Gualterio Santos-Santos v. William P. Barr , 917 F.3d 486 ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0031p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GUALTERIO LAZARO SANTOS-SANTOS, ┐
Petitioner, │
│
> No. 18-3515
v. │
│
│
WILLIAM P. BARR, Attorney General, │
Respondent. │
┘
On Petition for Review from the Board of Immigration Appeals;
No. A 076 973 587.
Decided and Filed: February 28, 2019
Before: SILER, COOK, and BUSH, Circuit Judges.
_________________
COUNSEL
ON BRIEF: David W. Williams, Santa Ana, California, for Petitioner. Jeffery R. Leist,
Anthony C. Payne, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
_________________
OPINION
_________________
SILER, Circuit Judge. Gualterio Lazaro Santos-Santos petitions for review of a 2018
order by the Board of Immigration Appeals (“Board”) that affirmed an immigration judge’s
(“IJ”) decision denying the motion to reopen an in absentia removal order entered against
Santos-Santos in 2000. Santos-Santos argues that the Notice to Appear (“NTA”)1 served on him
1Unless otherwise indicated, we use the term Notice to Appear and NTA referred to in 8 C.F.R.
§§ 1003.13–15.
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did not include the “date, time, and place” at which he was required to appear, and the IJ
therefore had no jurisdiction to enter a removal order. We DENY the petition.
I.
Santos-Santos, a citizen of Mexico, entered the United States without inspection near
Nogales, Arizona, in 1999. On March 6, 2000, he and his wife attempted to enter Canada from
Port Huron, Michigan, but were denied admission by Canadian immigration authorities and
directed back to Port Huron. They were referred to secondary inspection and questioned as to
their citizenship and status in the United States. Both admitted to being citizens of Mexico and
entering the United States illegally. Santos-Santos said he illegally resided in Chicago, Illinois.
The Immigration and Naturalization Service (“INS”) personally served Santos-Santos with an
NTA, charging him with inadmissibility under the Immigration and Nationality Act (“INA”)
§ 212(a)(6)(A)(i),2 and ordering him to appear for a hearing in Detroit. The NTA listed his
address as “2444 South Troy, Chicago, Illinois, 60623,” and indicated that the date and time of
the hearing was “to be determined.” On May 19, a “Certificate of Service of Charging
Document with the Immigration Court” was issued to Santos-Santos at the same address,
informing him that the NTA had been sent to the Detroit immigration court. On May 24, the
Detroit immigration court issued a Notice of Hearing ordering him to appear on October 20,
2000; it was mailed to Santos-Santos at “2444 South Troy, Chicago, IL 60623.” Santos-Santos
failed to appear at his October 20, 2000, hearing and was ordered removed in absentia. The
order was mailed to the same address. Santos-Santos claims he did not receive the in absentia
order and only learned of it when he was involved with immigration proceedings in Los Angeles.
In 2018, Santos-Santos, through counsel, filed a motion to reopen the in absentia order
with the immigration court. Santos-Santos argued that he never received notice of his hearing
date, and that “[t]he record is silent as to whether the Service even attempted to provide
Respondent with a Notice of Hearing.” He further contended that, because the NTA did not
include the date and time of his hearing, it was facially defective, rendering the proceedings void
ab initio. In an attached declaration, Santos-Santos said that while he received the NTA that
2Immigration and Nationality Act, Pub. L. No. 89-236, 79 Stat. 911, 917–18 (Oct. 3, 1965) (codified as
amended at 8 U.S.C. § 1182(a)(6)(A)(i)).
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stated the date and time of the hearing were to be determined, he did not receive any other
notices.
The Department of Homeland Security (“DHS”)3 filed a response in opposition to
Santos-Santos’s motion. It noted that a Notice of Hearing was sent on May 24, 2000 instructing
Santos-Santos to appear on October 20, 2000. DHS contended, inter alia, that the presumption
of regularity established that the notice was properly delivered and Santos-Santos had not
adequately rebutted that presumption. DHS further argued that Santos-Santos failed to cite any
authority supporting his argument that a lack of date and time of the hearing on the NTA meant
that the IJ did not properly exercise jurisdiction over his case.
