of premature petitions
generally.” Abdisalan v. Holder, 774 F.3d 517, 527 (9th Cir.
2014) (en banc). We have made clear that, pursuant to
statutory requirements, our court’s jurisdiction to review
immigration court decisions is limited to final orders of
removal from the BIA. See Alcala v. Holder, 563 F.3d 1009,
1013 (9th Cir. 2009) (citing 8 U.S.C. § 1252); see also
Shaboyan v. Holder, 652 F.3d 988, 989–90 (9th Cir. 2011)
(finding that an interim order from the BIA denying a stay
of removal did not qualify as a reviewable final order of
removal but leaving open the possibility that the order could
be reviewed as part of the review of a final order of removal).
In Abdisalan, we explained that “when the BIA remands to
the IJ for any reason, no final order of removal exists until
all administrative proceedings have concluded . . . [W]hen
the BIA issues a mixed decision, no aspect of the BIA’s
decision is ‘final’ for the purpose of judicial review.”
774 F.3d at 526. Thus, while pending administrative
proceedings on remand may preclude the ripening of a
premature petition to the court, we have not decided whether
a premature petition may ripen upon final disposition of all
issues by the BIA. Upon review of both our civil case law
and persuasive authority from our sister courts in the Second,
Third, and Eleventh Circuits, we now hold that such a
petition may ripen, providing us jurisdiction over Diaz
Martinez’s prematurely filed pro se petition for review.
1. Ripening of Premature Appeals in Civil Cases
It is undisputed that Diaz Martinez’s petition for review
of the first MTR was premature when it was filed with this
court, as there was no final order. The issue is instead
whether her premature pro se petition may ripen upon the
DIAZ MARTINEZ V. BARR 15
issuance of a final order. Our civil case law allows for
premature appeals to ripen and suggests lenity in treatment
of pleadings by pro se parties.
We have allowed for premature appeals to ripen in civil
cases. Absent special circumstances, a litigant may only
appeal from a final judgment. See Marshall v. Sawyer,
301 F.2d 639, 643 (9th Cir. 1962) (noting that orders
dismissing complaints without dismissing the entire action
are not appealable unless it is clear that no amendment to the
complaint could possibly save the action); see also Serine v.
Peterson, 989 F.2d 371, 372 (9th Cir. 1993) (holding that the
findings and recommendation of a magistrate judge are not
appealable until adopted by the district court). However, a
notice of appeal directed at a non-appealable order can serve
as a notice of appeal directed at a subsequently entered,
appealable final decision. We prioritize substantive rights of
parties over procedural defects in appeals, allowing
premature appeals to ripen absent any prejudice to the
appellee. In Firchau v. Diamond Nat’l Corp., 345 F.2d 269,
271 (9th Cir. 1965), we interpreted a plaintiff’s premature
appeal of a non-final order dismissing only a single claim as
directed at the ensuing final judgment rather than the
dismissal of the claim, thus treating the appeal as valid.
Similarly, in Eason v. Dickson, 390 F.2d 585 (9th Cir. 1968),
we found that the plaintiff’s premature notice of appeal
became an effective notice of appeal when the district court
issued a final decision and “the premature notice did not
adversely ‘affect substantial rights’ of the prevailing
adversary.” Id. at 588 (quoting Firchau, 345 F.2d at 271).
Premature appeals, moreover, do not divest the lower court
of its jurisdiction to issue a subsequent final and appealable
judgment. See Ruby v. Secretary of United States Navy,
365 F.2d 385, 389 (9th Cir. 1966); Resnik v. La Paz Guest
Ranch, 289 F.2d 814, 818 (9th Cir. 1961).
16 DIAZ MARTINEZ V. BARR
In allowing premature appeals to ripen, we use “a
pragmatic approach to finality in situations where events
subsequent to a nonfinal order fulfill the purposes of the final
judgment rule.” Cato v. Fresno City, 220 F.3d 1073, 1074–
75 (9th Cir. 2000) (quoting Dannenberg v. Software
Toolworks, Inc., 16 F.3d 1073, 1075 (9th Cir. 1994)). We
can assume jurisdiction based on a prematurely filed notice
of appeal when “subsequent events can validate [the]
prematurely filed appeal.” Anderson v. Allstate Ins. Co.,
630 F.2d 677, 681 (9th Cir. 1980).
We have allowed premature notices of appeal directed at
all manner of non-appealable orders to ripen into notices of
appeal of subsequent, appealable judgments. See, e.g., Cato,
220 F.3d at 1074–75 (reviewing an order sanctioning
attorneys); Eastport Assocs. v. City of L.A., 935 F.2d 1071,
1075 (9th Cir. 1991) (reviewing a decision not to abstain);
Anderson, 630 F.2d at 681 (reviewing an order dispensing of
some but not all claims). We have also reviewed amended
orders where the notice of appeal was filed after the original
order but not refiled after the amended order. See, e.g.,
Bruce v. United States, 759 F.2d 755, 757 (9th Cir. 1985).
We also emphasize the importance of lenity when
addressing premature appeals by pro se litigants, as Diaz
Martinez was when she prematurely filed a petition for
review of her first MTR with this court. “[W]e have an
obligation where the petitioner is pro se, particularly in civil
rights cases, to construe the pleadings liberally and to afford
the petitioner the benefit of any doubt.” Byrd v. Phoenix
Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018) (concerning
an inmate’s Fourth Amendment excessive force claim)
(quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.
1985) (en banc)); see also Bernhardt v. Los Angeles Cty.,
339 F.3d 920, 925 (9th Cir. 2003) (“Courts have a duty to
DIAZ MARTINEZ V. BARR 17
construe pro se pleadings liberally.”). Thus, an appellant’s
experience weighs further in favor of allowing an appeal to
ripen.
2. Circuit Split on the Ripening of Premature
Petitions for Review
Diaz Martinez cites three cases from the Second, Third,
and Eleventh Circuits to argue that “a premature petition of
review can ripen because the cases are more analogous to the
case at bar.” See Jimenez-Morales v. U.S. Atty. Gen.,
821 F.3d 1307 (11th Cir. 2016); Khan v. Attorney Gen. of
U.S., 691 F.3d 488 (3d Cir. 2012); Herrera-Molina v.
Holder, 597 F.3d 128 (2d Cir. 2010). The Government
instead contends that our court should “align itself with the
Fifth and Sixth Circuits and dismiss the petition.” 5 See
Moreira v. Mukasey, 509 F.3d 709, 713 (5th Cir. 2007);
Jaber v. Gonzales, 486 F.3d 223, 228–30 (6th Cir. 2007).
We agree with the approach of the Second, Third, and
Eleventh Circuits and exercise jurisdiction over Diaz
Martinez’s petition for review. Here, as in Herrera-Molina,
Khan, and Jimenez-Morales, the jurisdictional defect in
filing the petition was cured by a final judgment from the
BIA before this court had considered any aspect of the
5
Citing Bowles v. Russell, 551 U.S. 205, 214 (2007), the
Government also argues that courts have “no authority to create
equitable exceptions to jurisdictional requirements.” There, the Supreme
Court rejected the “unique circumstances doctrine,” which would
otherwise have allowed a federal district court to reopen and extend the
time for filing a notice of appeal after the statutory period had ended. Id.
