Rosa Amelia Reyes-Almendarez v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15688
________________________
Agency No. A200-118-948
ROSA AMELIA REYES-ALMENDAREZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 2, 2014)
Before HULL and MARCUS, Circuit Judges, and TOTENBERG, ∗ District Judge.
PER CURIAM:
∗
Honorable Amy Totenberg, United States District Judge for the Northern District of
Georgia, sitting by designation.
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Rosa Reyes-Almendarez seeks review of the Board of Immigration
Appeals’s (“BIA”) order affirming the immigration judge’s (“IJ”) denial of her
motion to reopen her in absentia removal proceedings, filed pursuant to 8 C.F.R.
§ 1003.2(c). After review and oral argument, we dismiss in part and deny in part
Reyes-Almendarez’s petition for review.
I. BACKGROUND
A. 2005 Notice to Appear
Reyes-Almendarez is a native and citizen of Honduras. After midnight on
September 12, 2005, Reyes-Almendarez waded across the Rio Grande River near
Brownsville, Texas. Almost immediately upon entry, federal agents arrested
Reyes-Almendarez for illegally entering the United States and advised her of her
rights in her native language.
The border patrol agents then prepared two documents: (1) a Form I-862
Notice to Appear in removal proceedings (“NTA”), and (2) a Form I-213 Record
of Deportable/Inadmissible Alien (“I-213 Form”) summarizing Reyes-
Almendarez’s arrest and brief detention. The NTA, dated September 12, 2005, is
three pages and charged Reyes-Almendarez with removability as an alien who was
present in the United States without being admitted or paroled, under Immigration
and Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). The
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first and third pages of the NTA are signed by Supervisory Border Patrol Agent
Samuel Flores.
The NTA ordered Reyes-Almendarez “to appear before an immigration
judge of the United States Department of Justice at: Martin Luther King Jr. Fed
Bldg 77 Forsyth St SW Rm 112 Atlanta Georgia US 30303.” The NTA noted that
the date and time of Reyes-Almendarez’s removal hearing would be determined at
a later date, and that notice of the hearing would be mailed to the address provided
by Reyes-Almendarez. The NTA listed “86 Pearl Ln. Chamblee Georgia 30341”
as Reyes-Almendarez’s current residence.
A block entitled “Certificate of Service” on the second page of the NTA is
signed by Reyes-Almendarez and bears her fingerprint. 1 The certificate of service
stated that Border Patrol Agent Lance McQueen served the NTA on Reyes-
Almendarez in person on September 12, 2005. The certificate of service also
stated that Reyes-Almendarez “was provided oral notice in the Spanish language of
the time and place of his or her hearing and of the consequences of failure to
appear as provided in section 240(b)(7) of the Act.”
B. I-213 Form
Agent McQueen prepared and signed the I-213 Form on September 12,
2005. According to the I-213 Form, agents gave Reyes-Almendarez a warrant of
1
As discussed later, DHS did not file this certificate of service until Reyes-Almendarez
filed her motion to reopen her removal order.
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arrest/NTA before she was released on her own recognizance around 5:00 A.M. on
September 12, 2005, due to lack of camp space. The I-213 Form stated that Reyes-
Almendarez intended to live and work in Georgia at the following address: 86
Pearl Lane, Chamblee, GA, 30341. Accordingly, as did the NTA above, the I-213
Form listed the Chamblee, GA address as Reyes-Almendarez’s mailing address.
The I-213 Form included a “Failure to Appear” provision, which advised
Reyes-Almendarez of the following: she was required to notify the immigration
court immediately if her mailing address changed; any notice concerning the date,
time, and location of her removal hearing would be mailed to the address she
provided; her actual receipt of the mailed Notice of Hearing (“NOH”) was
unnecessary if she failed to provide a current address; and her failure to appear at
the scheduled hearing could result in the entry of a removal order in her absence.
C. October 2005 Removal Proceeding
On October 18, 2005, the Department of Homeland Security (“DHS”) filed
with the Atlanta immigration court the September 12, 2005 NTA charging Reyes-
Almendarez as removable. As noted above, this NTA had been served on Reyes-
Almendarez at the border on September 12, 2005. However, back in 2005, DHS
did not file the certificate of service executed by Reyes-Almendarez with this
NTA. Instead, DHS filed a certificate of service signed by an individual named
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Andres Olivo Salmeron, indicating that Salmeron was personally served with an
NTA on May 18, 2005.
