Esteban Ramos Sanchez v. U.S. Attorney General

USCA11 Case: 22-11132 Document: 35-1 Date Filed: 03/01/2023 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11132
Non-Argument Calendar
____________________
ESTEBAN RAMOS SANCHEZ,
a.k.a HERMELINDO MENDEZ-TOLCHA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A079-764-686
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2 Opinion of the Court 22-11132
____________________
Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
An Immigration Judge (“IJ”) denied Esteban Ramos
Sanchez’s motion to reopen his in absentia order of removal. The
Board of Immigration Appeals (“BIA”) affirmed. Ramos Sanchez
now seeks review of the BIA’s final order. He argues that the BIA
failed to give reasoned consideration to his claim that he didn’t re-
ceive the notice to appear (“NTA”) and abused its discretion in
denying his motion to reopen his removal proceedings because he
didn’t meet his burden to show lack of receipt. We agree that the
BIA did not give reasoned consideration to his NTA challenge; ac-
cordingly, we need not reach the motion-to-reopen issue.
We review the BIA’s decision as the final judgment and the
IJ’s decision to the extent that the BIA expressly adopted it or relied
on its reasoning. Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860,
872 (11th Cir. 2018).
We review claims of legal error, including claims that the
BIA did not provide reasoned consideration of its decision, de
novo. Id. The BIA’s factual findings are conclusive unless a rea-
sonable factfinder would be compelled to conclude otherwise.
Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003).
Whether a noncitizen received sufficient notice of his removal
hearing is a finding of fact for a motion to reopen. Contreras-Ro-
driguez v. U.S. Att’y Gen., 462 F.3d 1314, 1317 (11th Cir. 2006).
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22-11132 Opinion of the Court 3
The BIA must give reasoned consideration to a petitioner’s
claims. See Lin, 881 F.3d at 874. We inquire only whether the BIA
“considered the issues raised and announced its decision in terms
sufficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted.” Id. (quotation marks omit-
ted). The BIA need not discuss all record evidence, but it must dis-
cuss “highly relevant” evidence, which we have defined as that ev-
idence which would compel a different outcome if considered. Ali
v. U.S. Att’y Gen., 931 F.3d 1327, 1334 (11th Cir. 2019). When the
BIA fails to give reasoned consideration to a petitioner’s claims, we
remand those claims. Jathursan v. U.S. Att’y Gen., 17 F.4th 1365,
1372 (11th Cir. 2021).
A noncitizen who has been given written notice of proceed-
ings and fails to appear may be ordered removed in absentia if the
Department of Homeland Security “establishes by clear, unequiv-
ocal, and convincing evidence” that notice was provided and that
the noncitizen is removable. Immigration and Nationality Act
§ 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). Among other ways, a
noncitizen may seek rescission of an in absentia removal order by
moving to reopen at any time if the noncitizen demonstrates that
he did not receive proper notice of the removal proceedings. Id.
§ 1229a(b)(5)(C)(ii).
Written notice of a hearing may be given by mail. Id.
§ 1229(a)(1). A noncitizen has an affirmative duty to provide the
government with a correct address and must notify the attorney
general within ten days from the date of a change of address. Id.
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4 Opinion of the Court 22-11132
§ 1305(a). Section 1229(a)(1)(F) requires the NTA to inform the
noncitizen of his obligation to update the Attorney General in writ-
ing with any address updates and inform him of the consequences
if he does not update his address. Id. § 1229(a)(1)(F)(ii)–(iii). Writ-
ten notice is considered sufficient “if provided at the most recent
address provided under section 1229(a)(1)(F) of this title.” Id.
§ 1229a(b)(5)(A).
The BIA presumes receipt of notice sent by regular mail—
albeit a weaker presumption than if sent by certified mail—if the
notice was properly addressed and mailed. Matter of M-R-A-, 24 I.
& N. Dec. 665, 673 (BIA 2008). The BIA must consider all relevant
evidence when evaluating whether a noncitizen has rebutted the
presumption of receipt by regular mail. Id. at 674. It may consider
several factors, including:
(1) the respondent’s affidavit; (2) affidavits from fam-
ily members or other individuals who are knowledge-
able 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; . . .
and (7) any other circumstances or evidence indicat-
ing possible nonreceipt of notice.
Id. This is a case-by-case inquiry, and an IJ is “neither required to
deny reopening if exactly such evidence is not provided nor obliged
to grant a motion, even if every type of evidence is submitted.” Id.
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22-11132 Opinion of the Court 5
The BIA failed to give reasoned consideration to Ramos
Sanchez’s challenge to the receipt of his NTA because it did not
discuss highly relevant record evidence. Ramos Sanchez filed an
affidavit in which he claimed that a “notario”—an unlicensed pro-
fessional that helps immigrants file paperwork—submitted the asy-
lum application on his behalf without his knowledge. The notario
was allegedly the one who provided the address to which the NTA
was mailed, not Ramos Sanchez. That calls into question whether
the NTA was mailed to an address that qualifies as an address pro-
vided under section 1229(a)(1)(F) and thus whether the written no-
tice was sufficient. 8 U.S.C. § 1229(a)(1)(F).
The IJ didn’t consider this evidence. The IJ merely held that
“there is no evidence in the record that the NTA was returned,”
and thus that “notice was proper.” The IJ failed to acknowledge
any other record evidence about whether notice was proper, in-
cluding Ramos Sanchez’s affidavit. The BIA adopted the IJ’s order.
Given this lack of reasoned consideration, we grant Ramos
Sanchez’s petition and remand to the BIA. We need not address
whether the BIA abused its discretion in denying his motion to re-
open at this time.
PETITION GRANTED.