Andrei Dragomirescu v. U.S. Attorney General

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13705
____________________
ANDREI DRAGOMIRESCU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A203-043-855
____________________
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2 Opinion of the Court 20-13705
Before NEWSOM, BRANCH, and BRASHER, Circuit Judges.
BRANCH, Circuit Judge:
Andrei Dragomirescu petitions for review of the denial of
his motion to reopen his removal proceedings. After receiving a
notice to appear that initiated his removal proceedings and advised
him of his obligation to keep his address up-to-date with the
Department of Homeland Security (DHS), Dragomirescu moved
and did not send the agency his new address. The immigration
court later sent Dragomirescu a notice informing him of the time
and place of his removal hearing. Since he had moved,
Dragomirescu did not receive that notice. He then failed to show
up at his removal hearing and was ordered removed in absentia.
Dragomirescu asserts that he was improperly ordered
removed in absentia because he did not receive the notice of his
removal hearing the agency was required to provide under the
Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq. We
disagree. Once he received a notice to appear warning him of his
obligation to update the agency when he changed addresses,
Dragomirescu was on the hook to follow through with that
instruction. Because he failed to keep DHS apprised of his
whereabouts, the INA allowed for Dragomirescu’s removal in
absentia even though he never received the later notice informing
him of his removal hearing’s time and place. Dragomirescu’s
removal order complied with the statute’s requirements.
Accordingly, we deny the petition.
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20-13705 Opinion of the Court 3
I.
Andrei Dragomirescu, a native and citizen of Romania, first
entered the United States in 1998. For a time in the early 2010s,
Dragomirescu was a conditional permanent resident, a status he
obtained by virtue of his marriage to a U.S. citizen. In 2013,
Dragomirescu applied to remove the conditions on his permanent
resident status. But he missed the interview with DHS for his
adjustment-of-status request and later divorced. As a result, in
2015, DHS terminated Dragomirescu’s status and he became
removable under 8 U.S.C. § 1227(a)(1)(D)(i).
In January 2016, DHS sent Dragomirescu a notice to appear
initiating his removal proceedings. DHS sent the notice by regular
mail to Dragomirescu’s then-current address in Marietta, Georgia.1
The notice to appear informed Dragomirescu that DHS was
charging him as removable and that his removal hearing would be
held at a time and place “to be set.” It also contained a series of
advisals about Dragomirescu’s responsibility to keep his address
up-to-date with the agency and the potential consequences that
might follow if he did not:
You are required to provide the DHS, in writing, with
your full mailing address and telephone number. You
1
In his brief, Dragomirescu asserts that he “was not residing at [the Marietta]
address at the time the Notice to Appear was mailed there.” There is no record
evidence to support that assertion. At oral argument, Dragomirescu’s counsel
clarified that he was in fact living at the Marietta address in January 2016.
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4 Opinion of the Court 20-13705
must notify the Immigration Court immediately
using Form EOIR-33 whenever you change your
address or telephone number during the course of
this proceeding. You will be provided with a copy of
this form. Notices of hearing will be mailed to this
address. If you do not submit Form EOIR-33 and do
not otherwise provide an address at which you may
be reached during proceedings, then the Government
shall not be required to provide you with written
notice of your hearing. If you fail to attend the
hearing at the time and place designated on this
notice, or any date and time later directed by the
Immigration Court, a removal order may be made by
the immigration judge in your absence, and you may
be arrested and detained by the DHS.
Sometime after DHS sent the notice to appear,
Dragomirescu moved to a new location, but did not inform DHS
or the immigration court of his new address. In August 2017, the
immigration court sent Dragomirescu a notice with the time and
place of his removal hearing. The immigration court sent the
notice of hearing to the same Marietta address it had on file—the
last one Dragomirescu had provided. Naturally, since he no longer
lived there, Dragomirescu did not receive the notice of hearing,
which was returned undeliverable.
In November 2017, an immigration judge conducted
Dragomirescu’s removal hearing. Dragomirescu did not show up,
so the immigration judge conducted the hearing in absentia and
ordered Dragomirescu removed based on evidence of his
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20-13705 Opinion of the Court 5
removability provided by DHS. In December 2017, the
immigration court sent a notice of the removal determination to
the same Marietta address as before. That notice was returned
undeliverable too.