On August 15, 2006, the immigration court sent an NOH via regular mail to
Reyes-Almendarez at the Chamblee, GA address listed on both the I-213 Form and
the NTA. The NOH scheduled Reyes-Almendarez’s removal hearing for
September 5, 2006, in Atlanta. However, the record indicates that the Postal
Service returned the NOH as undeliverable.
Reyes-Almendarez did not appear at her scheduled hearing. Accordingly,
on September 5, 2006, an IJ ordered Reyes-Almendarez removed in absentia. The
IJ stated that jurisdiction over the matter was established by the filing of the NTA
and by service of the NTA on Reyes-Almendarez. The IJ also found that DHS had
sent to Reyes-Almendarez (at the Chamblee, GA address) written notice of the
date, time, and location of her removal hearing as well as the consequences of
failing to appear, and that DHS established the truth of the factual allegations in the
NTA charging Reyes-Almendarez as removable. Reyes-Almendarez did not
appeal the in absentia removal order to the BIA.
D. 2011 Motion to Reopen
Over five years later, on December 7, 2011, Reyes-Almendarez filed a
counseled motion to reopen proceedings, alleging that she lacked proper written
notice under INA § 239(a)(1), 8 U.S.C. § 1229(a)(1). On July 23, 2011, Reyes-
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Almendarez had been detained by police, at which time she contends that she
learned for the first time about the in absentia removal order against her.
In her 2011 motion to reopen, Reyes-Almendarez argued that DHS filed the
incorrect certificate of service before the removal hearing, and thus failed to show
by clear, unequivocal, and convincing evidence that she was served with the NTA.
She argued that the deficiency in the original 2006 record deprived the IJ of any
“jurisdiction” to proceed in absentia. Although the correct NTA was filed and
even if she had been served with that NTA at the border, Reyes-Almendarez
argued that DHS had not filed the correct certificate of service, and thus the IJ had
no power or jurisdiction to act.
In support of her motion to reopen, Reyes-Almendarez filed documents from
the 2006 record, including: her I-213 Form, the September 12, 2005 NTA, the
certificate of service on Salmeron, and the undeliverable NOH.
Reyes-Almendarez also filed an affidavit, in which she affirmed that,
although she signed some documents while being detained in September 2005, she
“[did] not recall what documents [she] signed and [did] not have any recollection
of any documents being given to [her] upon [her immediate] release.” Reyes-
Almendarez stated that she did not recall receiving the NTA, signing the certificate
of service, or getting any notice of an immigration court hearing. She did not
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know Salmeron, and the Chamblee, GA address listed on the NTA was given to
her brother from someone in Honduras.
Along with her motion to reopen, Reyes-Almendarez filed a change of
address form, dated December 6, 2011. The form replaced the Chamblee, GA
address listed on the I-213 Form and the NTA with an address in Atlanta, GA.
Reyes-Almendarez’s affidavit did not expressly explain why she failed to notify
the immigration court of her address change until over six years after providing the
Chamblee, GA address listed on the NTA and the I-213 Form.
In response to Reyes-Almendarez’s motion to reopen, DHS argued that
(1) notice of the hearing was properly provided to her last known address, and (2) a
complete copy of the NTA, with the correct certificate of service, attached as an
exhibit, clearly showed that Reyes-Almendarez was personally served with the
2005 NTA charging her as removable on September 12, 2005, the day it was
prepared. The complete and correct NTA included a certificate of service bearing
Reyes-Almendarez’s signature and fingerprint. The correct certificate of service
also included the same “Failure to Appear” provision found on the I-213 Form,
which advised Reyes-Almendarez of her obligation to report any change of address
and warned her of the in absentia consequences of a failure to appear at the
hearing.
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On October 22, 2012, a different IJ denied Reyes-Almendarez’s motion to
reopen for two reasons. First, the evidence (including the correct certificate of
service) submitted at the motion to reopen stage showed that Reyes-Almendarez
was personally served with the NTA on September 12, 2005. Personal service on
Reyes-Almendarez was affirmatively established by: (1) the certificate of service
bearing Reyes-Almendarez’s signature and fingerprint, and (2) the I-213 Form
submitted by Reyes-Almendarez herself, which stated that she was given a copy of
the NTA before her release. The IJ rejected Reyes-Almendarez’s jurisdictional
argument, finding that the government cured any defect in the 2006 record by
filing the correct certificate of service in response to Reyes-Almendarez’s motion
to reopen.