In contrast, here, Diaz Martinez did file a petition for review, and the
question is whether the underlying petition may ripen when the BIA
issues a final order. We also note that Bowles preceded the decisions
from our sister circuits with which we align ourselves.
18 DIAZ MARTINEZ V. BARR
petition, and the Government has shown no prejudice
resulting from the premature filing.
In Herrera-Molina, after an IJ denied Herrera-Molina
withholding of removal, Herrera-Molina filed both an appeal
with the BIA and a petition for review with the Second
Circuit. 597 F.3d at 131–32. The BIA subsequently
dismissed Herrera-Molina’s appeal. Id. The Government
argued that the Second Circuit lacked jurisdiction because
“at the time that the parties filed their briefs, Herrera-
Molina’s appeal of the IJ’s denial of withholding of removal
was still pending before the BIA” and thus “the reinstated
order of deportation was not a ‘final’ order of removal over
which [the Second Circuit] could exercise jurisdiction.” Id.
at 132 (citing Chupina v. Holder, 570 F.3d 99, 103–04 (2d
Cir. 2009)). The Second Circuit decidedly rejected the
Government’s argument that it lacked jurisdiction, holding
that “[a] premature petition for review of a not-yet-final
order of removal can become a reviewable final order upon
the adjudication of remaining applications for relief and
protection, provided that the [Government] has not shown
prejudice.” Id. (citing Lewis v. Gonzales, 481 F.3d 125,
128–29 (2d Cir. 2007); Foster v. INS, 376 F.3d 75, 77 (2d
Cir. 2004)). The Second Circuit noted that the Government
did not claim prejudice, “nor do[es the court] “even if
Herrera-Molina’s initial petition were premature, . . . the
reinstatement of his prior deportation order is now a
reviewable final order and [the court] proceed[ed] to the
merits of his arguments.” Id.
The Third Circuit in Khan followed the Second Circuit’s
approach to the ripening of a premature petition. There,
Khan overstayed his visa and sought asylum, withholding of
removal, and Convention Against Torture (“CAT”)
protection. Khan, 691 F.3d at 491. The IJ denied the
DIAZ MARTINEZ V. BARR 19
applications, and the BIA affirmed the IJ’s denial. Id.
at 491–92. Several years later, Khan filed an emergency
motion for a stay of removal and an MTR with the BIA. Id.
at 492. Khan petitioned for review of the BIA’s denial of
the motion for a stay of removal and the MTR in the Third
Circuit, before the BIA had issued a decision. Id. The BIA
then issued a final order, denying the motions. Id. The
Government “contend[ed] that the petition for review should
be dismissed because it was filed almost two weeks prior to
the BIA’s [final order], making it premature and depriving
th[e court] of jurisdiction.” Id. The Third Circuit rejected
the Government’s argument:
So long as the [Government] has not shown
that [it] will suffer prejudice resulting from
the premature filing of a petition for review,
and we have yet to take action on the merits
of the appeal, a premature petition for review
can ripen once the BIA issues a final order on
a motion to reopen. We see no reason to treat
premature petitions for review from final
orders of removal differently than we have
treated premature notices of appeal in other
types of cases.
Id. at 494. The Third Circuit adopted the Second Circuit’s
approach because it prioritized “practical, not technical
considerations” and found that the Government was not
prejudiced by allowing for the premature petition to ripen.
Id. at 493.
The Eleventh Circuit reached the same conclusion in
Jimenez-Morales. 821 F.3d at 1308–09. There, a prior
removal order was reinstated after Jimenez-Morales
reentered the United States. Id. at 1307–08. He then
20 DIAZ MARTINEZ V. BARR
expressed fear of returning and was placed in reasonable fear
proceedings. Id. at 1308. Before the proceedings had
concluded, he petitioned the Eleventh Circuit for review. Id.
Before oral argument, however, an asylum officer made a
negative reasonable fear finding, the immigration court
denied him relief, and the removal order became final. 6 Id.
(citing 8 U.S.C. § 1252(a)(1); Avila v. U.S. Att’y Gen.,
560 F.3d 1281, 1284 (11th Cir. 2009)). The Eleventh Circuit
thus had to decide “whether the conclusion of the reasonable
fear proceeding made Mr. Jimenez-Morales’ premature []
petition for review ripen into one that gave [it] jurisdiction.”
Id. The Eleventh Circuit agreed with the Second and Third
Circuits, because such an approach to premature petitions “is
consistent with how [the court] ha[d] addressed premature
appeals in other contexts.” Id at 1308–09 (citing Robinson
v. Tanner, 798 F.2d 1378, 1385 (11th Cir. 1986)); see also
Robinson, 798 F.2d at 1385 (concluding that “a premature
notice of appeal is valid if it is filed from an order dismissing
a claim or party, and is followed by a subsequent final
judgment, even without a new notice of appeal being filed”).
The premature petition had ripened, and the Eleventh Circuit
had jurisdiction. Jimenez-Morales, 821 F.3d at 1309.
In so holding, the Third and Eleventh Circuits considered
and rejected the approach of the Fifth and Sixth Circuits that
the Government advances here. See id. at 1308–09
6
“If the immigration judge concurs with the asylum officer’s
determination that the alien does not have a reasonable fear of
persecution or torture, the case shall be returned to the Service for
removal of the alien. No appeal shall lie from the immigration judge’s
decision.” 8 C.F.R. § 208.31(g)(1). Because regulations do not allow
for an appeal to the BIA where both an asylum officer and an IJ have
found no reasonable fear of persecution or torture, the IJ’s decision is
final for administrative purposes. The petitioner’s last available remedy
is a petition for review in the federal circuit court.
DIAZ MARTINEZ V. BARR 21
(reviewing the circuit split and “sid[ing] with the Second and
Third Circuits” rather than the Fifth and Sixth Circuits);
Khan, 691 F.3d at 493 (noting that “[t]here are differing
views among our sister Courts of Appeals with regard to
whether premature petitions for review can ripen upon a
final decision by the BIA” and finding that such petitions can
ripen). The Sixth Circuit found that it did not have
jurisdiction over a premature petition for review of a BIA
decision in Jaber. 486 F.3d at 228–30. There, the
immigration court ordered Jaber removed and denied his
MTR and motion for reconsideration. Id. at 227. While his
appeal was pending with the BIA, Jaber also filed a habeas
corpus petition in federal district court. Id. Finding that the
habeas petition was a challenge to a final deportation order,
the district court transferred the case to the Sixth Circuit
pursuant to the REAL ID Act, Pub. L. No. 109-13, Div. B.
