Rodriguez v. Garland

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 19, 2022
No. 20-60008 Lyle W. Cayce
Clerk
Marcelo Eugenio Rodriguez, also known as Marcelo
Rodriguez Andueza,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of the Order of the
Board of Immigration Appeals
BIA No. A207 311 796
Before Higginbotham, Willett, and Duncan, Circuit Judges.
Per Curiam:
The petition for panel rehearing is DENIED.
Additionally, the court having been polled at the request of one of the
members of the court and a majority of the judges who are in active service
not having voted in favor, rehearing en banc is DENIED. 1 In the en banc
poll, eight judges voted in favor of rehearing (Chief Judge Richman and
1
FED. R. APP. P. 35 and 5TH CIR. R. 35 I.O.P.
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Judges Jones, Smith, Elrod, Haynes, Ho, Oldham, and Wilson), and nine
judges voted against rehearing (Judges Stewart, Dennis, Southwick, Graves,
Higginson, Costa, Willett, Duncan, and Engelhardt).
ENTERED FOR THE COURT:
_______________________
Patrick E. Higginbotham
United States Circuit Judge
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Stuart Kyle Duncan, Circuit Judge, joined by Higginbotham,
Senior Circuit Judge, and Southwick, Higginson, and Willett,
Circuit Judges, concurring in denial of en banc rehearing:
The court has declined to rehear this case en banc. That’s the right
call. The panel’s decision was compelled by Niz-Chavez v. Garland, 141 S.
Ct. 1474 (2021), and has since been joined by the Ninth Circuit. See Singh v.
Garland, 24 F.4th 1315, 1319 (9th Cir. 2022). 1 Our en banc resources are
rarely well spent stirring up circuit splits.
A few responses to my esteemed dissenting colleagues.
First, the main dissent says “textual and contextual” differences
distinguish the in absentia provision in this case from the stop-time provision
in Niz-Chavez. See post at 6 (Elrod, J., dissenting). 2 Not so. Both reference
the definition of “a ‘notice to appear’” in 8 U.S.C. § 1229(a):
• Stop-time is triggered “when the alien is served a notice to appear under
section 1229(a) of this title.” 8 U.S.C. § 1229b(d)(1).
• In absentia removal may be rescinded if the alien “did not receive notice
in accordance with paragraph (1) or (2) of section 1229(a) of this ti-
tle[.]”Id. § 1229a(b)(5)(C)(ii).
1
“We . . . join the Fifth Circuit in holding that the Supreme Court’s ‘separate
interpretation of the § 1229(a) notice requirements in Niz-Chavez [ ] applies in the in
absentia context’ in addition to the stop-time-rule context.” Ibid. (quoting Rodriguez v.
Garland, 15 F.4th 351, 355 (5th Cir. 2021)).
2
The dissent also repeatedly accuses the panel of acting without the benefit of
briefing on Niz-Chavez. See post at 1 (Elrod, J., dissenting) (claiming panel acted “without
the benefit of . . . briefing on Niz-Chavez”); id. at 3 (same); id. at 10 (same). That is quite
mistaken. Niz-Chavez came out after briefing concluded, and so the parties informed the
panel about the decision and subsequent developments through 28j letters. True, the panel
could have requested supplemental briefing. But that seemed superfluous given the six 28j
letters totaling about 2,000 words.
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• In removal proceedings, “written notice (in this section referred to as a
‘notice to appear’)” shall be given, specifying various things. Id.
§ 1229(a)(1).
Niz-Chavez held that stop-time requires a single notice; notices-by-
installment won’t do. 141 S. Ct. at 1486. Why? The letter “a,” signifying a
“single document,” appears in both the referencing provision
(§ 1229b(d)(1)) and the definition (§ 1229(a)(1)): “Not once but twice it
seems Congress contemplated ‘a’ single document.” Id. at 1480, 1481.
In this case, the only difference is the lack of one “a.” Instead of “a
notice to appear,” the in absentia provision demands “notice in accordance
with paragraph (1) or (2) of section 1229(a).” 8 U.S.C. § 1229a(b)(5)(C)(ii)
(emphasis added). The dissent thinks this difference makes all the difference.
Post at 8 (Elrod, J., dissenting). It doesn’t. Niz Chavez underscored that
§ 1229(a)(1) “stubbornly require[s] ‘a’ written notice containing all the
required information.” 141 S. Ct. at 1480. The in absentia provision pointedly
requires “notice in accordance with” the very same definition,
§ 1229(a)(1)—which, again, stubbornly requires one document. 8 U.S.C.
§ 1229a(b)(5)(C)(ii). There is no meaningful difference between the two
referencing provisions. They use different words (two “a’s” vs. “in
accordance with”) to require the same thing: a single notice.