Second, personal delivery of the NTA was sufficient to establish actual
notice of removal proceedings regardless of the fact that the Postal Service
returned the NOH as undeliverable to Reyes-Almendarez at the Chamblee, GA
address she gave. Reyes-Almendarez had an obligation to promptly notify the
immigration court of her new address in Georgia and failed to do so until more
than six years after providing the Chamblee, GA address listed in the NTA, to
which her hearing notice was mailed on August 15, 2006.2 Reyes-Almendarez
2
The new address that Reyes-Almendarez gave in 2011—38 Hidden Valley Drive,
Atlanta, GA, 30180—is approximately 50 miles from the Chamblee, GA address she gave in
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also did not explain her failure to update her address or otherwise exercise due
diligence in attempting to resolve her case.
Reyes-Almendarez appealed the IJ’s denial of her motion to reopen to the
BIA. Reyes-Almendarez’s counseled notice of appeal and supporting brief to the
BIA raised two grounds for reopening: (1) the IJ lacked “jurisdiction” to enter the
in absentia removal order because the court record at the time of the order’s
issuance failed to establish service of the NTA on Reyes-Almendarez, and (2)
Reyes-Almendarez did not receive proper notice of her hearing.3
On November 18, 2013, the BIA summarily affirmed the IJ’s denial of
Reyes-Almendarez’s motion to reopen without issuing an opinion, pursuant to
8 C.F.R. § 1003.1(e)(4). Reyes-Almendarez timely filed this petition for review.
II. STANDARD OF REVIEW
Where, as here, the BIA summarily affirms an IJ’s order without opinion, we
review the IJ’s order as the final agency decision. See Alim v. Gonzales, 446 F.3d
1239, 1254 (11th Cir. 2006).
2005 (86 Pearl Lane, Chamblee, GA, 30341). Hidden Valley Drive is technically located in the
city of Villa Rica, GA, west of Atlanta, GA.
3
There is a question whether Reyes-Almendarez adequately raised a due process violation
as a separate issue in her administrative appeal to the BIA. Even assuming the claim was
exhausted, it fails because, as discussed below, (1) the IJ had jurisdiction to proceed in absentia
and (2) Reyes-Almendarez did not show that she lacked written notice.
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We review the IJ’s denial of a motion to reopen for abuse of discretion.
Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Our review is
limited to determining whether the IJ exercised his discretion in an arbitrary or
capricious manner. See id.
In the context of a motion to reopen, whether an alien received sufficient
notice of his removal hearing is an issue of fact. See Contreras–Rodriguez v. U.S.
Att’y Gen., 462 F.3d 1314, 1317 (11th Cir. 2006). “We review administrative fact
findings for substantial evidence,” and an IJ’s factual findings are conclusive
unless the record “compels” reversal. Ayala v. U.S. Att’y Gen., 605 F.3d 941,
947-48 (11th Cir. 2010). Legal determinations are reviewed de novo. Id. at 948.
III. DISCUSSION
We first review the relevant law regarding written notice of a removal
hearing and in absentia removal.
A. Written Notice Requirement
In removal proceedings conducted under § 1229a, an alien must be given
“written notice (in this section referred to as a ‘notice to appear’)” containing
certain information. INA § 239(a)(1), 8 U.S.C. § 1229(a)(1). In relevant part, the
written notice must specify (1) the alien’s obligation to “immediately provide (or
have provided) the Attorney General with a written record of an address” at which
she may be contacted, (2) the alien’s obligation to immediately provide “a written
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record of any change of the alien’s address,” and (3) the consequences under the in
absentia provisions in § 1229a(b)(5) of failing to provide address information.
INA § 239(a)(1)(F), 8 U.S.C. § 1229(a)(1)(F). 4 The written notice must also
include the time and place at which the proceedings will be held and the
consequences under the in absentia provisions of failing to appear as directed.
INA § 239(a)(1)(G), 8 U.S.C. § 1229(a)(1)(G).
Where practicable, the NTA will specify the time, place, and date of the
initial removal hearing. 8 C.F.R. § 1003.18(b). However, if the NTA does not
contain that information, the immigration court is responsible for scheduling the
hearing and providing notice to the parties of the time, place, and date of the
hearing. Id.
The written notice required by § 1229(a)(1) “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).” INA § 239(a)(1), 8 U.S.C.
§ 1229(a)(1). Service by mail of the written notice is sufficient if “there is proof of
attempted delivery to the last address provided by the alien in accordance with
[§ 1229(a)(1)(F)].” INA § 239(c), 8 U.S.C. § 1229(c) (emphasis added).
