Jose Ramos-Portillo v. William Barr, U. S. Atty Ge , 919 F.3d 955 ( 2019 )

Case: 17-60254 Document: 00514897098 Page: 1 Date Filed: 04/01/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-60254
FILED
April 1, 2019
Lyle W. Cayce
JOSE NICOLAS RAMOS-PORTILLO, Clerk
Petitioner,
v.
WILLIAM P. BARR, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
Before JOLLY, ELROD, and WILLETT, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
Jose Nicolas Ramos-Portillo, a native and citizen of El Salvador,
petitions for review of an order of the Board of Immigration Appeals (BIA) that
dismissed his appeal of the denial of his motion to reopen. We deny Ramos-
Portillo’s petition for review.
I.
In 1993, Ramos-Portillo entered the United States without inspection
and was detained by the Immigration and Naturalization Service (INS) near
Laredo, Texas. Immigration officials recorded Ramos-Portillo’s information on
Form I-213, entitled “Record of Deportable Alien,” which listed “Canton
Case: 17-60254 Document: 00514897098 Page: 2 Date Filed: 04/01/2019
No. 17-60254
Paplonia, San Miguel, El Salvador” as his permanent residence but did not
include a U.S. address.
The INS released Ramos-Portillo after personally serving him with an
Order to Show Cause and Notice of Hearing (OSC), written in both English
and Spanish. The OSC informed Ramos-Portillo that he was deportable for
entering without inspection under Section 241(a)(1)(B) of the Immigration and
Nationality Act and that a deportation hearing would “be calendared and
notice provided by the office of the immigration judge.” The OSC also stated
that notice would be “mailed to the address provided by [Ramos-Portillo].” On
its face, the OSC warned Ramos-Portillo that he “DID NOT PROVIDE A
UNITED STATES ADDRESS” and that he was “required by law to provide
immediately in writing an address . . . where [he could] be contacted.”
Immigration officials provided Ramos-Portillo with a Form EOIR-33, entitled
“Change of Address Form,” with which he could provide his current mailing
address to the immigration court. Ramos-Portillo signed a certificate of
service, acknowledging his receipt of the OSC.
During the four-month period after his release, Ramos-Portillo did not
send the Form EOIR-33 to the immigration court and subsequently failed to
appear at his deportation hearing. The immigration judge (IJ) determined that
because Ramos-Portillo “failed to inform the Attorney General of [his] address,
. . . no notice of the deportation hearing could be issued.” Accordingly, the IJ
ordered Ramos-Portillo to be deported in absentia.
More than 22 years later, Ramos-Portillo moved to reopen his
proceedings and to rescind the in absentia deportation order. Ramos-Portillo
insisted that he never received notice of the previous hearing and that there
was no evidence that notice was sent to the Salvadoran address listed on the
Form I-213. Therefore, Ramos-Portillo contended, he had “reasonable cause”
for not appearing at the hearing. The IJ denied his motion, reasoning that the
2
Case: 17-60254 Document: 00514897098 Page: 3 Date Filed: 04/01/2019
No. 17-60254
immigration court was not required to mail the notice of the hearing because
Ramos-Portillo “did not provide his address as required.”
Ramos-Portillo appealed the IJ’s denial of his motion to reopen to the
BIA, which dismissed his appeal. The BIA concluded that “there [was] no
evidence in the record[] that [Ramos-Portillo] provided an address to the
Immigration Court prior to the issuance of his in absentia deportation order”;
and therefore, “no separate notice of the hearing was required to be mailed to
[Ramos-Portillo] by the court.” The BIA further determined that Ramos-
Portillo failed to establish that “providing a foreign address [was] sufficient or
that certified mail could be delivered to a foreign address.” “Even assuming
that a foreign address was acceptable for the purpose of providing notice of his
hearing,” the BIA reasoned that Ramos-Portillo failed to establish that he
provided a valid mailing address. Ramos-Portillo now petitions for review.
II.
We review the denial of a motion to reopen under a highly deferential
abuse-of-discretion standard. Penalva v. Sessions, 884 F.3d 521, 523 (5th Cir.