The dissent’s best argument relies on a counterfactual in Niz-Chavez.
See post at 8 (Elrod, J., dissenting). The Court imagined a law merely
requiring “‘notice’ in its noncountable sense,” like one demanding the
government “provide[] ‘notice’ (or perhaps ‘sufficient notice’) of the
mandated information.” Niz-Chavez, 141 S. Ct. at 1481. “This case,” the
dissent says, “appears to be the Court’s counterfactual.” Post at 8 (Elrod, J.,
dissenting). It’s not. The in absentia provision doesn’t merely demand
“notice” or “sufficient notice,” but “notice in accordance with [§ 1229(a)(1)
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or (2)].” 8 U.S.C. § 1229a(b)(5)(C)(ii) (emphasis added). That’s not
“notice” in some fuzzy “noncountable sense.” That’s notice “in
accordance with” a statute the Supreme Court has told us “stubbornly
require[s] ‘a’ written notice containing all the required information.” Niz-
Chavez, 141 S. Ct. at 1480.
The dissent also proposes an alternate way of finding sufficient notice:
the second notice “might have satisfied ‘notice’ in accordance with
paragraph . . . (2).” Post at 9 (Elrod, J., dissenting); see 8 U.S.C.
§§ 1229a(b)(5)(C)(ii); 1229(a)(2). No, it couldn’t have. Subsection (a)(2)
applies to a “change in time or place of [removal] proceedings” and
guarantees a written notice of “the new time or place of the proceedings.” 8
U.S.C. § 1229(a)(2) (emphases added). The provision can’t apply here. The
alien never got an initial “time or place,” so there was nothing to “change”
and any subsequently set “time or place” wouldn’t be “new.” The Supreme
Court has settled this point. In Pereira v. Sessions, 138 S. Ct. 2105, 2114
(2018), the Court explained that “paragraph (2) [in § 1229(a)] presumes that
the Government has already served a ‘notice to appear under section
1229(a)’ that specified [the required] time and place.” 3 So (a)(2) is a red
herring. It doesn’t provide another way to find valid in absentia notice here.
Both dissents suggest the court should defer to the BIA’s recent
decision in Matter of Laparra, 28 I. & N. Dec. 425 (BIA 2022), which
disagreed with the panel. See post at 11 (Elrod, J., dissenting); post at 2 (Ho,
3
See also Niz-Chavez, 141 S. Ct. at 1485 (emphases added) (under § 1229(a)(2),
“once the government serves a compliant notice to appear, [the statute] permits it to send a
supplemental notice amending the time and place of an alien’s hearing if logistics require a
change”); Singh, 24 F.4th at 1319–20 (concluding, “by the plain text of [§ 1229(a)(2)] there
can be no valid notice under paragraph (2) without valid notice under paragraph (1),” and
registering “surprise[] that the government would argue otherwise given that the Supreme
Court already adopted this plain reading of paragraph (2) in Pereira” (citation omitted)).
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No. 20-60008
J., dissenting); see Laparra, 28 I. & N. Dec. at 436. Even assuming Chevron
deference applies, however, we needn’t accept an agency’s reading that is
“patently inconsistent with the statutory scheme.” Texas v. United States,
809 F.3d 134, 178 n.160 (5th Cir. 2015) (citation omitted), affirmed by an
equally divided court, 577 U.S. 1101 (2016). In Laparra, the BIA theorized that
an alien—previously “served with a noncompliant notice to appear” under
§ 1229(a)(1)—could still be removed in absentia if served with a notice under
§ 1229(a)(2) specifying the omitted information. 28 I. & N. Dec. at 434.
That flies in the face of the Supreme Court’s Pereira decision, which
Laparra ignored. As Pereira explained, a valid (a)(2) notice “presumes that
the Government has already served a ‘notice to appear under section
1229(a)’ that specified [the required] time and place.” 138 S. Ct. at 2114.
“Otherwise,” said the Court, “there would be no time or place to ‘change or
postpon[e].” Ibid. (quoting § 1229(a)(2)). So Laparra mangles “[t]he plain
text [of § 1229(a)], the statutory structure, and common sense.” Singh, 24
F.4th at 1319. No Chevron for Laparra. 4
Finally, the main dissent warns that the panel decision botches an
“extraordinarily important” issue and will reopen many in absentia removals.
Post at 1 (Elrod, J., dissenting). Those concerns are serious and, frankly, I
share them. Not everyone loved Niz-Chavez. See 141 S. Ct. at 1488
(Kavanaugh, J., dissenting) (“I find the Court’s conclusion rather perplexing
as a matter of statutory interpretation and common sense.”). But we have to
apply it and that’s what the panel did.