B. Removal In Absentia
4
The written notice must also include the following: (1) “[t]he nature of the proceedings”;
(2) “[t]he legal authority under which the proceedings are conducted”; (3) “[t]he acts or conduct
alleged to be in violation of law”; (4) “[t]he charges against the alien and the statutory provisions
alleged to have been violated”; and (5) the alien’s rights with respect to counsel. INA
§ 239(a)(1)(A)-(E), 8 U.S.C. § 1229(a)(1)(A)-(E).
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An alien who, after being given the written notice required by § 1229(a)(1),
fails to attend her removal hearing shall be ordered removed in absentia if DHS
establishes by “clear, unequivocal, and convincing evidence” that written notice
was provided to the alien and that the alien is removable. INA § 240(b)(5)(A),
8 U.S.C. § 1229a(b)(5)(A); see also 8 C.F.R. § 1003.26(c) (requiring DHS to
establish that written notice of the time and place of proceedings, as well as the
consequences of failure to appear, was provided to the alien). For in absentia
purposes, written notice is sufficient if sent to the most recent address provided by
the alien under § 1229(a)(1)(F). INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A);
see also 8 C.F.R. § 1003.26(d).
Following entry of an in absentia removal order, an alien may seek
rescission of the order via a motion to reopen by showing that she “did not receive
notice in accordance with [§ 1229(a)(1)].” INA § 240(b)(5)(C)(ii), 8 U.S.C.
§ 1229a(b)(5)(C)(ii). The alien must submit “affidavits or other evidentiary
material” in support of her motion to reopen. INA § 240(b)(5)(C)(ii), (c)(7)(B),
8 U.S.C. § 1229a(b)(5)(C)(ii), (c)(7)(B).
C. Reyes-Almendarez Failed to Show Lack of Written Notice
Here, Reyes-Almendarez argues that the IJ abused his discretion in denying
her motion to reopen because she was not given proper written notice of removal
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proceedings or the statutory obligation to provide the immigration court with an
updated address. The record, however, belies her claims.
In ruling on the motion to reopen, the IJ considered (1) the complete copy of
the NTA submitted by DHS, which included the correct certificate of service
bearing Reyes-Almendarez’s signature and fingerprint, (2) the I-213 Form, which
stated that agents gave her the NTA before her release on September 12, 2005, and
(3) Reyes-Almendarez’s affidavit, in which she merely asserted that she did not
“recall” receiving the NTA. We conclude that substantial evidence supports the
IJ’s findings that Reyes-Almendarez was personally served with the NTA while
detained on September 12, 2005, and that personal service was sufficient to
establish the written notice of removal proceedings required by § 1229(a)(1). See
Ayala, 605 F.3d at 947-48.
Furthermore, Reyes-Almendarez failed to show lack of written notice by
attacking the sufficiency of the subsequent NOH. The NTA initiating her removal
proceedings, which the record indicates Reyes-Almendarez received on September
12, 2005, included the “Failure to Appear” provision advising Reyes-Almendarez
of her statutory obligation to update her address and the in absentia consequences
of failing to do so, in accordance with § 1229(a)(1)(F). Thus, the duty to provide
the immigration court with an updated address attached upon personal service of
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the NTA on Reyes-Almendarez. See Matter of Anyelo, 25 I. & N. Dec. 337,
338-39 (BIA 2010).
Reyes-Almendarez did not provide a change of address pursuant to this
known duty until over five years after her removal hearing, and is therefore
precluded from claiming that she did not receive notice. See Dominguez v. U.S.
Att’y Gen., 284 F.3d 1258, 1260 (11th Cir. 2002) (“[N]otice [mailed] to the alien
at the most recent address provided by the alien is sufficient notice” for in absentia
removal.). Because the immigration court properly mailed the NOH to the most
recent address provided by Reyes-Almendarez—the Chamblee, GA address listed
on the NTA and the I-213 Form—she could not rely on the fact that the NOH was
returned by the Postal Service as undeliverable. See INA § 240(b)(5)(A), 8 U.S.C.
§ 1229a(b)(5)(A). In sum, the IJ was within his discretion in finding that Reyes-
Almendarez received sufficient notice to allow for in absentia proceedings.