2018). We uphold the BIA’s decision as long as it is not “capricious, irrational,
utterly without foundation in the evidence, based on legally erroneous
interpretations of statutes or regulations, or based on unexplained departures
from regulations or established policies.” Id. (quoting Barrios-Cantarero v.
Holder, 772 F.3d 1019, 1021 (5th Cir. 2014)). We review the BIA’s legal
conclusions de novo “unless a conclusion embodies the [BIA’s] interpretation of
an ambiguous provision of a statute that it administers; a conclusion of the
latter type is entitled to the deference prescribed by [Chevron].” Singh v.
Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). In reviewing the BIA’s legal
conclusions, if the text of the statute is clear, “that is the end of the matter; for
the court, as well as the [BIA], must give effect to the unambiguously expressed
3
Case: 17-60254 Document: 00514897098 Page: 4 Date Filed: 04/01/2019
No. 17-60254
intent of Congress.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837, 842–43 (1984).
III.
A.
We begin with the relevant statutory framework. Because Ramos-
Portillo’s in absentia proceedings occurred in 1993, we apply the notice
requirement set forth in 8 U.S.C. § 1252b (repealed 1996). Under the former
§ 1252b, an immigration court could order an alien who failed to attend his
deportation hearing to be deported in absentia, if the government established
“by clear, unequivocal, and convincing evidence that the written notice was so
provided and that the alien [was] deportable.” Id. § 1252b(c)(1). To satisfy the
notice requirement, the government must have provided written notice—an
OSC—in person or by certified mail, specifying the time and place of the
hearing and the consequence of failing to attend the hearing.
Id. § 1252b(a)(2)(A).
Section 1252b(a)(1)(F) requires that an OSC further specify:
(i) The requirement that the alien must immediately provide (or
have provided) the Attorney General with a written record of an
address and telephone number at which the alien may be contacted
respecting proceedings under section 1252 of this title.
(ii) The requirement that the alien must provide the Attorney
General immediately with a written record of any change of the
alien’s address or telephone number.
(iii) The consequences . . . of failure to provide address and
telephone information pursuant to this subparagraph.
Id. § 1252b(a)(1)(F). 1 An alien may move to rescind an in absentia deportation
order “upon a motion to reopen filed at any time if the alien demonstrates that
1 The former § 1252b thus sets forth a notice requirement for the government that is
largely identical to the current notice requirement in 8 U.S.C. § 1229a.
4
Case: 17-60254 Document: 00514897098 Page: 5 Date Filed: 04/01/2019
No. 17-60254
the alien did not receive notice in accordance with [§ 1252b(a)(2)].”
Id. § 1252b(c)(3).
In turn, however, an alien has an affirmative duty to provide an
“address . . . at which [she] may be contacted respecting [the deportation]
proceedings,” and any changes of address, to the Attorney General. 2
Id. § 1252b(a)(1)(F). Under the implementing regulation, “[i]f the alien’s
address is not provided on the [OSC], or if the address on the [OSC] is incorrect,
the alien must provide to the [immigration court] where the [OSC] has been
filed, within five days of service of the [OSC], a written notice of an
address . . . on Form EOIR-33, change of address form.”
8 C.F.R. § 3.15(c)(1) (1993).
An alien’s failure to provide an address to the immigration court excuses
the government’s statutory obligation to provide written notice before
initiating an in absentia proceeding. 8 U.S.C. § 1252b(c)(2) (“No notice shall
be required . . . if the alien has failed to provide the address required under
subsection (f)(2) of this section.”). In applying the newer version of the statute,
8 U.S.C. § 1229(a), we have observed time and time again that “an in absentia
removal order should not be revoked on the grounds that an alien failed to
actually receive the required statutory notice of his removal hearing when the
alien’s failure to receive actual notice was due to his neglect of his obligation
to keep the immigration court apprised of his current mailing address.”