4
See Scialabba v. Cuellar de Osorio, 573 U.S. 41, 57 (2014) (plurality op.)
(“Under Chevron, the statute’s plain meaning controls, whatever the Board might have to
say.” (citation omitted)).
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Besides, the Niz-Chavez majority rejected these kinds of “raw
consequentialist” criticisms. 5 The Supreme Court sometimes breaks things.
See McGirt v. Oklahoma, 140 S. Ct. 2452, 2482 (2020) (Roberts, C.J.,
dissenting) (“[T]he Court has profoundly destabilized the governance of
eastern Oklahoma.”). If faithfully applying Niz-Chavez further backlogs our
immigration system, this inferior court judge can only wait to see if Congress
changes the law or the Supreme Court changes its mind. 6
I respectfully concur in the decision not to rehear this case en banc.
5
Compare id. at 1495 (Kavanaugh, J., dissenting) (“[T]he Court’s decision will
impose significant costs on the immigration system, which of course means more backlog
for other noncitizens involved in other immigration cases.”) (emphasis removed), with id.
at 1486 (majority op.) (criticizing dissent for “assess[ing] the resulting ‘costs’ and
‘benefits’” of majority opinion and stating “that kind of raw consequentialist calculation
plays no role in our decision”).
6
In passing, the main dissent also claims the panel “leapfrogged over th[e]
threshold issue” of “whether Rodriguez updated his address and was therefore entitled to
notice at all.” Post at 3 (Elrod, J., dissenting). There was no leapfrogging. Whether
Rodriguez proved he changed his address between the first and second notices was relevant
to rebutting the “presumption of effective service” for the second notice. See Matter of M-
R-A-, 24 I. & N. Dec. 665, 674 (BIA 2008); see also § 1229(c). That issue became moot
when Niz-Chavez came out. Because Niz-Chavez requires a single notice to appear, it
doesn’t matter whether Rodriguez rebutted the presumption that the second notice was
served on him.
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Jennifer Walker Elrod, Circuit Judge, joined by Jones, Smith,
and Wilson, Circuit Judges, dissenting from the denial of en banc rehearing:
The court should have taken this case en banc. Breaking from our
precedents, the panel opinion holds that aliens removed in absentia after
consciously failing to appear at their removal proceedings may reopen their
cases and apply for rescission of removal if notice of their proceedings was
sent in two documents instead of one. According to the panel, the Supreme
Court’s recent decision in Niz-Chavez v. Garland requires this result. In that
case, the Supreme Court held that the stop-time rule in 8 U.S.C.
§ 1229b(d)(1) does not preclude cancellation of removal until the alien
receives in a single document all of the information described in 8 U.S.C.
§ 1229(a)(1). In this case, without the benefit of oral argument or briefing on
Niz-Chavez, the panel opinion applies Niz-Chavez to different statutory
language in a different immigration context. And it does so contrary to a
precedential decision of the BIA, released after the panel opinion but before
the call for an en banc poll. We normally defer to these BIA decisions; we
should have considered whether to do so en banc.
This question is also extraordinarily important. Motions to reopen for
lack of notice may be filed “at any time.” 8 U.S.C. § 1229a(b)(5)(C)(ii).
Under the panel opinion’s holding, virtually every alien ordered removed in
absentia before Niz-Chavez—who has not yet filed a motion to reopen—will
be entitled to reopen his case and apply for rescission of removal. In all of
these cases, the government will have to start all over again—all for sending
notice (which the alien did receive) in two documents instead of one. 1 It is
1
For context, between 2017 and 2020, the government issued 41,969, 46,116,
90,944, and 87,002 in absentia removal orders each year. EOIR, Adjudication Statistics: In
Absentia Removal Orders (2020), https://www.jus-
tice.gov/eoir/page/file/1243496/download.
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No. 20-60008
not clear that the law requires these consequences, and this court should not
have accepted them unblinkingly.
I.
Petitioner Marcelo Eugenio Rodriguez, a native and citizen of
Uruguay, became removable from the United States when his conditional
permanent resident status was terminated in 2016. Rodriguez v. Garland, 15
F.4th 351, 353 (5th Cir. 2021). Two years later, DHS sent Rodriguez a notice
to appear that did not include the time and place of his removal proceeding.
Id. This information, however, was provided in a subsequent notice of
hearing sent to Rodriguez at his Pasadena, Texas, address. Id.Rodriguez failed to appear at his removal hearing and was ordered
removed in absentia. Id. He filed a motion to reopen his case, arguing that:
(1) he did not receive notice of his hearing because he had since moved from
his Pasadena address; (2) he had informed the immigration court—as
required—of his new address; and (3) the separate and subsequent notice of
hearing did not satisfy the notice requirements for removal in absentia.