The IJ denied the motion to reopen for “the reasons stated in the opposition to the
motion.” Santos-Santos petitioned the Board, reiterating his claim that he never received notice
of the hearing and the IJ erred in exercising jurisdiction. The Board dismissed the appeal on
May 2, 2018, finding that there was no evidence that either the NTA or the in absentia order was
returned to the immigration court. Further, the Board noted that Santos-Santos did not (1) argue
that the notice was addressed incorrectly, (2) claim that he was having mail delivery problems at
that address, (3) initiate proceedings to obtain relief, or (4) report what efforts he took to
determine the status of his proceedings in the interim seventeen years before his motion to
reopen. The Board also determined that an NTA need not include the time and date of a removal
hearing, and that the statutory notice requirements may be satisfied when the information is
provided in a subsequent notice. Finally, the Board concluded that Santos-Santos had not shown
that sua sponte reopening of his proceedings was warranted. This petition for review followed.
II.
“A motion to reopen is a form of procedural relief that asks the Board to change its
decision in light of newly discovered evidence or a change in circumstances since the hearing.”
Dada v. Mukasey, 554 U.S. 1, 12 (2008) (internal quotation marks omitted). We review the
Board’s denial of such a motion for abuse of discretion. Camaj v. Holder, 625 F.3d 988, 991
3On March 1, 2003, the INS ceased to exist and its functions were absorbed by DHS. See Homeland
Security Act of 2002, Pub. L. No. 107-296, 110 Stat. 2135 (Nov. 25, 2002).
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(6th Cir. 2010). The Board abuses its discretion only when its determination was made “without
a rational explanation, inexplicably departed from established policies, or rested on an
impermissible basis such as invidious discrimination against a particular race or group.” Id.(quoting Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006)). When the Board provides its
own reasoning for affirming the denial of relief, we review only the Board’s decision, but to the
extent that the Board adopts the reasoning of the IJ, we also review that decision. Thompson v.
Lynch, 788 F.3d 638, 642 (6th Cir. 2015) (citation omitted); Al-Ghorbani v. Holder, 585 F.3d
980, 991 (6th Cir. 2009). Our review of an in absentia order is limited to: (1) the validity of the
notice provided to the alien, (2) the reasons for the alien’s not attending the proceedings, and (3)
whether the alien is removable. 8 U.S.C. § 1229a(b)(5)(D); Ba v. Holder, 561 F.3d 604, 606 (6th
Cir. 2009) (citation omitted).
III.
Relying on Pereira v Sessions, 138 S. Ct. 2105 (2018), Santos-Santos argues that the
NTA was facially deficient due to the lack of a time and place of the hearing. This deficiency,
Santos-Santos contends, renders the removal proceedings void ab initio because the IJ was never
properly vested with jurisdiction.
Pereira is distinguishable: that case (1) dealt with whether the narrow “stop-time” rule
can be triggered by an NTA omitting the time and place of the initial hearing, and (2) addressed
two statutory provisions distinct from the regulations at issue here. 138 S. Ct. at 2110, 2113–16;
Hernandez-Perez v. Whitaker, 911 F.3d 305, 314 (6th Cir. 2018). Contrary to Santos-Santos’s
argument regarding jurisdiction, we have recently held that “jurisdiction vests with the
immigration court where . . . the mandatory information about the time of the hearing, see 8
U.S.C. § 1229(a), is provided in a Notice of Hearing issued after the NTA.” Hernandez-Perez,
911 F.3d at 314–15. As the Notice of Hearing containing the requisite information was sent to
Santos-Santos—notwithstanding Santos-Santos’s claim that he did not receive the notice,
addressed below—the IJ properly exercised jurisdiction.
Alternatively, we find that the INA contains language regarding “proceedings for
deciding the inadmissibility or deportability of an alien[,]” but does not address jurisdictional
No. 18-3515 Santos-Santos v. Barr Page 5
prerequisites. See 8 U.S.C. § 1229a. Rather, the INA allows the Attorney General to promulgate
regulations to govern removal hearings, which include provisions for when and how jurisdiction
vests with the IJ. 8 U.S.C. §§ 1103(g)(2), 1229a(a); 8 C.F.R. §§ 1003.13, 1003.14(a). These
regulations provide that “[j]urisdiction vests, and proceedings before an Immigration Judge
commence, when a charging document is filed with the Immigration Court by the [INS].”
8 C.F.R. § 1003.14. For proceedings like Santos-Santos’s, which were initiated after April 1,
1997, the “charging document” includes “a Notice to Appear,4 a Notice of Referral to
Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien.”