In July 2019, Dragomirescu moved to rescind his in absentia
removal order and reopen his removal proceedings. He alleged
that he had received neither the January 2016 notice to appear that
initiated his removal proceedings, nor the August 2017 notice
setting the time and place of his hearing, and that the removal
order was therefore improper.
An immigration judge denied Dragomirescu’s motion to
reopen his removal proceedings. Dragomirescu appealed that
decision to the Board of Immigration Appeals, which adopted and
affirmed the immigration judge’s decision. The Board noted that
the August 2017 notice setting the time and place of
Dragomirescu’s removal hearing had been returned undeliverable.
However, the Board found that “the evidence show[ed] that the
respondent received” the initial notice to appear that “informed
him of the necessity of informing the Court if his address changed.”
And, the Board found that Dragomirescu had provided no
evidence that “would serve to rebut the presumption” that he
received that initial notice to appear, which was sent to his current
address at the time. The Board ruled that Dragomirescu had
properly been ordered removed in absentia and dismissed the
appeal. This petition followed.
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6 Opinion of the Court 20-13705
II.
Where, as here, the Board “expressly adopts or explicitly
agrees with the Immigration Judge’s opinion . . . we review the
Immigration Judge’s opinion to the extent the [Board] found that
the Immigration Judge’s reasons were supported by the record, and
we review the [Board’s] decision with regard to those matters on
which it rendered its own opinion and reasoning.” Thamotar v.
U.S. Att’y Gen., 1 F.4th 958, 969 (11th Cir. 2021).
“We review the denial of a motion to reopen removal
proceedings for abuse of discretion,” but we review legal
determinations de novo. Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374
(11th Cir. 2007). In evaluating whether the agency abused its
discretion, our “review is limited to determining whether [it]
exercised its discretion in an arbitrary or capricious manner.”
Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
“The moving party bears a heavy burden, as motions to reopen are
disfavored, especially in removal proceedings.” Id. (citations
omitted).
III.
Dragomirescu argues that the immigration judge
improperly ordered him removed in violation of the INA’s
requirements for in absentia removal. As we will explain, we
disagree.
We begin with the relevant legal framework. The INA sets
out an intricate set of procedures for the removal of aliens
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20-13705 Opinion of the Court 7
unlawfully present in the United States. See 8 U.S.C. §§ 1229,
1229a. To start with, the statute provides that an alien has a right
to notice of his removal proceedings. See id. § 1229(a). The statute
contemplates two distinct types of written notice to aliens who are
subject to removal—one of which is sent to the alien in every
removal case, and the other of which may or may not be.
The first type of written notice the statute provides for is the
“notice to appear.” Id. § 1229(a)(1). Akin to a charging document,
the notice to appear is sent to the alien at the outset of his removal
proceedings. Among other things, the notice to appear informs the
alien of the specific charges against him and outlines their legal and
factual basis. Id. § 1229(a)(1)(A)–(D). It informs the alien of the
time and place at which his removal hearing will be held. 2 Id.
2
In earlier times, DHS and its predecessor agency would often send aliens
incomplete notices to appear that left the time and place of the aliens’ removal
hearings blank. See Pereira v. Sessions, 138 S. Ct. 2105, 2111 (2018). Recently,
the Supreme Court has made clear that this approach does not comport with
the INA’s statutory scheme. See id. at 2113–18; Niz-Chavez v. Garland, 141 S.