Noting that the record did not contain a change-of-address form, the
IJ held that Rodriguez failed to show that he did not receive the notice of
hearing sent to his Pasadena address. After determining that a subsequent
notice of hearing is sufficient notice to preclude reopening of removal
proceedings, the IJ denied Rodriguez’s requested relief. The BIA agreed,
and Rodriguez filed a petition for review.
After briefing in this court had concluded, the Supreme Court issued
its decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). Relying on the
fact that “notice to appear” is preceded by the article “a” in both
§ 1229b(d)(1) and § 1229(a), the Court held that the stop-time rule does not
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No. 20-60008
preclude cancellation of removal unless the alien receives all of the
information in § 1229(a)(1) in a single document. Id. at 1486.
Applying Niz-Chavez, the panel opinion declined the government’s
invitation to either address or remand for clarification of whether Rodriguez
updated his address and was therefore entitled to notice at all. Instead, the
panel leapfrogged over this threshold issue and landed straight onto an
unbriefed and unargued question of first impression: Whether an alien is
entitled to reopen his in absentia removal order and apply for rescission of
removal when he receives notice of his removal proceedings in two
documents instead of one. 2 Absent briefing on Niz-Chavez and without the
2
This is indeed a threshold issue. But see ante at 5 n.6 (Duncan, J., concurring).
Section 1229(a)(1)(F)(ii) requires aliens to “provide the Attorney General immediately
with a written record of any change of the alien’s address or telephone number.” 8 U.S.C.
§ 1229(a)(1)(F)(ii). Section 1229a(b)(5)(B) provides the consequences for failing to do so:
“No written notice shall be required under subparagraph (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) (stating the same). It is undisputed that
Rodriguez’s notice to appear instructed him to update the immigration court with any
address changes. And under the government’s account, Rodriguez moved from his
Pasadena address (to which the subsequent notice of hearing was sent) without updating
the immigration court with his new address.
Because Rodriguez disputes the government’s account, it is unclear whether
Rodriguez is entitled to notice at all. Nothing in § 1229(a) conditions the updated-address
requirement on the receipt of a notice to appear that includes the time and place of removal
proceedings. And, as our precedents demonstrate, this requirement is relevant to the
presumption of effective service because it is a condition precedent to rebutting it. While
an alien may attempt to rebut the presumption of receipt by showing that notice was sent
to an old address, the presumption will only be overcome if the alien updated his address
and is therefore entitled to notice in the first place. See, e.g., Mauricio-Benitez v. Sessions,
908 F.3d 144, 149 (5th Cir. 2018) (“Even if Mauricio-Benitez had been entitled to actual
notice of his removal hearing, we agree with the BIA’s determination that he has not
presented sufficient evidence to rebut the presumption that the NOH was properly
delivered.”). This is plain from the statute’s text, and the concurrence’s reading—though
not part of the holding in this case—would apparently discharge all aliens affected by Niz-
Chavez of their responsibility to update their addresses. In any event, the concurrence’s
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No. 20-60008
benefit of oral argument, the panel summarily concluded that Niz-Chavez
dictates the answer in this different statutory and immigration context. 3
A few months later, the BIA disagreed with the panel opinion in a
precedential decision, Matter of Laparra, 28 I. & N. Dec. 425 (BIA 2022).
After surveying the statutory text, context, and history, the BIA
distinguished Niz-Chavez on three grounds. First, it recognized that
§ 1229a(b)(5)(C)(ii) does not introduce “notice to appear” with the article
“a,” the word on which “a lot [turned]” in Niz-Chavez. 141 S. Ct. at 1480;
Matter of Laparra, 28 I. & N. Dec. at 431. Second, it interpreted the
disjunctive “or” in § 1229a(b)(5)(C)(ii) to signify that notice under
§ 1229(a)(2) may be satisfied independently of § 1229(a)(1), such as by a
subsequent notice of hearing. Matter of Laparra, 28 I. & N. Dec. at 436. And
third, it explained that its decision was consistent with the “place[ment] of
sections 240(b)(5)(A) and (C)(ii) in the overall statutory scheme as well as
the relevant regulatory history.” Id. at 434.
II.
This case is not about when immigration proceedings start, but we
must begin there nonetheless. Title 8 U.S.C. § 1229 describes the initiation
of removal proceedings. Section 1229(a), titled “Notice to appear,” requires
novel argument that Niz-Chavez “moot[s]” the updated-address requirement is yet
another reason both for deciding this case on more than 28(j)s initially and for rehearing it
en banc now.