Hernandez-Castillo v. Sessions, 875 F.3d 199, 204–05 (5th Cir. 2018) (quoting
Gomez-Palacios v. Holder, 560 F.3d 354, 360–61 (5th Cir. 2009)); see also
Mauricio-Benitez v. Sessions, 908 F.3d 144, 147 (5th Cir. 2018). The same rule
applies to the predecessor statute, 8 U.S.C. § 1252b: an in absentia deportation
2The newer version of the statute imposes the same duty to provide a current mailing
address. 8 U.S.C. § 1229(a)(1)(F); Mauricio-Benitez v. Sessions, 908 F.3d 144, 147 (5th Cir.
2018).
5
Case: 17-60254 Document: 00514897098 Page: 6 Date Filed: 04/01/2019
No. 17-60254
order will not be revoked for lack of notice if the alien failed to provide the
immigration court with his current mailing address. 3 See id. § 1252b(c)(2).
B.
In interpreting § 1252b(a)(1)(F)(i), Ramos-Portillo argues that
§ 1252b(a)(1)(F)(i) plainly allows an alien to satisfy his obligation to provide an
address to the immigration court by providing a foreign address, because
§ 1252b(a)(1)(F)(i) only requires an address “at which the alien may be
contacted,” which could be a foreign or U.S. address. Assuming arguendo that
de novo review applies without any deference to the BIA on its interpretation
of § 1252b, we disagree with Ramos-Portillo that an alien may satisfy his
obligation under § 1252b(a)(1)(F)(i) by providing a foreign address. 4
In interpreting a statute, we do not look at a word or a phrase in
isolation. The meaning of a statutory provision “is often clarified by the
remainder of the statutory scheme . . . because only one of the permissible
meanings produces a substantive effect that is compatible with the rest of the
law.” Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302, 321 (2014) (quoting
United Sav. Ass’n of Tex. v. Timber of Inwood Forest Assocs., Ltd., 484 U.S.
365, 371 (1988)); Matter of Lopez, 897 F.3d 663, 670 n.5 (5th Cir. 2018) (“We
ought to ‘consider the entire text, in view of its structure and of the physical
3 As we observed in Mauricio-Benitez, 908 F.3d at 148 n.1, the Supreme Court’s
decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), has no bearing on this appeal, because
Pereira concerned the stop-time rule for cancellation of removal and this appeal concerns
reopening. “[C]ancellation and reopening are two entirely different proceedings under
immigration law with different standards of review.” Id. Moreover, Pereira’s main thrust
was that “[a] putative notice to appear that fails to designate the specific time or place of the
noncitizen’s removal proceedings is not a ‘notice to appear under [the statute].’ ” 138 S. Ct.
at 2113–14. This appeal does not concern whether Ramos-Portillo’s OSC constituted an OSC
under the statute but rather whether Ramos-Portillo satisfied his duty to provide an address
such that the immigration court was obligated to send another OSC.
4 We need not resort to Chevron deference if “[t]he statutory text alone is enough to
resolve [the question].” Pereira, 138 S. Ct. at 2113–14.
6
Case: 17-60254 Document: 00514897098 Page: 7 Date Filed: 04/01/2019
No. 17-60254
and logical relation of its many parts.’ ” (quoting Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 167 (2012)).
We begin with the text of § 1252b(a)(1)(F)(i). See Christiana Tr. v.
Riddle, 911 F.3d 799, 806 (5th Cir. 2018). Section 1252b(a)(1)(F)(i) requires
not just any “address” or any “address . . . at which an alien may be contacted”;
rather, it requires “an address . . . at which the alien may be contacted
respecting proceedings under section 1252 of this title”—that is, deportation
proceedings. 8 U.S.C. § 1252b(a)(1)(F)(i) (emphasis added).
That the text of § 1252b(a)(1)(F)(i) expressly contemplates that the
address will be used for timely notice for deportation proceedings cuts against
Ramos-Portillo’s argument that a foreign address would suffice.
A “deportation hearing is the usual means of proceeding against an alien
already physically in the United States.” Landon v. Plasencia, 459 U.S. 21, 25
(1982) (emphasis added); see also Deportation, Black’s Law Dictionary (6th ed.
1990) (“The transfer of an alien . . . from the United States to a foreign country.”