Ct. 1474, 1480–85 (2021). Instead, the Supreme Court has explained that, to
comply with the statute, the notice to appear must provide, within the four
corners of a single document, all the information the statute requires that it
contain, including the time and place of the removal hearing. See Niz-Chavez,
141 S. Ct. at 1480.
In this case, the January 2016 notice to appear Dragomirescu received was
incomplete under Niz-Chavez’s rule—it was missing the time and place of his
removal hearing. However, that defect is immaterial to our analysis. In
August 2017, the immigration court sent Dragomirescu a separate notice
informing him of the time and place of his removal hearing. And as we explain
below, for in absentia removal, what matters is whether the alien received
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§ 1229(a)(1)(G)(i). It advises the alien of his obligation to keep DHS
apprised of any changes to his address, which ensures that DHS is
able to get in touch with the alien while the removal process is
ongoing. Id. § 1229(a)(1)(F)(i)–(ii). Finally, the notice to appear
warns the alien that, if he fails to keep his address up-to-date with
the agency, the immigration judge can order him removed at a
hearing in his absence. Id. § 1229(a)(1)(F)(iii); see also id.
§ 1229a(b)(5).
The second type of notice the statute provides for is what is
commonly called a “notice of hearing.” See id. § 1229(a)(2). A
notice of hearing is a simpler document than a notice to appear—
mainly, it informs an alien that the time or place of his upcoming
removal hearing has changed. Id. In any particular removal case,
the immigration court may send one or more notices of hearing
updating the time or place of the alien’s removal hearing, or it may
send none.
Turning now to the rules for the removal proceedings
themselves, these proceedings are conducted by immigration
judges who have the power to receive evidence and hear testimony
from the alien and others. Id. § 1229a(a)(1), (b)(1). The alien has
the right to attend his removal hearing and plead his case if he
wishes, either pro se or through counsel. Id. § 1229a(b)(2)(A)(ii),
“notice for the particular hearing that was missed”—which in this case is the
August 2017 notice, not the January 2016 notice. See Dacostagomez-Aguilar
v. U.S. Att’y Gen., 40 F.4th 1312, 1314 (11th Cir. 2022).
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(b)(4). Oftentimes, aliens attend their removal hearings and raise
challenges to their removability.
And what if an alien fails to show up to his removal hearing?
As we have emphasized, “[s]kipping [one’s removal] proceedings is
no way to avoid removal.” Dacostagomez-Aguilar v. U.S. Att’y
Gen., 40 F.4th 1312, 1313–14 (11th Cir. 2022). To ensure that the
removal process is not stymied by aliens playing hide and seek, the
INA sets out procedures for the removal of an alien “in absentia”—
i.e., at a hearing at which the alien is absent. See 8 U.S.C.
§ 1229a(b)(5). The statute provides that an alien who does not
attend his removal hearing “shall be ordered removed in absentia”
as long as the “written notice required under paragraph (1) or (2)
of section 1229(a) of this title”—i.e., the notice to appear or notice
of hearing setting the time and place of the hearing—was provided
to the alien.3 See id. § 1229a(b)(5)(A).
Of course, sometimes an alien, for whatever reason, never
receives notice of his removal hearing’s time and place. Typically,
when that happens, the statute does not allow for in absentia
removal. See id. But what if the reason the alien failed to learn the
time and place of his hearing is because he moved and failed to send
3
Recently, we clarified that the “written notice required under paragraph (1)
or (2)” passage of the in absentia statute operates in the disjunctive, such that—
when an alien was sent both a notice to appear and one or more later notices
of hearing—in absentia removal is warranted as long as the alien received “the
notice for the particular hearing that was missed.” Dacostagomez, 40 F.4th at
1314, 1316–18.
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the agency his new address? The in absentia statute addresses this
situation too, in what we will call its “exception clause”:
No written notice shall be required under
subparagraph [(b)(5)](A) if the alien has failed to
provide the address required under section
1229(a)(1)(F) of this title.
Id. § 1229a(b)(5)(B); see also id. § 1229(a)(2)(B) (similarly stating
that written notice to an alien of a change to the time or place of
his removal hearing “shall not be required . . . if the alien has failed
to provide the address required under [section 1229(a)](1)(F)”).
The exception clause requires some breakdown to understand.
The “written notice . . . required under subparagraph [(b)(5)](A)” is
the notice of the time and place of the alien’s hearing under
§ 1229(a)(1) or (2) that is normally required for in absentia removal.