§ 106, 119 Stat. 231, 311 (2005), after which the BIA issued
a final order, Jaber, 486 F.3d at 227–28. Construing the
habeas petition as “a petition for review of the as-yet-
unentered August 18, 2005, BIA decision denying his appeal
of the IJ’s denial of the [MTR],” the Sixth Circuit found that
it lacked jurisdiction because the underlying BIA decision
was not yet final when the district court transferred the case.
Id. at 228. Similarly, the Fifth Circuit in Moreira, dealt with
a habeas petition filed with a district court and subsequently
transferred to the appeals court pursuant to the REAL ID
Act. 509 F.3d at 711. Moreira had filed the habeas petition
while his pro se appeal was pending with the BIA. Id.
Relying on Jaber and Brion v. INS, 51 F. App’x 732, 733
(9th Cir. 2002) (unpublished), the Fifth Circuit found that a
22 DIAZ MARTINEZ V. BARR
premature petition in federal court could not be cured by a
final BIA order. 7 Id. at 713.
The scenarios reviewed in Herrera-Molina, Khan, and
Jimenez-Morales are closely analogous to the present
situation; whereas the procedural posture of the habeas
petitions in Jaber and Moreira are less so.
3. Diaz Martinez’s Premature Petition for Review
As we have noted, our precedent supports the ripening of
premature appeals in cases involving a variety of non-final
orders. Allowing subsequent final judgments from the BIA
to cure jurisdictional defects in immigration petitions for
review is in keeping with our prioritization of the substantive
rights of parties over technical defects and the inclination
toward lenity in the handling of pro se litigants. Here, Diaz
Martinez, proceeding pro se, filed a petition for review with
this court, challenging the IJ’s denial of her first MTR,
before the BIA had reviewed the IJ’s order. The BIA then
issued a final order of removal, thus curing the defect. The
Government, moreover, has established no prejudice from
allowing the appeal to ripen. Therefore, we hold that we
have jurisdiction over Diaz Martinez’s case because, absent
any prejudice to the Government, a premature petition for
7
In Brion, a non-precedential opinion, we held that “the fact that the
BIA ultimately issued a final order of deportation [does not] ‘cure’ a
petition that was filed prematurely.” 51 F. App’x at 733 (9th Cir. 2002).
There, critically, the BIA’s order included a remand to the IJ for further
proceedings on issues that had not been appealed to the BIA at the time
Brion petitioned our court for review. Id. More significantly, as noted
above, we have recently recognized that our court has not yet taken a
position on the ripening of non-final immigration orders. Abdisalan,
774 F.3d at 527.
DIAZ MARTINEZ V. BARR 23
review of an immigration order may ripen upon final
disposition of the case by the BIA.
We note that the posture of the matter before us aligns
with Herrera-Molina, Khan, and Jimenez-Morales. Here, as
in those cases, the BIA issued a reviewable final order prior
to the court’s consideration of any aspect of the petition for
review. Herrera-Molina, 597 F.3d at 132; Khan, 691 F.3d
at 494; Jimenez-Morales, 821 F.3d at 1309. The
Government in those cases showed no prejudice resulting
from the erroneous premature filing and has not done so
here. Herrera-Molina, 597 F.3d at 132; Khan, 691 F.3d at
494–95; Jimenez-Morales, 821 F.3d at 1309. Diaz Martinez
appealed from the IJ’s order denying her motion to reopen.
The orders appealed from in Herrera-Molina, Khan, and
Jimenez-Morales were a denial of withholding of removal, a
denial of a motion for an emergency stay and a motion to
reopen, and a finding of no reasonable fear of persecution or
torture, respectively. Herrera-Molina, 597 F.3d at 132;
Khan, 691 F.3d at 492; Jimenez-Morales, 821 F.3d at 1308.
We find unavailing the Government’s contention that these
cases are inapposite because of the type of non-final order at
issue; the Government has proffered no reason why this
would affect the ability of the petition to ripen. In each of
these cases, the basis for the petition was a non-final IJ or
BIA order that was later finalized by a BIA judgment.
In sum, guided by our jurisprudence in civil cases
allowing premature appeals to ripen and noting the
persuasive reasoning of the Second, Third, and Eleventh
Circuits, in cases with factual and legal circumstances that
align with those presented here, we join those courts in
holding that, absent any prejudice to the Government, a
premature petition for review of an immigration order may
ripen upon final disposition of the case by the BIA. We
24 DIAZ MARTINEZ V. BARR
therefore have jurisdiction to review Diaz Martinez’s
petition for review of the BIA’s denial of her first MTR.
III. Merits
With jurisdiction established over Diaz Martinez’s
petition for review of her first MTR, we turn to the merits of
her contention that the in absentia removal order imposed by
the IJ should be vacated and the BIA abused its discretion in
denying such relief.
1. Legal Background
An IJ may issue an in absentia removal order if, after the
requisite written notice was provided, an immigrant does not
attend her immigration hearing and the Government
establishes that she is removable. 8 U.S.C.
§ 1229a(b)(5)(A); see also United States v. Raya-Vaca,
771 F.3d 1195, 1204 (9th Cir. 2014) (“Due process always
requires, at a minimum, notice and an opportunity to
respond.”); Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 542 (1985) (identifying “notice and [an] opportunity for
[a] hearing appropriate to the nature of the case” as the
“essential principle[s] of due process”). “IJs are statutorily
authorized to order aliens removed in absentia only ‘if the
[Government] establishes by clear, unequivocal, and
convincing evidence that . . . the alien is removable’ as
charged in the NTA.” Al Mutarreb v. Holder, 561 F.3d
1023, 1028 (9th Cir. 2009) (quoting 8 U.S.C.
§ 1229a(b)(5)(A)). “[S]ubstantial evidence [must] support[]
the IJ’s finding that the [Government] met its high burden of
proving removability.” Id. (citing Hernandez-Guadarrama
v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005)).
The written notice requirement of an in absentia removal
order applies both to the charges and conduct alleged and the
DIAZ MARTINEZ V. BARR 25
date and time of the removal hearing. “In removal
proceedings under [8 U.S.C. §] 1229a . . . , written notice (in
this section referred to as a ‘notice to appear’ [“NTA”]) shall
be given in person to the alien (or, if personal service is not
practicable, through service by mail to the alien or to the
alien’s counsel of record, if any) specifying” various things
about the proceedings, including “[t]he charges against the
alien.” 8 U.S.C. § 1229(a)(1). “[P]aragraph (1) [of 1229(a)]
bears on the meaning of a ‘notice to appear,’” and it “speaks
in definitional terms.” Pereira v. Sessions, 138 S. Ct. 2105,
2114, 2116 (2018). Among other requirements, the NTA
must include the “nature of proceedings against the alien,”
“legal authority under which the proceedings are
conducted,” “acts or conduct alleged to be in violation of
law,” and “charges against the alien and the statutory
provisions alleged to have been violated.” 8 U.S.C.
§ 1229(a)(1)(A)–(D). Section 1229(a)(2) further provides
that, “in the case of any change or postponement in the time
and place of such proceedings,” written notice, by personal
service or mail, must be provided to an alien with the new
time and place of the proceeding and the consequences of
failure to attend the hearing.