(emphasis added)). An alien whom the government seeks to deport from the
United States for unlawfully entering the United States is necessarily found
in the United States. See Landon, 459 U.S. at 25–26 (“[A] deportation hearing
is usually held near the residence of the alien within the United States . . .”).
The proposition that deportation concerns an alien within the United States is
not only supported by “common sense,” Abramski v. United States, 573 U.S.
169, 179 (2014) (looking to “common sense” in addition to other “tools of
divining meaning”), but also by the fact that a separate exclusion process exists
for “an alien outside the United States seeking admission,” Landon, 459 U.S.
at 25. Thus, because § 1252b(a)(1)(F)(i) concerns notifying an alien who is
living in the United States and subject to deportation from the United States,
an “address . . . at which the alien may be contacted respecting [deportation]
proceedings” is a U.S. address.
7
Case: 17-60254 Document: 00514897098 Page: 8 Date Filed: 04/01/2019
No. 17-60254
Other contextual clues similarly support the conclusion that
§ 1252b(a)(1)(F)(i) requires a U.S. address. See Davis v. Mich. Dep’t of
Treasury, 489 U.S. 803, 809 (1989) (observing that courts must examine a
statute “with a view to [the words’] place in the overall statutory scheme”);
United States v. Lauderdale Cty., Miss., 914 F.3d 960, 965 (5th Cir. 2019).
Section 1252b includes the certified-mail provision that requires the
immigration court to provide written notice “by certified mail to the alien or to
the alien’s counsel of record, if any . . . .” 8 U.S.C. § 1252b(a)(1).
Section 1252b(f) further requires a return receipt which must be signed by the
alien or a responsible person at the alien’s address. Id. § 1252b(f); Matter of
Grijalva, 21 I. & D. Dec. 27, 32 (B.I.A. 1999), superseded by 8 U.S.C. § 1229a.
Although Ramos-Portillo contends that the government regularly sends mail
to foreign addresses, he provides no support for the proposition that certified
mail to El Salvador—with return receipt therefrom—is always available. On
the other hand, certified mail to a U.S. address is presumably always available.
Because we favor “[a] textually permissible interpretation that furthers rather
than obstructs the document’s purpose,” Scalia & Garner, Reading Law at 63,
the certified-mail provision also supports interpreting § 1252b(a)(1)(F)(i) as
requiring a U.S. address.
In sum, applying the traditional tools of interpretation to
§ 1252b(a)(1)(F)(i) makes it clear that an alien must provide a U.S. address for
receiving written notice regarding his deportation proceedings.
IV.
We now turn to the BIA’s order dismissing Ramos-Portillo’s appeal. The
BIA determined that Ramos-Portillo failed to satisfy his obligation to provide
an address to the immigration court. For the following reasons, we hold that
the BIA did not abuse its discretion in dismissing Ramos-Portillo’s appeal of
the denial of the motion to reopen.
8
Case: 17-60254 Document: 00514897098 Page: 9 Date Filed: 04/01/2019
No. 17-60254
A.
The BIA did not abuse its discretion in concluding that the information
that Ramos-Portillo provided to immigration officials—the names of his town
and county in El Salvador—did not constitute a valid mailing address “at
which [he] may be contacted respecting [deportation] proceedings.” 8 U.S.C.
§ 1252b(a)(1)(F)(i). It was not irrational or capricious for the BIA to conclude
that Ramos-Portillo—who entered the United States unlawfully, seeking to
work and live in the United States, and whom the government sought to deport
from the United States—could not be contacted in El Salvador regarding his
deportation proceedings that would take place in the United States. See id.
Furthermore, the BIA did not act irrationally by observing that Ramos-
Portillo’s purported address is not a valid mailing address because it only
included the names of his town and county in El Salvador without any street
name or number. Such a facially incomplete set of address information would
reasonably leave one to wonder whether it is even a valid address, much less
an address that can be contacted by certified mail or used for timely notice for
deportation proceedings. Although Ramos-Portillo asserts that his family in
El Salvador could have received mail for Ramos-Portillo, there is no indication
in the affidavit or elsewhere in the record that certified mail could be delivered
to, or that a signed receipt could be returned from, El Salvador. See id.