D. Jurisdiction
Even if written notice mailed to her Chamblee, GA address was sufficient,
Reyes-Almendarez’s motion to reopen argued that the first IJ lacked “jurisdiction”
in 2006 to order her removed in absentia. Reyes-Almendarez’s motion contended
that, at the time of the September 5, 2006 removal order, the actual administrative
record before the first IJ contained an incorrect certificate of service signed by
Salmeron. In opposition to Reyes-Almendarez’s motion to reopen, DHS filed the
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correct certificate of service signed by Reyes-Almendarez, showing she received
the NTA in 2005. Even though she was in fact served with the NTA back in 2005
when the NTA was filed, Reyes-Almendarez argues that the administrative record
in 2006 did not include the correct certificate of service, and thus the first IJ lacked
“jurisdiction” to act or rule in any way. We disagree.
Congress has granted immigration judges the authority to conduct removal
proceedings under INA § 240, 8 U.S.C. § 1229a. See INA § 101(b)(4), 8 U.S.C.
§ 1101(b)(4); see also INA § 240(a)(1), 8 U.S.C. § 1229a(a)(1). The regulations
governing initiation of these removal proceedings provide that “[e]very removal
proceeding conducted under [§ 1229a] . . . is commenced by the filing of a notice
to appear with the immigration court.” 8 C.F.R. § 1239.1(a).
In addition, the rules of procedure for immigration courts state that
“[j]urisdiction vests, and proceedings before an [IJ] commence, when a charging
document is filed with the Immigration Court by [DHS].” 8 C.F.R. § 1003.14(a)
(located within a subpart entitled “Immigration Court—Rules of Procedure”).
Furthermore, the rules state that “[t]he charging document must include a
certificate showing service on the opposing party pursuant to § 1003.325 which
indicates the Immigration Court in which the charging document is filed.” Id.; see
5
Section 1003.32(a) requires “[a] certification showing service . . . on a date certain [to]
accompany any filing with the [IJ] unless service is made on the record during the hearing.” 8
C.F.R. § 1003.32(a).
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id. § 1003.13 (defining “charging document” to include a NTA and “filing” as the
“actual receipt of a document by the appropriate Immigration Court”).
Here, it is undisputed that DHS filed a charging document—the NTA
against Reyes-Almendarez—with the immigration court on October 18, 2005.
Thus, Reyes-Almendarez’s removal proceedings commenced before the IJ on that
date. Importantly, the record also establishes that Reyes-Almendarez was
personally served with the NTA on September 12, 2005, prior to the
commencement of her removal proceedings on October 18, 2005, and that Reyes-
Almendarez signed the correct certificate of service acknowledging that actual
service.
We recognize that the parties debate whether the filing of the incorrect
certificate of service, as opposed to one Reyes-Almendarez signed, was a claims-
processing error or triggered a lack of jurisdiction that prevented the IJ from acting
at all. See Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16, 126 S. Ct. 1235, 1245
(2006) (absent a clear statement from Congress to the contrary, “courts should treat
the [statutory] restriction as nonjurisdictional in character”); Steel Co. v. Citizens
for Better Env’t, 523 U.S. 83, 90-91, 118 S. Ct. 1003, 1010-11 (1998) (observing
that “jurisdiction” is “a word of many, too many, meanings” and does not always
mean subject matter jurisdiction (quotation marks omitted)); see also Trusted Net
Media Holdings, LLC v. The Morrison Agency, Inc. (In re Trusted Net Media
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Holdings, LLC), 550 F.3d 1035, 1042-46 (11th Cir. 2008) (en banc) (applying
Arbaugh to hold that the prerequisites for commencing an involuntary bankruptcy
petition in 11 U.S.C. § 303(b) were not jurisdictional, in accordance with prior
interpretations of “commencement of a case” language found elsewhere in the
Bankruptcy Code).
We need not characterize the DHS’s administrative error, which occurred
after Reyes-Almendarez was personally served with the NTA and signed the
certificate of service, because the error, in any event, was curable and was cured.
The complete NTA filed in response to Reyes-Almendarez’s motion to reopen
cured the error. Again, Reyes-Almendarez does not deny that she received the
NTA before her removal hearing. To vacate the IJ’s order on the basis of an
administrative paperwork error would be an unduly “mechanical” application of
the procedural rules. See Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210,
1222 (11th Cir. 2009).
IV. CONCLUSION
We conclude that the IJ did not abuse his discretion in denying Reyes-
Almendarez’s motion to reopen for lack of notice. Accordingly, we deny her
petition for review.
PETITION DENIED.
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