At a removal hearing, the IJ:
shall require the respondent to plead to the
notice to appear by stating whether he or she
admits or denies the factual allegations and
his or her removability under the charges
contained therein. If the respondent admits
the factual allegations and admits his or her
removability under the charges and the
immigration judge is satisfied that no issues
of law or fact remain, the immigration judge
may determine that removability as charged
26 DIAZ MARTINEZ V. BARR
has been established by the admissions of the
respondent . . .
8 C.F.R. § 1240.10(c) (emphasis added). The Government
may add or substitute immigration charges and factual
allegations in writing “at any time during the proceeding,”
provided that “[t]he alien in removal proceedings shall be
served with a copy of these additional charges and
allegations.” Id. § 1240.10(e). The IJ then “shall read the
additional factual allegations and charges to the alien and
explain them to him or her,” and “advise the alien, if he or
she is not represented by counsel, that the alien may be so
represented, and that he or she may be given a reasonable
continuance to respond to the additional factual allegations
and charges.” Id. The IJ “may grant a reasonable
adjournment either at his or her own instance or, for good
cause shown, upon application by the respondent or the
Service.” Id. § 1240.6.
An in absentia removal order may be rescinded “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.” 8 U.S.C.
§ 1229a(b)(5)(C). The motion to reopen must “state the new
facts that will be proven at a hearing to be held if the motion
is granted and shall be supported by affidavits and other
evidentiary material,” and a “motion to reopen for the
purpose of acting on an application for relief must be
accompanied by the appropriate application for relief and all
supporting documents.” 8 C.F.R. § 1003.23(b)(3). Judicial
review of an in absentia removal order is “confined to (i) the
validity of the notice provided to the alien, (ii) the reasons
for the alien’s not attending the proceeding, and (iii) whether
or not the alien is removable.” 8 U.S.C. § 1229a(b)(5)(D).
DIAZ MARTINEZ V. BARR 27
2. Standard of Review
We review the denial of an MTR for abuse of discretion.
Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008). “The
BIA abuses its discretion when it acts arbitrarily, irrationally,
or contrary to the law.” Movsisian v. Ashcroft, 395 F.3d
1095, 1098 (9th Cir. 2005) (internal quotation and citation
omitted). We review de novo the BIA’s determination of
purely legal questions, including claims of due process
violations. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.
2004). “The sufficiency of [an] NTA is a question of law,
which is reviewed de novo.” Kohli v. Gonzales, 473 F.3d
1061, 1065 (9th Cir. 2007) (citing Lopez-Urenda v. Ashcroft,
345 F.3d 788, 791 (9th Cir. 2003)).
3. Discussion
The inquiry before us is a narrow one: Did the BIA
abuse its discretion in denying the appeal of an MTR, where
the IJ in the underlying removal proceeding ordered Diaz
Martinez removable in absentia on the basis of an amended
NTA of which she did not receive proper notice, pursuant to
8 U.S.C. § 1229(a)(1)? Because the record provides no
evidence of proper service of the amended NTA, as required
by due process, and the IJ ordered Diaz Martinez removed
based on admissions to the charges for which she did not
receive notice, the in absentia removal order was not
supported by substantial evidence. The BIA abused its
discretion in failing to reopen proceedings that had a facially
apparent due process violation and vacate the removal order
that was unsupported by substantial evidence. See 8 U.S.C.
§ 1229a(b)(5)(C).
28 DIAZ MARTINEZ V. BARR
A. Exhaustion
As a threshold matter, Diaz Martinez must preserve
issues for appeal by raising them with the BIA. 8 U.S.C.
§ 1252(d). “[W]e do not employ the exhaustion doctrine in
a formalistic manner, but rather inquire into whether the
issue was before the BIA such that it had the opportunity to
correct its error.” Figueroa v. Mukasey, 543 F.3d 487, 492
(9th Cir. 2008). “[O]ur precedent requires nothing more
than” putting “the BIA on notice” of a challenge such that
the BIA “had an opportunity to pass” on it. Zhang v.
Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004). Of course, each
case turns on its own facts and circumstances. The use of
the phrases “lack of notice” and seeking reopening “at any
time” in briefs to the BIA may be sufficient in some
instances to put the BIA on notice of the statute—8 U.S.C.
§ 1229a(b)(5)(C)(ii)—that provides jurisdiction to reopen a
case for lack of notice at any time. See, e.g., Miller v.
Sessions, 889 F.3d 998, 1001 (9th Cir. 2018).
Diaz Martinez “put the BIA on notice” that she lacked
notice of the amended charges such that the BIA had “an
opportunity to pass” on the issue. See Zhang, 388 F.3d
at 721. In her appeal of the IJ’s denial of her MTR, Diaz
Martinez raised the issue of proper notice: “Notice must be
reasonably calculated to apprise the alien of his or his [sic]
scheduled hearing and the immigration charges against him”
(citing Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950)). Like in Miller, Diaz Martinez’s
language tracked a statute, 8 U.S.C. § 1229(a)(1)(D), which
mandates written notice of “[t]he charges against the alien.”
She further noted that, “[p]ut simply, aliens are entitled to
notice unless they fail to give a current address to the
government or fail to let the government know when they
move.” Diaz Martinez was not required to elaborate further
DIAZ MARTINEZ V. BARR 29
on the lack of notice argument to establish our jurisdiction.
See generally Kaganovich v. Gonzales, 470 F.3d 894, 897
(9th Cir. 2006). Diaz Martinez, therefore, raised and
exhausted the issue of improper notice of the immigration
charges lodged against her before the BIA.
B. Lack of Service of the Amended NTA
Diaz Martinez argues that she was ordered removed on
an ineffective NTA because the Government “did not
properly service [her] with an effective amended NTA.” 8
She contends that the 2007 NTA, for which the issue of
notice is not contested, was subsequently replaced by the
amended NTA, which is dated June 23, 2010. Because
8 C.F.R. § 1240.10 and 8 C.F.R. § 1003.0 require service of
the amended NTA, and due process requires notice, Dobrota
v. INA, 311 F.3d 1206, 1210 (9th Cir. 2002), Diaz Martinez
contends that “the subsequent in absentia removal order is
necessarily ineffective” (citing 8 C.F.R. § 1003.30).
The Government does not refute Diaz Martinez’s
assertions that notice requires proper service of the amended
NTA or that due process requires proper notice. Instead, the
Government argues that her “claims that she was not
properly served with the amended NTA . . . are belied by the
record” and that there is no “absence of evidence of service
of the amended NTA.” The Government characterizes Diaz
Martinez’s brief as claiming that “she was not properly
served with the amended NTA, and that the original NTA is
‘illegible’ and ‘lacks clarity as to the time of the hearing.’”
8
Diaz Martinez also argues that the time listed on the notice of
hearing was illegible. Because the in absentia removal order is invalid
on other grounds, we do not reach whether the notice of hearing provided
sufficient notice as to the date and time of the hearing.
