Melida Luna-Garcia v. William Barr, U. S. Atty Gen

Case: 16-60847 Document: 00515046395 Page: 1 Date Filed: 07/23/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-60847
Fifth Circuit
FILED
July 23, 2019
Lyle W. Cayce
MELIDA TERESA LUNA-GARCIA, Clerk
Petitioner,
v.
WILLIAM P. BARR, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of Order
of the Board of Immigration Appeals
Before JOLLY, ELROD, and WILLETT, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
The panel opinion previously issued in this case is withdrawn, and the
following opinion is substituted in its place.
Melida Teresa Luna-Garcia, a citizen of Guatemala, petitions for review
of an order of the Board of Immigration Appeals (BIA) dismissing her appeal
of the denial of her motion to reopen. For the following reasons, we deny her
petition for review.
I.
In 2004, Luna-Garcia entered the United States without inspection and
was detained shortly thereafter. The Border Patrol issued a Notice to Appear
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(NTA) and initiated removal proceedings against Luna-Garcia. The NTA
noted that Luna-Garcia “FAILED TO PROVIDE A US ADDRESS.” Other
Border Patrol records (Form I-213) listed a San Antonio address “c/o
[Immigration and Naturalization Service (INS)]” as a United States address
and a Guatemalan village “Aldea El Zarzal, Mun. de San Reymundo” as Luna-
Garcia’s “permanent residence.” The NTA informed Luna-Garcia that she was
“required to provide the [INS], in writing, with [her] full mailing address and
telephone number” and to “notify the Immigration Court immediately by using
Form EOIR-33 whenever [she] change[s] [her] address or telephone number.”
The NTA explained that she “will be provided with a copy of [Form EOIR-33]”
and that “[n]otices of hearing will be mailed to this address.” Finally, the NTA
warned Luna-Garcia that “[i]f [she] do[es] not submit Form EOIR-33 and do[es]
not otherwise provide an address at which [she] may be reached during
proceedings, then the Government shall not be required to provide [her] with
written notice” and that the immigration judge (IJ) may order her removed in
absentia. Luna-Garcia signed a certificate of service, acknowledging personal
service of the NTA. Upon release, Luna-Garcia never followed up with the
immigration court to provide an address.
On June 10, 2004, an IJ held a hearing, but Luna-Garcia failed to appear.
The IJ found that “[a] notice of the hearing was . . . not given to [Luna-Garcia]
because [she] failed to provide the court with [her] address as required under
[8 U.S.C. § 1229(a)(1)(F)] after having been advised of that requirement in the
[NTA].” The IJ consequently ordered Luna-Garcia removed in absentia.
In November 2015, Luna-Garcia filed a motion to reopen and rescind her
2004 in absentia removal order on the grounds that she did not receive notice
of her removal proceedings. The IJ denied her motion to reopen because Luna-
Garcia, despite knowing that her NTA did not include any address, had made
no effort for over a decade to provide an address. The IJ also observed that
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providing a Guatemalan address was inadequate because Luna-Garcia had no
plans to return to Guatemala but instead was traveling to New York to seek
employment. The BIA affirmed the denial of her motion to reopen after
observing that Luna-Garcia “cite[d] to no authority to support her argument
that a foreign address is sufficient, especially when the NTA calls for a U.S.
form of address.” Luna-Garcia filed a petition for review before this court. 1
II.
“[W]e review BIA denials of [motions to reopen] under a ‘highly
deferential abuse-of-discretion standard.’ ” Mauricio-Benitez v. Sessions, 908
F.3d 144, 147 (5th Cir. 2018) (quoting Hernandez-Castillo v. Sessions, 875 F.3d
199, 203 (5th Cir. 2017)). We may overturn a BIA decision only if it is
“capricious, without foundation in the evidence, or otherwise so irrational that
it is arbitrary rather than the result of any perceptible rational approach.” Id.
(quoting Hernandez-Castillo, 875 F.3d at 203). “We review the BIA’s rulings
of law de novo . . . .” 2 Lopez Ventura v. Sessions, 907 F.3d 306, 310 (5th Cir.
2018).
1 In a separate set of petitions for review docketed as No. 15-60526, Luna-Garcia
collaterally attacked the same underlying removal order, sought withholding of removal as
well as relief under the Convention Against Torture (CAT), and challenged the BIA’s denial
of her motion to reopen based on allegedly new evidence. Luna-Garcia v. Barr, No. 15-60526,
2019 WL 1758871, at *1 (5th Cir. Apr. 22, 2019). Luna-Garcia’s collateral attack was based
on the same argument raised in her motion to reopen and rescind at issue here: that she did
not receive notice despite having satisfied her obligation to provide an address by providing
a foreign address. See Rodriguez-Saragosa v. Sessions, 904 F.3d 349, 353 n.1 (5th Cir. 2018)
(“Motions to reopen are not ‘collateral’; they are attempts to revisit an order made within the
same matter[.]”). We, however, held that we lacked jurisdiction to entertain Luna-Garcia’s
collateral attack because she failed to file a petition for review of the removal order within 30
days. Luna-Garcia, 2019 WL 1758871, at *4. We also rejected other grounds for relief. Id.
at *4–5.