3
Specifically, the parties filed letters under Federal Rule of Appellate Procedure
28(j) informing the court of the Supreme Court’s decision in Niz-Chavez. Fed. R. App. P.
28(j). This was entirely appropriate. But 28(j)s are “letter[s],” capped at 350 words,
meant only to bring “intervening decisions or new developments” to the court’s attention.
Id.; 5th Cir. R. 28.4. They are not “supplemental brief[s]” and may not be used to make
arguments. 5th Cir. R. 28.4. Thus, 28(j)s are poor substitutes for supplemental briefing,
which the court may—and often does—request.
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“written notice (in this section referred to as a ‘notice to appear’) [to] be
given” to the alien specifying a litany of information, including (among other
things) the: (1) nature of the removal proceedings and their legal authority;
(2) charges against the alien and the relevant illegal conduct; and (3) time and
place of the removal proceedings and the consequences for failing to appear.
Id. § 1229(a)(1). After providing this information, § 1229(a)(2) requires the
government to send a new document with the time and place of the alien’s
removal proceedings and the consequences for failure to appear when the
immigration court changes or postpones the alien’s removal proceedings. Id.
§ 1229(a)(2).
Since the Illegal Immigration Reform and Immigrant Responsibility
Act was enacted in 1996 and until the Court’s decision in Niz-Chavez, most
aliens received notice of their immigration proceedings in two stages. 4 First,
the government (now specifically DHS) would send the alien a notice to
appear. This notice to appear would generally include all of the information
described by § 1229(a)(1) except for the time and place of the alien’s removal
proceeding. For various administrative reasons, the immigration court
would later send a separate document—a notice of hearing—with the time
and date of the alien’s hearing and the consequences of failing to appear after
processing the alien’s information and scheduling his hearing.
Under our still-applicable precedents, which the panel opinion does
not disturb, the receipt of this notice to appear vests the immigration court
with jurisdiction over the alien’s case. E.g., Pierre-Paul v. Barr, 930 F.3d 684,
4
E.g., Pereira v. Sessions, 138 S. Ct. 2105, 2111 (2018) (quoting the government’s
statement that nearly 100 percent of notices to appear have omitted the time and place of
the proceeding over the last three years).
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No. 20-60008
690 (5th Cir. 2019). As this court has explained, “the regulations . . . govern
what a notice to appear must contain to constitute a valid charging
document,” and under the regulations a notice to appear must only include
the time and place of removal proceedings “where practicable.” Id. at 688–
90, 693; see also 8 C.F.R. §§ 1003.14, 1003.15, 1003.18, 1003.26. Accordingly,
a notice to appear has never been required—either by regulation or our case
law—to include all of the information described by § 1229(a)(1) before
initiating removal proceedings.
After removal proceedings are initiated, a provision of IIRIRA allows
the Attorney General to cancel removal proceedings under certain
circumstances. Under one of them, the Attorney General may cancel the
removal of aliens who have “been physically present in the United States for
a continuous period of not less than 10 years immediately preceding the date
of such application.” 8 U.S.C. § 1229b(b)(1)(A). A companion provision
defines when this 10-year clock stops running. It specifies that “any period
of continuous residence or continuous physical presence” ends “when the
alien is served a notice to appear under section 1229(a).” Id. § 1229b(d)(1).
This rule, known as the stop-time rule, was the subject of the Court’s
decision in Niz-Chavez.
In Niz-Chavez, the Supreme Court held that the stop-time rule is not
triggered until the alien receives all of the information described in
§ 1229(a)(1) in a single document. Niz-Chavez, 141 S. Ct. at 1486. In other
words, the stop-time rule does not preclude an alien’s eligibility for
cancellation unless the time and place of his removal proceeding are included
in the notice to appear. But this case is about reopening, not cancellation, of
removal. It therefore implicates statutory text, context, and objectives that
are different from those present in Niz-Chavez.
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III.
“[C]ancellation and reopening of removal are two entirely different
proceedings under immigration law[.]” Mauricio-Benitez v. Sessions, 908 F.3d
144, 148 n.1 (5th Cir. 2018). Cancellation of removal terminates ongoing
proceedings. Reopening of removal restarts proceedings that have
concluded. These two different proceedings use different statutory text to
serve different objectives. These textual and contextual differences counsel
against a cursory, one-to-one application of Niz-Chavez to this distinct
context.
More specifically—and differently—this case is about reopening in
absentia orders of removal. An alien may be removed in absentia if he fails to
appear at his removal proceeding. Title 8 U.S.C. § 1229a(b)(5)(C)(ii)
governs the reopening and rescission of in absentia removal orders. It states
that an in absentia order of removal may be rescinded “upon a motion to
reopen filed at any time if the alien demonstrates that the alien did not receive
notice in accordance with paragraph (1) or (2) of section 1229(a).” Id.