30 DIAZ MARTINEZ V. BARR
The Government cites to the notice of hearing in the record
to support its argument—not the amended NTA.
The Government mistakes proper service of the notice of
hearing with proper service of the amended NTA and the
charges therein. The notice of hearing amended the time and
date of Diaz Martinez’s hearing. The amended NTA,
however, replaced the underlying factual allegations that the
Government lodged against her. Because both documents
substitute elements of the underlying 2007 NTA, section
1229(a)(1) requires for each that “written notice” be given to
an immigrant in removal proceedings. Thus, the
Government’s citation to proper service of the notice of
hearing does not establish proper service of the amended
NTA. 9
Contrary to the Government’s characterization, the
record instead provides no evidence that Diaz Martinez was
served with the amended NTA, as required by 8 U.S.C.
§ 1229(a)(1), 8 C.F.R. § 1240.10, and 8 C.F.R. § 1003.0.
See also Dobrota, 311 F.3d at 1210 (“To comport with due
process requirements, the notice afforded aliens about
deportation proceedings must be reasonably calculated to
reach them.”). The record shows that Diaz Martinez
submitted a change of address form on June 23, 2010, that
the form was received by the IJ, and that Diaz Martinez
certified she had served the Government by mail. Unlike the
change of address form, the amended NTA’s certificate of
service section was not completed. In fact, it included only
Diaz Martinez’s previous address, not the address submitted
on June 23, 2010. The date, the means of service, the
9
The BIA, in affirming the IJ’s denial of Diaz Martinez’s MTR,
similarly only addressed the notice of hearing, concluding it was
properly served, and did not address lack of notice of the amended NTA.
DIAZ MARTINEZ V. BARR 31
signature of Diaz Martinez, and the signature of the
Department of Homeland Security Assistant Chief Counsel
were all left blank. The amended NTA was, however,
stamped as received by the IJ. Notice to Diaz Martinez’s
former address is no notice at all.
Section 1229(a)(1) unambiguously requires written
notice, either through in person service or by mail to the
immigrant or her counsel, of the NTA. Section 1229(a), as
noted supra III.1, is a definitional statute, Pereira, 138 S. Ct.
at 2108, under which the NTA must include the “nature of
proceedings against the alien,” “legal authority under which
the proceedings are conducted,” “acts or conduct alleged to
be in violation of law,” and “charges against the alien and
the statutory provisions alleged to have been violated.”
8 U.S.C. § 1229(a)(1)(A)–(D). The Government amended
the “acts or conduct alleged to be in violation of law,” but
the amended NTA provides no proof of service on Diaz
Martinez.
The IJ received this amended NTA and subsequently
ordered Diaz Martinez removed in absentia. The IJ marked
a box indicating that “[a]t a prior hearing the respondent
admitted the factual allegations in the [charging document]
and conceded removability. I find removability established
as charged.” Diaz Martinez, therefore, was removed without
notice of or admission to the “acts or conducts alleged”
underpinning her removal order. 10 The “removability
10
Diaz Martinez conceded to removability in the first instance with
respect to factual allegations which were not the basis of the actual order.
The factual allegations in the amended NTA were issued “in lieu” of the
factual allegations to which she admitted in the 2007 NTA. The facts in
the 2007 NTA were more specific and included Diaz Martinez’s
nationality and the date, location, and means of her arrival in the United
States. The amended NTA, by contrast, alleged only that Diaz Martinez
32 DIAZ MARTINEZ V. BARR
finding [was thus] unsupported by substantial evidence. As
a result, the IJ was without statutory authority to order [Diaz
Martinez] removed in absentia under 8 U.S.C.
§ 1229a(b)(5)(A)—which requires that removability be
established by ‘clear, unequivocal, and convincing
evidence.’” Al Mutarreb, 561 F.3d at 1031. The court thus
concludes that Diaz Martinez was ordered removed on an
ineffective NTA. 11
entered the United States at an unknown place and time. The amended
NTA, therefore, replaced the specific factual allegations with more
general factual allegations.
“[A]dmissions by an alien to facts alleged in an NTA, and
concessions of removability, made in the 8 C.F.R. § 1240.10(c)
‘pleading stage’ of removal proceedings may be relied on by an IJ.”
Perez-Mejia v. Holder, 663 F.3d 403, 410 (9th Cir. 2011). Because Diaz
Martinez admitted to the specific factual allegations in the 2007 NTA,
she would not have needed to prove those specific facts as part of an
application for relief for removal in a proceeding based on the 2007
NTA. Here, however, the Government replaced the 2007 NTA with the
amended NTA, erasing the facts to which she had pleaded. Under the
amended NTA, she would now need to prove in immigration court her
nationality, date of entry, and status as a minor when she entered to
qualify for certain forms of relief. She could no longer merely admit to
those facts. Thus, by amending the NTA without properly serving Diaz
Martinez, she was deprived of notice of the facts she would need to prove
by means other than admission in seeking relief from removal.
11
As we noted in Raya-Vaca:
[T]here are . . . two types of regulations: (1) those that
protect fundamental due process rights, and (2) and
those that do not. Cf. United States v. Caceres,
440 U.S. 741, 749–53 (1979). The second type of
regulation only implicates due process concerns when
the failure to comply with the regulation causes
prejudice. See id. at 752–53; United States v.
DIAZ MARTINEZ V. BARR 33
Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 1979);
see also Montes-Lopez v. Holder, 694 F.3d 1085, 1093
(9th Cir. 2012) (explaining that the prejudice
requirement in Calderon-Medina applies to the
“violation of a relatively minor procedural rule,” not
“serious” regulatory violations). A violation of the
first type of regulation, however, implicates due
process concerns even without a prejudice inquiry. See
United States v. Reyes-Bonilla, 671 F.3d 1036, 1045–
46 (9th Cir. 2012) (holding, without considering
prejudice apart from the plausibility of relief, that
violation of regulation providing for right to counsel
constituted denial of due process); see also United
States v. Vidal-Mendoza, 705 F.3d 1012, 1015–16 (9th
Cir. 2013) (holding, without prejudice inquiry, that
immigration judge’s failure to inform alien of
eligibility for relief, as required by regulation, violated
due process).
771 F.3d at 1205; see also Noriega-Lopez v. Ashcroft, 335 F.3d 874, 884
(9th Cir. 2003) (where the BIA lacks authority to issue a removal order,
no prejudice showing is required); Lazaro v. Mukasey, 527 F.3d 977, 981
(9th Cir. 2008) (“If the IJ’s amendment of Lazaro’s NTA was ultra vires,
he is not required to show prejudice to the outcome of his proceedings
for relief to be granted.”). We doubt that failure to notify an immigrant
of the charges against her is a “minor” violation of a procedural rule. See
Lazaro, 527 F.3d at 481.