2 “We need not resort to Chevron deference if ‘[t]he statutory text alone is enough to
resolve [the question].’ ” Ramos-Portillo v. Barr, 919 F.3d 955, 960 n.4 (5th Cir. 2019)
(alteration in original) (quoting Pereira v. Sessions, 138 S. Ct. 2105, 2113–14 (2018)).
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III.
Luna-Garcia argues that she is entitled to reopen the in absentia
removal order because she never received notice despite having satisfied her
statutory obligation to provide an address to receive notice. We disagree.
A.
“Under 8 U.S.C. § 1229a(b)(5)(A), an alien who fails to attend a hearing
after written notice has been provided to the alien or the alien’s counsel of
record shall be ordered removed in absentia if the government establishes by
‘clear, unequivocal, and convincing evidence’ that the written notice was so
provided and that the alien is removable.” Hernandez-Castillo, 875 F.3d at 204
(quoting 8 U.S.C. § 1229a(b)(5)(A)). However, “[a]n in absentia removal order
entered without proper notice to the alien may be rescinded at any time upon
a motion to reopen . . . .” Mauricio-Benitez, 908 F.3d at 147; see also 8 U.S.C.
§ 1229a(b)(5)(B), (C). In turn, an alien has an obligation to provide “an
address . . . at which the alien may be contacted respecting proceedings under
[8 U.S.C. § 1229a].” 8 U.S.C. § 1229(a)(1)(F)(i). “[I]f the alien fails to provide
a mailing address in accordance with the statutory requirements, he is not
entitled to written notice of his removal hearing.” Mauricio-Benitez, 908 F.3d
at 147; accord 8 U.S.C. § 1229a(b)(5)(B). Thus, “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.” Gomez-Palacios
v. Holder, 560 F.3d 354, 360 (5th Cir. 2009).
Luna-Garcia argues that because § 1229(a)(1)(F)(i) does not specify
whether an alien must provide a United States or a foreign address, the alien
may satisfy her obligation to provide an address by providing a foreign address.
However, we rejected a similarly restrictive interpretation in Ramos-Portillo
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v. Barr, 919 F.3d 955, 960 (5th Cir. 2019), in which we held that the former
version of the statute with virtually identical language, 8 U.S.C.
§ 1252b(a)(1)(F)(i) (repealed 1996), required a United States address. Like its
predecessor, the current version, § 1229(a)(1)(F)(i), “requires not just any
‘address’ or any ‘address . . . at which an alien may be contacted.’ ” Ramos-
Portillo, 919 F.3d at 960. Rather, § 1229(a)(1)(F)(i) requires “an address . . . at
which the alien may be contacted respecting proceedings under [8 U.S.C.
§ 1229a]”—that is, removal proceedings. As we have done in Ramos-Portillo,
we must interpret 8 U.S.C. § 1229(a)(1)(F)(i) with “common sense,” “a view to
[the phrase’s] place in the overall statutory scheme,” and whether “[a] textually
permissible interpretation furthers rather than obstructs the [statute’s]
purpose” evident from the text. See 919 F.3d at 961 (first quoting Abramski v.
United States, 573 U.S. 169, 179 (2014); then quoting Davis v. Mich. Dep’t of
Treasury, 489 U.S. 803, 809 (1989); and then quoting Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 63 (2012)). To the
extent § 1229(a)(1)(F)(i) concerns notifying an alien who is living in the United
States and subject to removal from the United States, the alien must provide
a United States address to satisfy the requirements of § 1229(a)(1)(F)(i). See
id. at 960–61 (observing the same for aliens in the United States who are
subject to deportation from the United States under the previous version of the
statute).