§ 1229a(b)(5)(C)(ii). Put differently, reopening is not permitted where the
alien receives notice in accordance with either § 1229(a)(1) or (a)(2).
Notably, it is undisputed that an alien already may show that he did
not actually receive notice of his hearing. This court applies a presumption
of receipt to notice sent by mail. E.g., Navarrete-Lopez v. Barr, 919 F.3d 951,
953–54 (5th Cir. 2019). “[T]he focus is whether the alien actually received
the required notice and not whether the notice was properly mailed,” and an
alien who successfully rebuts the presumption of receipt is entitled to reopen
his case and apply for recission of his in absentia order. See id. (quoting
Garcia-Nuñez v. Sessions, 882 F.3d 499, 506 (5th Cir. 2018)); 8 U.S.C.
§ 1229a(b)(5)(C)(ii). As a result, an alien will remain subject to an in absentia
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No. 20-60008
order only when he actually received notice of his removal proceeding and
failed to appear nonetheless. 5
Against this backdrop, it would seem odd to conclude that an alien,
despite knowing about his removal proceeding and consciously failing to
appear, is eligible for reopening and rescission of his removal order simply
because he received notice of his hearing in two documents instead of one.
And indeed, there are good reasons to think that he is not.
First, it is not clear that Niz-Chavez compels this result. Niz-Chavez
interpreted statutory language unique to that case. Its holding rested evenly
on both statutory provisions at issue: § 1229b(d)(1) and § 1229(a)(1). Niz-
Chavez, 141 S. Ct. at 1480–82. “[O]ur interpretive task,” the Court said,
“begins with two statutory provisions”: § 1229b(d)(1) and § 1229(a)(1). Id.
at 1480.
The first, the stop-time rule, requires “a” notice to appear. Id. Thus,
“[t]o an ordinary reader—both in 1996 and today—‘a’ notice would seem to
suggest just that: ‘a’ single document.” Id. And the second, § 1229(a)(1),
also uses the singular article “a.” Id. After concluding that the dissent
improperly overlooked the “a’s” falling outside the defined term, the Court
further dismissed the dissent’s position about § 1229(a)(1) because it did not
“help when it comes to § 1229b(d)(1), the provision that actually creates the
stop-time rule.” Id. at 1480–81. “Not once but twice it seems Congress
contemplated ‘a’ single document.” Id. at 1481.
The Court’s interpretive task appeared to end with both provisions as
well. The critical question was whether § 1229b(d)(1), the referencing statute,
5
Separate provisions oblige the alien to apprise the immigration court of any
changes to the alien’s address. 8 U.S.C. § 1229(a)(2)(B); id. § 1229a(b)(5)(B).
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requires a single document. The Court expressly stated as much when
considering the result if an article did not precede “notice” in § 1229b(d)(1):
If IIRIRA had meant to endow the government with the
flexibility it supposes, we would have expected the law [i.e., the
stop-time rule] to use “notice” in its noncountable sense. A
statute like that would have said the stop-time rule applies after
the government provides “notice” (or perhaps “sufficient
notice”) of the mandated information—indicating an
indifference about whether notice should come all at once or by
installment.
Id. at 1481 (alteration added).
This case appears to be the Court’s counterfactual. The referencing
statute here does not use the indefinite article “a,” 8 U.S.C.
§ 1229a(b)(5)(C)(ii); rescission of an in absentia removal order is available if
the alien does not receive “notice.” Id. As in the counterfactual, the lack of
an article “indicat[es] an indifference about whether notice should come all
at once or by installment.” See Niz-Chavez, 141 S. Ct. at 1481; id. at 1480
(“Admittedly, a lot here turns on a small word.”). Justice Kavanaugh makes
this very point in dissent. If the issue turns on whether an “a” appears in the
referencing statute, then notice under § 1229a(b)(5) need not be provided in
a single document. This might “make[] no sense,” id. at 1491 (Kavanaugh,
J., dissenting), but we are not required to remedy one inconsistency with
another. 6
Second, and independently, even assuming that Rodriguez did not
receive notice “in accordance with paragraph (1),” the subsequent notice of
6
This question turns on the content of the referencing, as opposed to the referenced,
statute. Rather than rewriting the referenced statute anew every time, Congress may, as it
has done here, cross-reference a statute and change only the referencing statute as
necessary.
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No. 20-60008
hearing might have satisfied “notice in accordance with paragraph . . . (2).”