8 C.F.R. § 1003.13. The regulation does not cross-reference 8 U.S.C. § 1229(a)(1)’s definition
of a written “notice to appear.” Instead, the regulations stipulate that an NTA, for purposes of
vesting jurisdiction, must contain: (1) the nature of the proceedings against the alien; (2) the legal
authority under which the proceedings are conducted; (3) the acts or conduct alleged to be in
violation of law; (4) the charges against the alien and the statutory provisions alleged to have
been violated; (5) notice that the alien may be represented, at no cost to the government, by
counsel or other authorized representative; (6) the address of the Immigration Court where the
INS will file the show cause order and NTA; (7) a statement that the alien must advise the
Immigration Court of his or her current address and telephone number, and a statement that
failure to do so may result in an in absentia hearing under 8 C.F.R. § 1003.26. 8 C.F.R.
§ 1003.15(b). An NTA for removal proceedings must also include the alien’s name and any
known aliases, the alien’s address, the alien’s registration number, the alien’s alleged nationality
and citizenship, and the language that the alien understands. 8 C.F.R. § 1003.15(c). Failure to
include this information, however, “shall not be construed as affording the alien any substantive
or procedural rights.” 8 C.F.R. § 1003.15(c). No references to the time and place of the hearing
4It bears mentioning that the “Notice to Appear” in 8 C.F.R. §§ 1003.13–14 is different from the “Notice to
Appear” in 8 U.S.C. § 1229(a)(1). Unlike a Notice to appear in 8 U.S.C. § 1229(a)(G)(i), which requires that the
“time and place at which the proceedings will be held” be included in the notice, the Notice to Appear under 8
C.F.R. § 1003.15 does not have this requirement. Although the contents of the two documents might be different,
this does not mean that the regulation contradicts the statute. Nothing in 8 U.S.C. § 1229 or elsewhere in the code
requires the Notice to Appear specified in § 1229(a)(1) to commence immigration proceedings and vest jurisdiction
with the IJ. Even though one might question the agency’s wisdom in referring to the document in 8 C.F.R.
§§ 1003.13–15 as a Notice to Appear in an effort to avoid conflating the two types of Notices to Appear, its
regulations are consistent with the statute. See Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S.
519, 543 (1978).
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are required to vest jurisdiction under the regulation. The NTA served on Santos-Santos and
filed with the immigration court contained all of the requisite information and satisfies the
regulation’s definition of a “notice to appear.” Karingithi v. Whitaker, 913 F.3d 1158, 1159-62
(9th Cir. 2019) (“The regulatory definition, not the one set forth in § 1229(a), governs the
Immigration Court’s jurisdiction. A notice to appear need not include time and date information
to satisfy this standard. [The petitioner’s] notice to appear met the regulatory requirements and
therefore vested jurisdiction in the IJ.”).
Considered under either argument, Santos-Santos’s position regarding jurisdiction is thus
unpersuasive.
IV.
In the alternative, the United States argues that Santos-Santos has failed to meet his
burden of proving that he did not receive proper notice of his October 20, 2000 hearing,
rendering the denial of the motion to reopen proper.
Santos-Santos bears the burden of demonstrating that he did not receive proper notice of
the hearing. 8 U.S.C. § 1229a(b)(5)(C); Scorteanu v. INS, 339 F.3d 407, 411 (6th Cir. 2003)
(“[I]n seeking recision of an in absentia deportation order, the burden rests on the movant to
demonstrate . . . improper notice . . . .”). We review de novo the adequacy of notice, but “accord
a great deal of deference to the Attorney General’s and the [Board]’s permissible constructions
of the statute which they administer.” Soumah v. Holder, 403 F. App’x 999, 1001 (6th Cir.
2010) (citations omitted); Mota-Roman v. Holder, 331 F. App’x 379, 382 (6th Cir. 2009)
(citations omitted).
As an initial matter, Santos-Santos has forfeited any challenge to the Board’s
determination that he failed to overcome the presumption of delivery of the notice of his hearing.
Ramani v. Ashcroft, 378 F.3d 554, 558 (6th Cir. 2004) (holding that “[i]t is proper for an
appellate court to consider waived all issues not raised in an appellant’s briefs”). The only
mention of the notice in his briefing are: (1) a statement that he “did not receive notice of
hearing[,]”; (2) a heading under “Issues Presented” noting “Whether Appellant Received Notice
of Hearing” without further development; and (3) the unsupported claim that “the file provided
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by USCIS clearly establishes that the government took no steps to notify Respondent of his
hearing.”
Even if we proceed to consider the merits, we still conclude that the Board did not abuse
its discretion in determining Santos-Santos failed to meet his burden to prove he did not receive
proper notice. As explained below, notice may be given pursuant to either paragraph (1) or
paragraph (2) of section 1229(a). Although Santos-Santos may have met his burden in showing
that he did not receive a notice in accordance with paragraph (1), he did not meet his burden to
show lack of notice in accordance with paragraph (2).