It is clear, moreover, that the due process violation then prejudiced
Diaz Martinez. She “is not required to prove that [s]he would have
received discretionary relief . . . [and] only needs to show that [s]he has
plausible grounds for relief.” United States v. Jimenez-Marmolejo,
104 F.3d 1083, 1086 (9th Cir. 1996). There are “at least three plausible
factors that would support an application for discretionary relief”
through NACARA or cancellation of removal: first, Diaz Martinez has
lived in the United States for the last thirty years, after entering as a
minor in 1989; second, she is a citizen of El Salvador; and third, she is
the mother of five U.S. citizen children, two of whom have health issues
which may demonstrate “an extraordinary need for . . . assistance.” Id.
34 DIAZ MARTINEZ V. BARR
IV. Conclusion
We first answer a question of first impression before our
court: Can a petition for review of an IJ’s final order of
removal, prematurely filed with our court prior to a final
order from the BIA, ripen into an effective appeal pursuant
to Federal Rule of Appellate Procedure 4(a)(2) upon
issuance of a final ruling from the BIA? We determine that
it may. We unanimously conclude that we have jurisdiction
over the petition for review of the first MTR, as the petition
ripened prior to consideration on the merits here.
We next return to the narrow inquiry before us: Did the
BIA abuse its discretion in denying the appeal of an MTR,
where the IJ in the underlying removal proceeding ordered
Diaz Martinez removable in absentia on the basis of an
Furthermore, the removal order, issued without service of the
amended NTA, prejudiced Diaz Martinez because: (1) the failure to
serve her with the NTA deprived her of the opportunity to seek a
continuance, pursuant to 8 C.F.R. § 1003.30, to strengthen her
application for relief from removal in light of the amended factual
allegations; see, e.g., Al Mutarreb, 561 F.3d at 1031 n.9 (9th Cir. 2009)
(“If [the government] had . . . attempted to amend the NTA on the spot
to state additional charges, both the INA and due process would likely
have required that the proceedings be continued while [the government]
issued written notice of the new charges. . . .”); (2) she lacked notice of
the facts she would need to prove to qualify for relief from removal, see
supra n. 11, thus “obscur[ing] the charges against her or obstruct[ing]
her ability to respond to the charges and present her requests for” relief,
Kohli, 473 F.3d at 1068–69, and contravening basic principles of due
process, such as an immigrant’s right “to examine the evidence against
[her and] to present evidence on [her] own behalf.” 8 U.S.C.
§ 1229a(b)(4)(B); Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)
(holding that a full and fair hearing includes “a reasonable opportunity
to present evidence”); and (3) Diaz Martinez’s order of removal was
ultimately not supported by substantial evidence, as it was based on an
ineffective NTA, see Al Mutarreb, 561 F.3d at 1031.
DIAZ MARTINEZ V. BARR 35
amended NTA of which she did not receive proper notice,
pursuant to 8 U.S.C. § 1229(a)(1)? We have considered the
views expressed by the dissent. In the end, we conclude,
respectfully, that the removal order relied on Diaz
Martinez’s admissions to the amended NTA, despite the fact
that she received no notice of and made no admissions to
charges and factual allegations contained in the amended
NTA. Accordingly, the removal order was unsupported by
substantial evidence. We thus grant the petition for review
and remand to the BIA with instructions to reopen the
removal proceedings.
GRANTED, REMANDED.
CLIFTON, Circuit Judge, dissenting:
I agree with the majority opinion that this court has
subject matter jurisdiction over Diaz Martinez’s first motion
to reopen, where Diaz Martinez filed her petition before the
BIA issued a final decision, as discussed in the opinion. I
regret, however, that I must dissent from its ultimate
resolution, for two separate reasons. First, Diaz Martinez
failed to exhaust before the BIA the argument that the
majority opinion relies upon, that the Amended NTA was
ineffective because it was not served on her. Because she did
not present that argument to the agency, she cannot obtain
relief on it here. Second, to obtain relief based on a purported
due process violation, a petitioner must demonstrate that she
suffered prejudice as a result, and Diaz Martinez did not. The
petition for review should be denied.
36 DIAZ MARTINEZ V. BARR
I. Exhaustion
As a general proposition, this court may not reach the
merits of a legal claim not presented in administrative
proceedings below, including due process claims involving
no “more than ‘mere procedural error’ that an administrative
tribunal could remedy.” Barron v. Ashcroft, 358 F.3d 674,
678 (9th Cir. 2004).
At Diaz Martinez’s original removal hearing, the IJ
checked the box that “[a]t a prior hearing the respondent
admitted the factual allegations in the Notice to Appear and
conceded removability. I find removability established as
charged.” The original NTA stated that Diaz Martinez
arrived in the United States at or near San Ysidro, California,
on or about August 25, 1989, and was not admitted or
paroled after inspection. It also alleged she was a native and
citizen of El Salvador. In her motion to change venue
granted May 1, 2007, Diaz Martinez stated that she pleaded
to “all the counts and allegations against her on the charging
document,” including that she arrived in the United States at
or near San Ysidro, California, on or about August 1, 1989.
On June 23, 2010, the government submitted a Form I-
261, Additional Charges of Inadmissibility / Deportability.
The form did not indicate any additional charges being
lodged against Diaz Martinez, but it did include one sentence
in the section entitled: “In support of the additional charge(s)
there is submitted the following factual allegation(s) in lieu
of those set forth in the original charging document.” The
statement was: “You entered the United States at or near an
unknown place on or about an unknown date.” This
document did not check a box indicating how it was
delivered to her, but the address listed is her old address,
which she indicated had changed in a filing to the court the
same day.
DIAZ MARTINEZ V. BARR 37
There were two different arguments Diaz Martinez could
have made regarding lack of notice. One argument, which
she focused on before us, was that she failed to appear at the
October 27, 2010, hearing before the IJ because she was not
given proper notice of her hearing time. The other argument,
upon which the majority opinion relies, was that she was not
given proper notice of the charges against her because the
Amended NTA was not properly served on her, having been
mailed to an address that changed. Diaz Martinez never
made the second argument to the BIA.
The majority opinion begins, on 28, by acknowledging
the exhaustion requirement and follows with a description of
our precedent with which I agree:
“[W]e do not employ the exhaustion doctrine
in a formalistic manner, but rather inquire
into whether the issue was before the BIA
such that it had the opportunity to correct its
error.” Figueroa v. Mukasey, 543 F.3d 487,
492 (9th Cir. 2008). “[O]ur precedent
requires nothing more than” putting “the BIA
on notice” of a challenge such that the BIA
“had an opportunity to pass” on it. Zhang v.
Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004).
Of course, each case turns on its own facts
and circumstances.
But nothing in the actual facts and circumstances of this case
supports a conclusion that the BIA was put on notice of the
argument that the Amended NTA was not served on her.
That argument was never made to the BIA.