8 U.S.C. § 1229a(b)(5)(C)(ii). Section 1229a(b)(5)(C)(ii) allows an alien to
rescind an in absentia removal order if the alien “did not receive notice in
accordance with paragraph (1) or (2) of section 1229(a).” Id. (emphasis
added). Paragraph (2), § 1229(a)(2), requires the government to give an alien
notice of “the new time or place of the proceedings” and the consequences
of failing to appear when the government changes or postpones the time or
place of his removal proceedings. Id. § 1229(a)(2)(A)(i), (ii).
The BIA recently disagreed with the panel’s opinion on this basis.
After surveying the statutory text, context, and history, it concluded that
when an alien receives a notice to appear without the time and place of the
proceeding and the consequences for failing to appear, his subsequent receipt
of a notice of hearing with this information satisfies “notice in accordance
with paragraph . . . (2)” and precludes reopening and rescission of his
removal order. Matter of Laparra, 28 I. & N. Dec. 425, 431–36 (BIA 2022).
The BIA, as well as the government in this case, specifically faulted
the panel for failing to even address this possibility. Id. at 436. 7 As the BIA
has recognized elsewhere, § 1229a(b)(5)(C)(ii) “uses the disjunctive term
‘or’ rather than the conjunctive ‘and,’” meaning that “an in absentia order
of removal may be entered if a written notice containing the time and place
of the hearing was provided either in a notice to appear under [§ 1229(a)(1)]
or in a subsequent notice of the time and place of the hearing pursuant to
[§ 1229(a)(2)].” Matter of Miranda-Cordiero, 27 I. & N. Dec. 551, 553 (BIA
7
The panel opinion does not even quote the relevant language. Compare Rodriguez
v. Garland, 15 F.4th 351, 354 (5th Cir. 2021) (stating that an alien must receive “notice in
accordance with [8 U.S.C. § 1229(a)]” (quoting 8 U.S.C. § 1229a(b)(5)(C)(ii))) (alteration
in original), with 8 U.S.C. § 1229a(b)(5)(C)(ii) (stating that an alien must receive “notice
in accordance with paragraph (1) or (2) of section 1229(a)”) (emphasis added).
17
No. 20-60008
2019); see also Matter of Laparra, 28 I. & N. Dec. at 436. As the BIA held and
as the government argues here, this disjunctive “or” appears to indicate that
only one provision may be satisfied—and, just as importantly—that each
provision may be satisfied independently of the other.
This interpretation also makes sense of the differences between
cancellation of removal and reopening. In the stop-time context, it might
make sense to require a single document before terminating the alien’s period
of continuous residence or continuous physical presence. 8 U.S.C.
§ 1229b(d)(1). There, it matters that an alien has notice of a discrete point in
time that triggers important legal consequences. Reopening, however, cares
less about any one discrete moment in time and more about the alien’s failure
to appear despite knowing that he should. An alien has certain and sufficient
notice of an impending notice of hearing when he has received a notice to
appear stating: (1) the nature of the proceedings against him; (2) the legal
authority under which the proceedings are conducted; (3) the acts or conduct
alleged to be in violation of law; (4) the charges against the alien and the
relevant statutory provisions; (5) notice that the alien may be represented by
counsel; (6) the address of the immigration court; and (7) a statement that
the alien must provide his address and telephone number. 8 C.F.R.
§ 1003.15(b). And when the alien receives the notice of hearing and still fails
to appear, he may be removed in absentia for failing to appear despite knowing
that he should. 8 U.S.C. § 1229a(b)(5)(A). Without the benefit of briefing
and oral argument, it is unclear why reopening here should hinge on the form
of the alien’s notice and not the alien’s notice as such. 8
8
It would not be surprising for Congress to require aliens to meet different
standards for cancellation and reopening of removal. Reopening of removal implicates
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No. 20-60008
Finally, we may also owe deference to the BIA’s decision. This court
grants deference to precedential BIA decisions that reasonably interpret
ambiguous statutes. E.g., Rodriguez-Avalos v. Holder, 788 F.3d 444, 449 (5th
Cir. 2015) (“If we determine that the BIA decision is precedential, then we
proceed under the Chevron two-part inquiry[.]”) (footnote omitted). To say
that the panel opinion is correct is one thing. To say that it is unambiguously
correct is another; not even the panel opinion says so. Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 984 (2005) (“[A]
court’s prior interpretation of a statute [may] override an agency’s
interpretation only if the relevant court decision held the statute
unambiguous.”).
* * *
The court should have granted rehearing en banc to consider the
panel’s decision more carefully. I respectfully dissent from its refusal to do
so.
substantial finality interests, interests not at stake where an alien merely seeks cancellation
of proceedings that are yet ongoing.