Under the immigration statute, an alien must be provided written notice of his or her
removal proceeding. See 8 U.S.C. § 1229(a)(1). The statute also authorizes IJs to issue orders of
removal in absentia if the alien fails to appear at the removal proceedings. Id. § 1229a(b)(5)(A).
An order of removal in absentia, however, can be issued only when “[a]ny alien, who after
written notice required under paragraph (1) or (2) of section 1229(a) of this title has been
provided to the alien or the alien’s counsel of record, does not attend a proceeding under this
section . . . if [DHS] establishes by clear, unequivocal, and convincing evidence that the notice
was so provided and that the alien is removable.” Id. (emphasis added). The statute also allows
aliens to challenge their orders of removal in absentia. Id. § 1229a(b)(5)(C)(ii). Orders of
removal in absentia may be rescinded only “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.” Id. (emphasis added). Thus, for proceedings involving an in
absentia removal order, a prerequisite for a properly issued order is that there be a sufficient
showing that the alien received notice under either paragraph (1) or paragraph (2) of section
1229(a). DHS bears the burden of proving by clear and convincing evidence that notice was
given in order to obtain an in absentia removal order. But once the order has been issued, the
alien has the burden to prove the absence of notice in order to set that order aside.
As noted in § 1229(a), there are two different types of written notices. The written notice
in paragraph (1) of section 1229(a) (i.e., the “Notice to Appear”) mandates that the notice
“contain certain required elements, including the nature of the proceedings, the conduct alleged
to be in violation of the law, and the date, time, and location of the proceedings.” Ba, 561 F.3d
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at 606 (citation and internal quotation marks omitted). A written notice to the alien or his
counsel in accordance with paragraph (2) of section 1229(a), though similar to the notice
described in paragraph (1), must specify “the new time or place of the proceedings, and the
consequences under section 1229a(b)(5) of this title of failing, except under exceptional
circumstances, to attend such proceedings.” 8 U.S.C. § 1229(a)(2)(A)(i)–(ii).
Santos-Santos, an alien who seeks to rescind the in absentia removal order, bears the
burden to prove that there was no notice under either paragraph (1) or paragraph (2) of section
1229(a). Santos-Santos met his burden to show that he did not receive notice in accordance with
paragraph (1). Santos-Santos’s notice to appear did not satisfy the requirements of paragraph
(1) because it did not include the date and time of the removal proceeding. But Santos-Santos
must also show that he did not receive notice in accordance with paragraph (2) of section
1229(a). 8 U.S.C. § 1229a(b)(5)(C)(ii). Because Santos-Santos’s Notice of Hearing in Removal
Proceedings meets the requirements of paragraph (2), Santos-Santos must rebut the presumption
by showing that he did not actually receive this notice, as the notice was purportedly mailed to
his listed address. See Scorteanu, 339 F.3d at 411. Santos-Santos fails to overcome this
presumption.
We have previously considered the following non-exhaustive list of potential evidence:
(1) the respondent’s affidavit; (2) affidavits from family members or other
individuals who are knowledgeable about the facts relevant to whether notice was
received; (3) the respondent’s actions upon learning of the in absentia order, and
whether due diligence was exercised in seeking to redress the situation; (4) any
prior affirmative application for relief, indicating that the respondent had an
incentive to appear; (5) any prior application for relief filed with the Immigration
Court or any prima facie evidence in the record or the respondent’s motion of
statutory eligibility for relief, indicating that the respondent had an incentive to
appear; (6) the respondent’s previous attendance at Immigration Court hearings, if
applicable; and (7) any other circumstances or evidence indicating possible
nonreceipt of notice.
Thompson, 788 F.3d at 643 (citation omitted). Santos-Santos’s motion to reopen and affidavit
stated that he did not receive the NTA, but provided no other evidence supporting his claim of
nonreceipt. Santos-Santos presented no evidence that he was not removable as charged or that
he was eligible for or had pending applications for relief. Further, he has presented no evidence
No. 18-3515 Santos-Santos v. Barr Page 9
that he had difficulties receiving mail at that address of record or that any of the notices and
order were returned as undeliverable. See Ly v. Holder, 327 F. App’x 616, 622–23 (6th Cir.
2009) (finding Petitioner failed to rebut presumption that he received notice to appear when he
did not present evidence that mail was returned as undeliverable to the listed address). We
therefore conclude that Santos-Santos failed to rebut the presumption of delivery and affirm the
denial of the motion to reopen.
PETITION FOR REVIEW DENIED.