Instead, the majority opinion presumes that by making
the first argument regarding lack of notice of the October 27
hearing, Diaz Martinez also exhausted any other argument
38 DIAZ MARTINEZ V. BARR
that includes the magic words “lack of notice.” The majority
opinion argues, at 28, with citation to Miller v. Sessions,
889 F.3d 998, 1001 (9th Cir. 2018), for the proposition that
“the use of the phrases ‘lack of notice’ and seeking
reopening ‘at any time’ in briefs to the BIA may be sufficient
in some instances to put the BIA on notice of the statute—
8 U.S.C. § 1229a(b)(5)(C)(ii)—that provides jurisdiction to
reopen a case for lack of notice at any time.” It concludes, at
28, that this case is like Miller because “Diaz Martinez’s
language tracked a statute, 8 U.S.C. § 1229(a)(1)(D), which
mandates written notice of ‘[t]he charges against the alien.’”
The problem is that Diaz Martinez never complained to the
BIA about a lack of written notice of the charges against her.
Her complaint to the BIA was about a purported failure to
provide notice of the October 27 hearing.
In actuality, Miller illustrates what it means to put the
BIA on notice, which Diaz Martinez did not do. In that case,
the petitioner said she never received mailed notices of her
removal hearing, and she was subsequently ordered removed
in absentia. 889 F.3d at 1000. The government argued the
petitioner could not seek relief under § 1229a(b)(5)(C)(ii)
based on lack of notice because she sought relief before the
IJ under § 1229a(b)(5)(C)(I), which authorizes the filing of
a motion to reopen based on “exceptional circumstances”
rather than a lack of notice. Id. at 1001. As described in our
opinion, it was clear that the argument the petitioner
presented was that her “failure to attend proceedings was due
to lack of notice.” Id. The factual basis for her contention
was plain, even if she may have cited the wrong statutory
provision.
That is not what happened here, however. There is
nothing in the record or Diaz Martinez’s briefs to us that
supports the proposition that she ever argued to the agency
DIAZ MARTINEZ V. BARR 39
that she had not received proper service of the Amended
NTA. In her motion to reopen before the IJ, Diaz Martinez
argued about her failure to receive notice of the hearing, not
any failure to receive notice of the Amended NTA. She made
the same argument in her first motion to reopen before the
BIA. Her second motion to reopen, filed directly with the
BIA, made clear that the “lack of notice” argument presented
to the BIA regarded “whether [Diaz Martinez] received
sufficient notice to apprise her of her hearing date for
October 27, 2010.” There was no reference in that motion to
the Amended NTA or any failure to notify her of the charges.
The majority opinion, at 30, chastises the government for
“mistak[ing] proper service of the notice of hearing with
proper service of the amended NTA and the charges
therein.” Similarly, it observes, at 30 n. 9, that the BIA
“similarly only addressed the notice of hearing, concluding
it was properly served, and did not address lack of notice of
the amended NTA.” But the government’s argument and the
BIA’s discussion make perfect sense because it was the
service of the notice of hearing, not the service of the
Amended NTA, that was the subject of the argument Diaz
Martinez made to the BIA. The majority opinion fails to
point to anything presented by Diaz Martinez that should
have prompted the government and the BIA to discuss notice
of the Amended NTA. The claim that Diaz Martinez had not
been given notice of the October 27 hearing was also the
primary focus of the argument made to us. Before this court,
Diaz Martinez sought to add more arguments, including this
one. Her pro bono counsel on appeal and the students who
participated with him should be commended for their
ingenuity and diligence, but that does not overcome the fact
that those arguments had not previously been presented to
the BIA.
40 DIAZ MARTINEZ V. BARR
In sum, the BIA was not put on notice of the argument
upon which the majority relies to grant the petition for
review. Diaz Martinez’s “failure to assert this claim before
the BIA deprived it of the opportunity to address the issue
and divests us of jurisdiction to review it.” See Segura v.
Holder, 605 F.3d 1063, 1066 (9th Cir. 2010). The majority
opinion acknowledges that the law requires exhaustion.
Holding that use of the term “lack of notice” in an argument
to the BIA opens the door to any argument based on any lack
of notice, even of a document that was not identified to the
BIA, makes a mockery of that exhaustion requirement.
There was no reason for the BIA to consider or comment
upon the purported non-service of the Amended NTA as that
assertion was never made to it.
Miller cannot support the majority opinion’s use of it. It
is one thing to expect the BIA to have knowledge of the
statute it is tasked with interpreting and to be able to identify
the statute that properly applies once the agency has been put
on notice of the facts. It is a very different thing to require
the BIA to discern for itself that there might be facts
contained within the record, not identified to the BIA by the
petitioner, that might support a claim that proper notice had
not been given at some other point in time.
The argument relied upon by the majority opinion was
not exhausted. That should require us to deny the petition.
II. Prejudice
The majority concludes, at 27, that the record provides
no evidence of proper service of the amended NTA “as
required by due process.” Even if Diaz Martinez had
properly exhausted a claim based on failure to serve the
Amended NTA, that claim would fail because she did not
assert, let alone prove, that she was prejudiced, an essential
DIAZ MARTINEZ V. BARR 41
element of a due process claim. In practical terms, the
Amended NTA made no difference in this case.
To prevail on a claimed due process violation, a
petitioner must show prejudice. See Gutierrez v. Holder,
662 F.3d 1083, 1091 (9th Cir. 2011) (“An alien bears the
burden of proving the alleged violation prejudiced his or her
interests.”); United States v. Jimenez-Borja, 378 F.3d 853,
859 (9th Cir. 2004) (upholding a deportation order where the
IJ failed to advise the petitioner of his possible eligibility for
a waiver of deportation because petitioner would not have
been able to make the showing required for the waiver, and
thus “was not prejudiced by the failure to be advised of its
existence.”). Any failure to properly serve the Amended
NTA on Diaz Martinez had no impact on the BIA decisions
before us.
The original charges against Diaz Martinez included the
allegations that she was a native and citizen of El Salvador
and that she entered the United States “at or near San Ysidro,
California, on or about August 25, 1989.” The Amended
NTA replaced those allegations with the allegation that she
had “entered the United States at or near an unknown place
on or about an unknown date.”
The amendment to the allegations could not have had
any impact on the IJ’s finding that Diaz Martinez was
removable. The order of removal entered by the IJ following
her failure to appear for the October 27 hearing noted that at
a prior hearing she had admitted the factual allegations in the
NTA and conceded removability. If she had admitted the
more specific allegations contained in the original NTA, she
necessarily conceded the unspecific allegation in the
Amended NTA. Diaz Martinez never made an argument to
the BIA that she was not, in fact, removable. Nor has she
made any such argument to us. She was not prejudiced by
42 DIAZ MARTINEZ V. BARR
that finding by the IJ that she was removable. We have held
that “due process does not require inclusion of charges in the
NTA that are not grounds for removal but are grounds for
denial of relief from removal.” Salviejo-Fernandez v.
Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006). The majority
opinion does not even try to explain how the finding of
removability could have been affected.
Instead, the majority opinion states, at 32 n. 11, that Diaz
Martinez was prejudiced because her application for
discretionary relief was affected.
How? That is something the majority opinion does not
explain.
It cannot, because the Amended NTA had no impact on
the ability of Diaz Martinez to seek discretionary relief.