The “failed to provide the address required under section
1229(a)(1)(F)” language is a reference to the “keep your address up-
to-date or else” advisals in the notice to appear in § 1229(a) that
kicks off the removal proceedings. Putting it all together, and in
plainer terms, here is what the exception clause says: an alien who
does not receive notice of the time and place of his removal hearing
after he moves and fails to send DHS his new address can be
removed in absentia, as long as he at least received the initial notice
to appear advising him of his obligation to keep his address up-to-
date and the consequences of failing to do so. After all, if an alien
fails to tell DHS he has moved after DHS warned him that he must,
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20-13705 Opinion of the Court 11
he has only himself to blame if he fails to receive any later notices
the agency tries to send him.
Notably, in In re G-Y-R-, 23 I&N Dec. 181 (BIA 2001), the en
banc Board adopted this same reading of the exception clause. The
Board found that in absentia removal under the exception clause is
allowed “only if the alien has first been informed of the particular
statutory address obligations associated with removal proceedings
and of the consequences of failing to provide a current address,”
information that is “first communicated in the Notice to Appear.”
Id. at 187. Thus, the Board interpreted the statute to “preclude the
entry of an in absentia order of removal when the alien has not
received the Notice to Appear and thus does not know of the
particular address obligations associated with removal
proceedings.” Id. at 183. The Board’s interpretation of the in
absentia statute is one to which we owe deference. See Castillo-
Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1195 (11th Cir. 2006)
(“[R]eview of the [Board’s statutory] interpretation is informed by
the principle of deference articulated in Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., [467 U.S. 837 (1984)].”).
And for the reasons we have stated, we agree with it. 4
4
We note that in Dominguez v. U.S. Attorney General, 284 F.3d 1258 (11th
Cir. 2002)—a case involving a due process challenge to an in absentia removal
order—we appeared to interpret the exception clause more broadly than the
Board has, to allow for in absentia removal when an alien fails to keep his
address up-to-date with DHS, even if the alien never received a notice to
appear advising him of his obligation to do so . See id. at 1259–61 (noting that
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To recap: as a general rule, an alien may be removed in
absentia if he received notice of the time and place of his removal
hearing and then failed to attend. See 8 U.S.C. § 1229a(b)(5)(A);
Dacostagomez, 40 F.4th at 1316–18. But, as an exception to that
rule, an alien can be removed in absentia without notice of his
removal hearing’s time and place if, after receiving an initial notice
to appear advising him to keep his address up-to-date, the alien
moves and fails to inform DHS of his new address. See 8 U.S.C.
§ 1229a(b)(5)(B).
“an alien has an affirmative duty to provide the government with a correct
address” as a matter of course under a different section of the INA, 8 U.S.C.
§ 1305(a), and broadly stating that “[f]ailing to provide the INS with a change
of address will preclude the alien from claiming that the INS did not provide
him or her with notice of a hearing”).
Dominguez was a due process case in which our statements about the INA’s
statutory requirements for in absentia removal were dicta. See id. There is a
surface-level tension between the Board’s narrower reading of the exception
clause in G-Y-R- and our apparently broader reading of the clause in dicta in
Dominguez. But we think the tension is explained by the fact that the cases
involved different types of challenges to in absentia removal. Dominguez
addressed a constitutional challenge under the Due Process Clause, see id. at
1259, whereas G-Y-R- addressed a statutory challenge under the INA itself. See
23 I&N Dec. at 187. Importantly, the constitutional and statutory
requirements for notice prior to in absentia removal are distinct. The
constitution sets a minimum floor. See Anin v. Reno, 188 F.3d 1273, 1278
(11th Cir. 1999) (“Due process is satisfied if notice is accorded in a manner
reasonably calculated to ensure that notice reaches the alien.” (quotation
omitted) (citing Mullane v. Hanover Bank & Tr. Co., 339 U.S. 306, 318
(1950))). But Congress is free to enact notice requirements going beyond the
Constitution’s guarantees, and in the in absentia removal statute, it has.
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We now turn to applying these rules to the case at hand.