As the government acknowledges, the term “removal” as used in the
newer version of the statute is broader than the term “deportation” used in the
previous version of the statute. See, e.g., I.N.S. v. St. Cyr, 533 U.S. 289, 315
(2001) (“[T]he term ‘removal’ was substituted for ‘deportation.’ ”); Fernandez-
Vargas v. Gonzales, 548 U.S. 30, 33 n.1 (2006) (noting that removal “largely
replaces what were formerly exclusion proceedings and deportation
proceedings” (quoting Gerald L. Neuman, Habeas Corpus, Executive Detention,
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and the Removal of Aliens, 98 Colum. L. Rev. 961, 966 (1998))); see also Demore
v. Kim, 538 U.S. 510, 541 n.2 (2003) (Souter, J., dissenting in part) (“In 1996,
Congress combined ‘deportation’ and ‘exclusion’ proceedings into a single
‘removal’ proceeding.”). For example, 8 U.S.C. § 1229a(e)(2) expressly states
that a “removable” alien can be either (1) an “inadmissible” alien “in the case
of an alien not admitted to the United States” or (2) a “deportable” alien “in the
case of an alien admitted to the United States.” However, the fact that the
term “removal” is a broader term than “deportation” does not change our
interpretation of § 1229(a)(1)(F)(i). At the very least, removal encompasses
deportation of aliens from the United States to a foreign country. See 8 U.S.C.
§ 1229a(e)(2); Deportation, Black’s Law Dictionary (6th ed. 1990) (“The
transfer of an alien . . . from the United States to a foreign country.”). To
effectuate service of notice on an alien who is physically in the United States
by mail, the government must have the alien’s United States address. See 8
U.S.C. § 1229(a)(1) (requiring service by mail); Ramos-Portillo, 919 F.3d at
960–61.
The government also acknowledges that the new statute expressly
contemplates the applicability of the notice requirements to “any alien who
remains in a contiguous foreign territory.” 8 U.S.C. § 1229a(b)(5)(E). Indeed,
Luna-Garcia cites to BIA decisions in which the government sent notices to
addresses in Mexico to argue that a foreign address may be sufficient. See
Matter of Rivas-Vivas, 2008 WL 486913, at * 1 (BIA Jan. 30, 2008); Matter of
Sanchez-Avila, 21 I. & N. Dec. 444, 447 (BIA 1996). However, 8 U.S.C.
§ 1229a(b)(5)(E) and these BIA cases do not alter our analysis because they do
not concern aliens who will remain and reside in the United States during the
pendency of their proceedings.
As a threshold matter, Guatemala is not a contiguous foreign territory
covered under 8 U.S.C. § 1229a(b)(5)(E). Moreover, 8 U.S.C. § 1229a(b)(5)(E)
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generally concerns aliens who are applicants for admission—“alien[s] . . . who
arrive[] in the United States” but “ha[ve] not been admitted” and must be
inspected by immigration officers—who will remain in a foreign contiguous
territory to await full or expedited removal proceedings to determine their
admissibility. 8 U.S.C. § 1225(a)(1), (3); see also Jennings v. Rodriguez, 138 S.
Ct. 830, 836–38 (2018) (explaining the removal processes for various types of
applicants for admission at the border); Matter of M-S-, 27 I. & N. Dec. 509,
510 (A.G. 2019) (same). Because 8 U.S.C. § 1229a(b)(5)(E) concerns removal
(i.e. admissibility determination) for aliens not yet in the United States, it has
little bearing on the requirement that an alien who will remain in the United
States during her proceedings provide a United States address to receive notice
by mail.
Our interpretation of 8 U.S.C. § 1229(a)(1)(F)(i) and § 1229a(b)(5)(E) is
also consistent with the facts in the BIA cases cited by Luna-Garcia. Rivas-
Vivas, 2008 WL 486913, at * 1; Sanchez-Avila, 21 I. & N. Dec. at 447. Unlike
Luna-Garcia, those aliens were not physically in the United States and did not
face deportation from the United States. Instead, those aliens were applicants
for admission who were turned away at the border and waited in Mexico for
the immigration court to determine their admissibility into the United States.
Rivas-Vivas, 2008 WL 486913, at * 1; Sanchez-Avila, 21 I. & N. Dec. at 446.
These BIA decisions, therefore, also have little bearing on the requirement that
aliens remaining in the United States during their proceedings provide a
United States address. 3
3Luna-Garcia also argues for the first time in her petition for rehearing that the
recent implementation of the “Migrant Protection Protocols” somehow counsels against
requiring a United States address. Under the Protocols, aliens entering the United States
from Mexico illegally or without documentation must remain in Mexico for the duration of
their immigration proceedings. Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110, 1115
(N.D. Cal. 2019) (explaining the details of the Protocols). However, the record here clearly
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In sum, § 1229(a)(1)(F)(i)—like its predecessor, § 1252b(a)(1)(F)(i)—
requires an alien who is physically in the United States and subject to removal
from the United States to provide a United States address to receive notice by
mail. Applying this interpretation of § 1229(a)(1)(F)(i), we hold that the BIA
did not abuse its discretion in dismissing Luna-Garcia’s appeal. The BIA
properly rejected the argument that a Guatemalan address was sufficient
under these circumstances.
B.