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No. 20-60008
James C. Ho, Circuit Judge, dissenting from denial of rehearing en banc:
Under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837 (1984), and other precedents, courts are often required to defer to
Executive Branch interpretations of statutes, rather than exercise our own
independent judgment about the meaning of legal texts. This doctrine of
deference has been sharply criticized as a violation of our constitutional
structure and an abdication of our duty as a separate and independent branch
of government. See, e.g., Voices for Int’l Bus. & Educ., Inc. v. NLRB, 905 F.3d
770, 780–81 (5th Cir. 2018) (Ho, J., concurring) (“[I]t is the consolidation of
legislative and judicial power in executive agencies that has caused Chevron
to be called into question by various Justices.”) (collecting cases).
But of course, “Chevron remains binding Supreme Court precedent.”
Id. at 780. Moreover, if ever there was a place for deference to the Executive
when it comes to interpreting legal texts, it would be here, in the immigration
and border security context.
A sovereign isn’t a sovereign if it can’t enforce its borders. The power
to control the flow of aliens into our country is inherent in our national
sovereignty—and in the executive power under our Constitution—as the
Supreme Court has repeatedly recognized. “It is an accepted maxim of
international law that every sovereign nation has the power, as inherent in
sovereignty, and essential to self-preservation, to forbid the entrance of
foreigners within its dominions, or to admit them only in such cases and upon
such conditions as it may see fit to prescribe.” Ekiu v. United States, 142 U.S.
651, 659 (1892). “The exclusion of aliens is a fundamental act of
sovereignty.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542
(1950). And “[t]he right to do so stems not alone from legislative power but
is inherent in the executive power to control the foreign affairs of the nation.”
Id. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2424 (2018) (Thomas, J.,
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No. 20-60008
concurring) (“[T]he President has inherent authority to exclude aliens from
the country.”) (citing Knauff, 338 U.S. at 542–43).
So it seems obvious that, if nowhere else, “[p]rinciples of Chevron
deference apply when the BIA interprets the immigration laws.” Scialabba
v. Cuellar de Osorio, 573 U.S. 41, 56 (2014) (plurality op.). “Indeed, judicial
deference to the Executive Branch is especially appropriate in the
immigration context, where decisions about a complex statutory scheme
often implicate foreign relations.” Id. at 56–57 (cleaned up).
The panel contends that its analysis in this case is dictated by
governing statutory text, particularly as that text was recently construed by
the Supreme Court in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).
But the BIA has since adopted precisely the opposite reading of those
same governing texts. See Matter of Laparra, 28 I. & N. Dec. 425, 431–36
(BIA 2022). As the BIA has explained, “an in absentia order of removal . . .
need not be rescinded if a written notice containing the time and place of the
hearing was provided either in a notice to appear under [8 U.S.C.
§ 1229(a)(1)] or in a subsequent notice of the time and place of the hearing
pursuant to [8 U.S.C. § 1229(a)(2)].” Id. at 432 (quotations omitted). See 8
U.S.C. § 1229a(b)(5)(C)(ii) (allowing aliens to rescind an in absentia removal
order if they “did not receive notice in accordance with paragraph (1) or (2)
of section 1229(a)”) (emphasis added).
To be sure, “paragraph (2) [in § 1229(a)] presumes that the
Government has already served a ‘notice to appear under section 1229(a)’
that specified [the requisite] time and place.” Pereira v. Sessions, 138 S. Ct.
2105, 2114 (2018). But the BIA reasoned that the text of
§ 1229a(b)(5)(C)(ii)—and in particular, the disjunctive “or”—modifies the
meaning of § 1229(a) in this context. As a result, § 1229(a)(1) and §
1229(a)(2) can be satisfied independently of one another for purposes of
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No. 20-60008
rescinding in absentia removal orders. See Laparra, 28 I. & N. Dec. at 431–
36.
I cannot say that the BIA’s position is unreasonable. To the contrary,
if the Supreme Court is going to place such great weight on the word “a,” as
it did in Niz-Chavez, who’s to say that the BIA may not similarly place such
great weight on the word “or,” as it has in this context?
The panel did not address the BIA’s decision in Laparra, or whether
that decision is entitled to deference. That’s because, at the time of the
panel’s decision, the BIA had not yet set forth its views. In fact, the BIA’s
ruling in the instant case occurred even before the Supreme Court’s decision
in Niz-Chavez. So the panel ruling in this case obviously would not bind a
future panel on the question whether deference to Laparra is required in
these contexts.
Nevertheless, if it were up to me, I would remand this case to allow
the BIA to address all of these issues in the first instance—including the
impact of Laparra as well as Niz-Chavez on these proceedings—consistent
with our traditional understanding of national sovereignty and deference to
the Executive Branch on matters of border enforcement and the exclusion of
aliens. It is for that reason that I dissent from the denial of rehearing en banc.
22