Dragomirescu was ordered removed in absentia at a hearing he
failed to attend. He challenges the propriety of that order under
the INA’s in absentia removal provisions. Under the framework
we have set out, the first question we must answer is whether
Dragomirescu received notice of the time and place of the “hearing
at which he was ordered removed.” See Dacostagomez, 40 F.4th
at 1314. The answer to that question is no. After DHS earlier sent
Dragomirescu an initial notice to appear that left the time and place
of his removal hearing blank, in August 2017, the immigration
court sent him a notice of hearing filling those blanks in. The
notice of hearing was returned undeliverable. It is clear
Dragomirescu did not receive it.
Because Dragomirescu did not receive notice of his removal
hearing’s time and place, we turn to the in absentia statute’s
exception clause—which, again, allows for in absentia removal
without such notice if the alien did not receive the notice after he
moved and failed to update his address with DHS. 8 U.S.C.
§ 1229a(b)(5)(B). As we have explained, in absentia removal under
the exception clause is warranted if the alien received a notice to
appear warning him to keep his address up-to-date and then failed
to do so. Thus, the key question is whether Dragomirescu received
his initial notice to appear containing those address advisals. If he
did, his failure to receive the subsequent notice of hearing after
failing to update his address is on him, not the agency.
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The answer to that question is yes. Although he argues
otherwise, the record shows that Dragomirescu received the notice
to appear DHS sent him in January 2016. DHS sent the notice by
regular mail to Dragomirescu’s then-current address in Marietta,
Georgia. The immigration courts apply a “presumption of receipt
to a Notice to Appear . . . sent by regular mail when the notice was
properly addressed and mailed according to normal office
procedures.” In re M-R-A-, 24 I&N Dec. 665, 673 (BIA 2008). The
Board applied that presumption in this case, finding that this
“evidence show[ed] that the respondent received his [notice to
appear] which informed him of the necessity of informing the
Court if his address changed.” We find no error—and certainly no
abuse of discretion—in the Board’s determination on this point.5
See Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003)
(noting that “[w]e review the denial of a motion to reopen for an
abuse of discretion” and that the immigration courts’ “findings of
fact are conclusive unless a reasonable factfinder would be
compelled to conclude to the contrary”).
In the agency proceedings, Dragomirescu sought to rebut
the presumption that he received his notice to appear. See M-R-A-,
5
Dragomirescu notes that there was a typo in his address on the notice to
appear DHS prepared—the agency added a second “r” in the city
Dragomirescu lived in, misspelling it “Marrietta.” The Board found it
appropriate to apply a presumption of delivery notwithstanding the extra “r.”
The Board did not abuse its discretion in doing so. We also think the errant
consonant would not have confused the postman.
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24 I&N Dec. at 673–74 (noting that an alien may seek to rebut the
presumption that he received a notice sent by regular mail to the
correct address with an affidavit or other evidence). Dragomirescu
noted that he acted diligently in moving to reopen his removal
proceedings after he learned of his in absentia removal and that he
“had every incentive” to “attend court” and challenge his
removability—factors that, under the Board’s precedents, weigh
against the presumption of delivery. See id. (providing that, “[i]n
determining whether a respondent has rebutted” the presumption
of delivery of a notice sent by regular mail, the immigration court
“may consider a variety of factors, including . . . the respondent’s
actions upon learning of the in absentia order, and whether due
diligence was exercised”). The Board found these arguments
unpersuasive, weighing more heavily the fact that Dragomirescu
“did not submit an affidavit from either himself or friends which
would serve to rebut the presumption of delivery.” We cannot
conclude that this determination was an abuse of discretion either.
Thus, we do not disturb the agency’s conclusion that
Dragomirescu received the notice to appear that advised him of his
obligation to keep his address up-to-date. The record supports that
finding.
After Dragomirescu received his notice to appear at his then-
current address in Marietta, there is no dispute that he later moved
and failed to inform DHS of his new address—which is why he
failed to receive the notice of hearing the immigration court later
sent to the same address. Because Dragomirescu “failed to provide
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the address required under section 1229(a)(1)(F),” he was properly
ordered removed under the in absentia statute’s exception clause.
8 U.S.C. § 1229a(b)(5)(B). Dragomirescu has provided no grounds
to reopen his removal proceedings.
PETITION DENIED.