§ 1252b(a)(1), (f). For these reasons, the BIA did not abuse its discretion in
dismissing Ramos-Portillo’s appeal.
B.
Even assuming arguendo that the town name constituted a valid mailing
address, we hold, in the alternative, that the BIA did not abuse its discretion
in dismissing Ramos-Portillo’s appeal because even though he was served with
an OSC that contained no address, he failed to follow up with an address
9
Case: 17-60254 Document: 00514897098 Page: 10 Date Filed: 04/01/2019
No. 17-60254
pursuant to the governing regulation. 5 Under 8 C.F.R. § 3.15, if an OSC does
not contain the alien’s address, then § 3.15(c) specifically requires the alien to
provide an address by filing a Form EOIR-33 with the immigration court where
the charging document has been filed. Ramos-Portillo’s OSC did not contain
any U.S. or foreign address and unambiguously warned Ramos-Portillo of his
obligation to provide one and the consequences of his failure to do so. However,
Ramos-Portillo filed nothing with the immigration court or any immigration
officials upon release, after the charging document was filed, or during the
four-month period leading up to the in absentia proceeding. See Fuentes-Pena
v. Barr, 917 F.3d 827, 830 (5th Cir. 2019) (discussing the regulatory duty to
provide an address to the immigration court after the charging document is
filed and holding that the provision of change of U.S. address to the
Immigration and Customs Enforcement before the charging document was
filed was adequate). In fact, for over 20 years, Ramos-Portillo made no attempt
to provide the immigration court or any other immigration officials with an
address or even make any inquiries about his proceedings.
We reject Ramos-Portillo’s contention that he satisfied his obligation to
provide an address because immigration officials recorded the name of his
hometown in El Salvador on a Form I-213. Here, regardless of what an
immigration official recorded in his notes, what matters is that Ramos-Portillo
was served with an OSC that did not contain any address but failed to follow
up and provide an address. Given his failure to provide an address pursuant
the governing regulation, the immigration court was not required to mail a
5This alternative holding is not dicta. In this circuit, “alternative holdings are binding
precedent and not obiter dicta.” Whitaker v. Collier, 862 F.3d 490, 496 n.14 (5th Cir. 2017)
(quoting United States v. Bueno, 585 F.3d 847, 850 n.3 (5th Cir. 2009)); see also Texas v.
United States, 809 F.3d 134, 178 n.158 (5th Cir. 2015).
10
Case: 17-60254 Document: 00514897098 Page: 11 Date Filed: 04/01/2019
No. 17-60254
separate notice, and the BIA did not abuse its discretion in dismissing his
appeal.
V.
Ramos-Portillo also asserts that the BIA abused its discretion in
dismissing his appeal as the IJ’s denial of his motion to reopen violates his due-
process right to notice of deportation proceedings. We reject Ramos-Portillo’s
due-process claim. Although Ramos-Portillo is correct that “the Fifth
Amendment entitles aliens to due process of law in deportation proceedings,”
Reno v. Flores, 507 U.S. 292, 306 (1993), “the failure to receive relief that is
purely discretionary in nature does not amount to a deprivation of a liberty
interest,” Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004) (quoting Mejia
Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999)). “[T]he denial of
discretionary relief does not rise to the level of a constitutional violation even
if [the moving party] had been eligible for it.” Altamirano-Lopez v. Gonzales,
435 F.3d 547, 550 (5th Cir. 2006) (second alteration in original) (quoting Finlay
v. INS, 210 F.3d 556, 557 (5th Cir. 2000)). The relief that Ramos-Portillo
seeks—the motion to reopen—is purely discretionary. Id. Accordingly, Ramos-
Portillo had “no liberty interest at stake,” and the BIA did not abuse its
discretion in dismissing his appeal. Hernandez-Castillo, 875 F.3d at 205
(quoting Gomez-Palacios, 560 F.3d at 361 n.2).
VI.
For the foregoing reasons, we DENY Ramos-Portillo’s petition for review.
11