Alternatively, even if we assume arguendo that an alien may satisfy her
obligation to provide an address under § 1229(a)(1)(F)(i) by providing a foreign
address, Luna-Garcia still cannot prevail. 4
We may usually only affirm the BIA on the basis of its stated rationale
for ordering an alien removed from the United States. “However, in certain
circumstances, there may be limited exceptions to this rule. Even if there is a
reversible error in the BIA’s analysis, affirmance may be warranted ‘where
there is no realistic possibility that, absent the errors, the . . . BIA would have
reached a different conclusion.’ ” Enriquez-Gutierrez v. Holder, 612 F.3d 400,
407 (5th Cir. 2010) (quoting Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391,
401 (2d Cir. 2005)); see also Fa Wang v. Sessions, 736 F. App’x 477, 482 (5th
Cir. 2018) (“Even when we doubt the propriety of some of the credibility
findings, we agree it is proper to affirm if other reasons are sound . . . .”);
Vazquez v. Sessions, 885 F.3d 862, 872 (5th Cir. 2018). Here, there is no
shows that Luna-Garcia has lived in the United States since 2004. In any event, our holding
does not prevent an alien remaining in Mexico under the Protocols—who is therefore not in
the United States—from using a foreign address.
4“In this circuit, ‘alternative holdings are binding precedent and not obiter dicta.’ ”
Ramos-Portillo, 919 F.3d at 962 n.5 (quoting Whitaker v. Collier, 862 F.3d 490, 496 n.14 (5th
Cir. 2017)).
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“realistic possibility” that the BIA would reach a different conclusion on
remand for two reasons. Enriquez-Gutierrez, 612 F.3d at 407.
First, the purported Guatemalan address that Luna-Garcia provided
was not an address “at which the alien may be contacted” as required under
§ 1229(a)(1)(F)(i). The IJ found that Luna-Garcia “had no plans to go [back to
Guatemala] but was traveling to New York to seek employment.” The Border
Patrol agent’s notes also confirm that “Luna-Garcia claim[ed] that she was
headed to New York . . . to seek employment” when she was stopped. In Ramos-
Portillo, 919 F.3d at 961–62, we held that “[i]t was not irrational or capricious
for the BIA to conclude that [an illegal alien]—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.” Likewise, given Luna-Garcia’s admission that she was
going to New York, she could not be contacted in Guatemala.
Second, Luna-Garcia failed to follow up with an address despite the fact
that her NTA did not list a United States address. 8 C.F.R. § 1003.15(d)(1)
states that “[i]f the alien’s address is not provided on the [NTA], . . . the alien
must provide to the Immigration Court where the charging document has been
filed, within five days of service of that document, a written notice of an address
and telephone number at which the alien can be contacted.” Even if we assume
that Luna-Garcia had provided a valid mailing address for purposes of
§ 1229(a)(1)(F)(i), Luna-Garcia’s NTA did not contain a U.S. address, thus
requiring her to follow up with the immigration court with an address. See
Ramos-Portillo, 919 F.3d at 962 (“[R]egardless 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.”). Here, as the IJ found, Luna-Garcia never followed up with an
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address upon release, after the charging document was filed, or through her
many purported relocations over the years. See id.
In sum, given the IJ’s findings that Luna-Garcia failed to provide an
address at which she could be contacted and that she failed to follow up with
an address despite being served with an NTA listing no address, there is no
realistic possibility that the BIA would reach another outcome than to dismiss
her appeal. See Fa Wang, 736 F. App’x at 482; Enriquez-Gutierrez, 612 F.3d
at 407. Accordingly, we also deny Luna-Garcia’s petition for review on these
alternative grounds.
IV.
Luna-Garcia argues that the BIA violated her due process rights: (1) by
ordering her removed in absentia without notice and (2) by requiring a United
States address without first informing her that she must provide a United
States address. We reject these contentions. As a threshold matter, Luna-
Garcia did not receive notice not because of the government’s malfeasance but
“due to [her] neglect of [her] obligation to keep the immigration court apprised
of [her] current mailing address.” Gomez-Palacios, 560 F.3d at 360; accord
Mauricio-Benitez, 908 F.3d at 148. We are similarly unpersuaded by the
argument that she was not informed of her obligation to provide a United
States address. The NTA gave her ample warning. On the first page, the NTA
stated that Luna-Garcia “FAILED TO PROVIDE A US ADDRESS.” On the
second page, the NTA further informed Luna-Garcia that she is required to
provide the INS, in writing, with her full mailing address as “[n]otices of
hearing will be mailed to this address.” The NTA also warned her of the
consequences of failing to provide and update her full mailing address: that
she could be ordered removed in absentia. These warnings were sufficient to
apprise Luna-Garcia that she needed to provide a full United States address
to receive notices of hearing.
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V.
We DENY Luna-Garcia’s petition for review.
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