Once she had been found removable, a finding she did not
contest, she was permitted to seek discretionary relief. That
was true whether the finding of removal was based on the
original NTA or on the Amended NTA. She had the
opportunity to proceed with that application at the October
27 hearing. The reason she did not pursue that application
was that she failed to appear for the hearing. The Amended
NTA did not cause that failure.
The majority opinion says, at 29 n. 8, that it does not
reach the issue of whether she had been given proper notice
of the October 27 hearing, but that is sophistry. The main
argument presented to us by Diaz Martinez was that she had
not been given proper notice of that hearing. If that argument
had merit, the majority opinion would not take the tortured
path it has adopted. In brief, I note that the IJ and the BIA
had a legitimate basis for denying Diaz Martinez’s first
motion to reopen, based on the failure to support that motion
with evidence despite having been given time to do that. The
DIAZ MARTINEZ V. BARR 43
BIA did not abuse its discretion in denying her later motion
to reopen as both time and number barred. Even if the merits
of the argument were reached, the record reflects that her
attorney was personally served with the notice of the
October 27 hearing, as the majority opinion notes, at 8. That
was sufficient under the law to satisfy the service
requirement.
More to the point, for current purposes, the Amended
NTA had nothing to do with any of this and, in particular,
nothing to do with her failure to obtain discretionary relief.
The “prejudice” hypothesized by the majority opinion is
fantasy.
Perhaps understanding that the case for actual prejudice
is dubious, the majority opinion also appears to suggest, at
32, that no showing of prejudice was required because Diaz
Martinez was ordered removed “on an ineffective NTA.”
The majority opinion then quotes, in a footnote, at 32 n.11,
from United States v. Raya-Vaca, 771 F.3d 1195, 1205 (9th
Cir. 2014), to support an implicit conclusion that Diaz
Martinez should not be required to show any actual prejudice
to obtain relief. That is simply not the law, however. As it
did with the exhaustion requirement, the majority opinion
skirts around the prejudice requirement by misapplying a
precedent.
The Raya-Vaca appeal involved a challenge to a criminal
conviction under 8 U.S.C. § 1326 for unlawful reentry
following a previous order of removal. Id. at 1200. A
defendant charged with that offense may collaterally attack
his previous removal order because that order was a
predicate element to the criminal charge. Id. at 1201.
Raya-Vaca attacked the order in his case, which resulted
from an expedited removal proceeding, on the ground that it
44 DIAZ MARTINEZ V. BARR
was fundamentally unfair because it did not comply with the
requirements of due process. Id. at 1202. Expedited removal
proceedings did not by statute afford him an opportunity for
administrative or judicial review. Id. An immigration officer
was expected to conduct an inspection and determine
whether the alien was inadmissible and subject to expedited
removal. Id. at 1199–1200. The immigration officer was
required by regulation to advise the alien of the charges and
to give the alien an opportunity to respond to the sworn
statement that detailed those charges. Id. at 1200. Even if the
alien was subject to expedited removal, he could obtain
statutory relief in the form of being permitted to withdraw
his application for admission and to depart voluntarily,
without a removal order and without formal immigration
consequences. Id. Raya-Vaca argued that he was never
advised of the charges against him or presented an
opportunity to review the sworn statement prepared by the
immigration officer to support his removal. Id. at 1203.
Our court agreed with the argument, noting that due
process always requires “notice and an opportunity to
respond” and that the “failure to inform Raya-Vaca of the
charge against him and to provide him the opportunity to
review the sworn statement [of the immigration officer]
constituted a violation of Raya-Vaca’s due process rights.”
Id. at 1204. It was in that context that we made the
observation quoted in the majority opinion, at 32 n.11, that
there is a type of regulation “that protect[s] fundamental due
process rights,” distinct from the “‘violation of a relatively
minor procedural rule.’” Id. at 1205 (quoting Montes-Lopez
v. Holder, 694 F.3d 1085, 1093 (9th Cir. 2012)).
But the majority opinion disregards the rest of the Raya-
Vaca opinion, which went on to discuss how the defendant
in that case did, in fact, demonstrate prejudice. Id. at 1206–
 DIAZ MARTINEZ V. BARR 45
11. We observed that a showing of prejudice might not be
required to “show the due process violation itself,” id.
at 1205, but that did not end the inquiry. To obtain relief,
Raya-Vaca still had to show that he had been prejudiced by
the due process violation. “To succeed in demonstrating that
the 2011 expedited removal order was fundamentally unfair,
Raya-Vaca must also establish that he suffered prejudice as
a result of the entry of the order. To do so, Raya-Vaca must
show that he had ‘plausible grounds for relief’ from the
removal order.” Id. at 1206 (citation omitted). We concluded
that he satisfied that requirement because there were grounds
that might have justified relief from the expedited removal
order, if he had understood the charges and been given an
opportunity to respond to them. Thus, “Raya-Vaca has
shown that he had some evidentiary basis for relief from his
2011 removal order.” Id. at 1210. It was on that basis that his
conviction was reversed.
The majority opinion does not discuss that part of Raya-
Vaca. Diaz Martinez is required to demonstrate prejudice to
obtain relief, but she has not suggested any actual prejudice
she suffered due to a failure to serve the Amended NTA on
her. She has not contended that was the reason that she failed
to appear at the October 27 hearing that resulted in the order
of removal in absentia. She had notice of that hearing and, if
she had appeared, the hearing would have provided her with
an opportunity to present her position. Without a showing of
prejudice, our precedent does not permit us to grant her relief
based on purported due process violations that had no
practical impact whatsoever.
Moreover, as should be clear, the facts in our case do not
in the slightest resemble the facts in Raya-Vaca. The
removal order in that case resulted from expedited removal
proceedings in which it appears the alien did not know what
46 DIAZ MARTINEZ V. BARR
was happening. The problem there was not simply a
paperwork glitch. “Even if express notice of the charge of
inadmissibility were not necessary, we do not see how he
could have known the specific charge against him without
being told of it, and Raya-Vaca averred he was unaware that
he was facing a formal removal order based on his lack of
documentation.” Id. at 1206. Diaz Martinez did not make
any similar claim, and she could not, as she was already well
aware that she was charged with having entered this country
without inspection or any lawful authority and had already
conceded removability. The Amended NTA did not alter the
charged basis for her removal at all.
Simply put, Diaz Martinez suffered no prejudice from
the failure to serve her with the Amended NTA. Treating her
claim that she was not properly served with the Amended
NTA as a “violation of fundamental due process rights” that
relieves her from demonstrating prejudice is not supported
by our precedent and guts the well-established requirement
that relief based on a violation of due process requires a
showing of prejudice.
III. Conclusion
I agree that this court has subject matter jurisdiction over
Diaz Martinez’s motions to reopen, but I disagree that she
preserved the argument that she lacked notice of the
amended charges against her, and I further disagree that she
has demonstrated prejudice from the failure to serve her with
the amended charges. I therefore respectfully dissent. The
petition for review should be denied.