Rodriguez v. Garland

Case: 20-60008 Document: 00516030841 Page: 1 Date Filed: 09/27/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 27, 2021
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
Agency No. A207 311 796
Before Higginbotham, Willett, and Duncan, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Marcelo Eugenio Rodriguez seeks review of the dismissal of his appeal
by the Board of Immigration Appeals (“BIA”). Rodriguez’s appeal
challenged the immigration judge’s denial of his motion to reopen removal
proceedings and rescind his in absentia removal order. We grant his petition,
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No. 20-60008
vacate the dismissal by the BIA, and remand for further proceedings
consistent with Niz-Chavez v. Garland. 1
I
Rodriguez, a native and citizen of Uruguay, entered the United States
on a visitor visa on February 16, 2002. Upon his marriage to a U.S. citizen in
2014, Rodriguez adjusted his status to that of a conditional permanent
resident.
On January 30, 2018, Rodriguez was served with a notice to appear
(“NTA”) at his address in Pasadena, Texas, charging him with removability
because he and his wife failed to file a required petition. The NTA did not
contain the time and date of his immigration hearing. The immigration court
subsequently sent a notice of hearing (“NOH”) to Rodriguez’s Pasadena
address. Rodriguez asserts he did not receive the NOH because he had
moved to Georgetown, Texas, after separating from his wife. Consequently,
Rodriguez did not appear at his hearing on March 12, 2018, where the
immigration judge ordered him removed in absentia.
In July 2018, upon discovering the in absentia removal order,
Rodriguez moved to rescind his removal order and reopen removal
proceedings pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii). Rodriguez urged that
he did not receive the NOH and that the NTA he received was insufficient
notice under the Supreme Court’s decision in Pereira v. Sessions. 2
The immigration judge denied Rodriguez’s motion. Rodriguez
appealed to the BIA, which affirmed the immigration judge’s decision and
dismissed the appeal. The BIA first concluded that Rodriguez failed to rebut
1
141 S. Ct. 1474 (2021).
2
138 S. Ct. 2105 (2018).
2
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the presumption of receipt for the NOH. Second, it relied on BIA and Fifth
Circuit precedent to find that the NTA combined with the subsequent NOH
containing the time and place of Rodriguez’s hearing “satisfied the written
notice requirements of [8 U.S.C. § 1229(a)].” Rodriguez now petitions for
review of the BIA’s decision.
II
This Court applies “a highly deferential abuse-of-discretion standard
in reviewing the denial of a motion to reopen removal proceedings.” 3 The
BIA “abuses its discretion when it issues a decision that is capricious,
irrational, utterly without foundation in the evidence, based on legally
erroneous interpretations of statutes or regulations, or based on unexplained
departures from regulations or established policies.” 4 We review the BIA’s
conclusions of law de novo but give deference to its reasonable interpretation
of immigration regulations and its findings of fact for substantial evidence. 5
III
Rodriguez raises two arguments in his petition for review. First, he
asserts that he did not receive proper notice pursuant to Pereira v. Sessions.
Second, he argues that he overcomes the presumption of receipt for the
NOH. Because we conclude that the BIA based its decision on a legally
erroneous interpretation of § 1229(a), we only address his first argument.
Under 8 U.S.C. § 1229a(b)(5)(C)(ii), an in absentia removal order
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 [8
3
Hernandez-Castillo v. Sessions, 875 F.3d 199, 203 (5th Cir. 2017).
4
Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014).
5
Id.3
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U.S.C. § 1229(a)].” 6 Section 1229(a) requires that “written notice (in this
section referred to as a ‘notice to appear’) shall be given” in removal
proceedings, and it specifies certain notice requirements including “[t]he
time and place at which the proceedings will be held.” 7
The interpretation of § 1229(a)’s notice requirements has been the
subject of dispute in recent years, mostly in the context of the stop-time rule.
While the stop-time rule is not at issue in this case, it textually references
§ 1229(a) like the recission of in absentia removal provision at issue here. 8
The stop-time rule provides that “any period of continuous residence or
continuous physical presence in the United States shall be deemed to
end . . . when the alien is served a notice to appear under section 1229(a) of
this title.” 9 In Pereira v. Sessions, the Supreme Court held that in the context
of the stop-time rule, “[a] putative notice to appear that fails to designate the
specific time or place of the noncitizen’s removal proceedings is not a notice
to appear under section 1229(a), and so does not trigger the stop-time
rule.” 10 We subsequently limited Pereira to the stop-time rule 11 and
concluded that the written notice requirements under § 1229(a) could be
provided in multiple documents. 12 Thus, we reasoned that a defective notice
to appear could be “cured” by a subsequent notice of hearing. 13 However,
6
8 U.S.C. § 1229a(b)(5)(C)(ii).
7
8 U.S.C. § 1229(a)(1).
8
8 U.S.C. § 1229b(d)(1).
9
Id.
10
138 S. Ct. at 2113–14 (internal quotations omitted).
11
See Mauricio-Benitez v. Sessions, 908 F.3d 144, 149 n.1 (5th Cir. 2018).
12
Pierre-Paul v. Barr, 930 F.3d 684, 690–91 (5th Cir. 2019).
13
Id.4
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the Supreme Court’s recent decision in Niz-Chavez v. Garland made plain
that the § 1229(a) notice requirements must be included in a single
document. 14 The question now before us is whether the § 1229(a) notice
requirements as interpreted in the stop-time context in Pereira and Niz-
Chavez apply to the provision governing recission of an in absentia removal
order at issue in this case.
Rodriguez’s reliance on Pereira alone is misplaced because we
previously recognized that Pereira does not apply to petitioners seeking
reopening and rescission of in absentia removal orders. 15 We cannot say the
same of the Supreme Court’s decision in Niz-Chavez. While the controversy
in Niz-Chavez focused on the stop-time rule, 16 the Supreme Court
interpreted § 1229(a) separately from the stop-time statute. The Court held
that § 1229(a) “require[s] ‘a’ written notice containing all the required
information” and rejected the argument that the requisite notice could be
provided by multiple documents. 17 The Court reasoned that “[t]he singular
article ‘a’ thus falls outside the defined term (‘notice to appear’) and
modifies the entire definition. So . . . the law . . . still stubbornly require[s] ‘a’
written notice containing all the required information.” 18
Both the recission of an in absentia order provision and the stop-time
rule provision specifically reference the § 1229(a) notice requirements. 19 The
Court’s separate interpretation of the § 1229(a) notice requirements in Niz-
14
See 141 S. Ct. at 1480.
15
Mauricio-Benitez, 908 F.3d at 148 n.1.
16
141 S. Ct. at 1479–80.
17
Id. at 1480.
18
Id.
19
See 8 U.S.C. §§ 1229a(b)(5)(C)(ii), 1229b(d)(1).
5
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Chavez thus applies in the in absentia context. The specific textual reference
to § 1229(a) distinguishes these provisions from others we have considered,
including § 1227(a)(2)(A) at issue in Maniar v. Garland. 20 In Maniar, we
acknowledged that Niz-Chavez overruled the two-step notice process from
Pierre-Paul. 21 But because the provision at issue in Maniar does not reference
the § 1229(a) notice requirements, we held that a single notice that did not
include the time, date, and place of the initial hearing was a valid charging
document because it met the regulatory requirements. 22 Unlike the charging
document at issue in Maniar, the recission of an in absentia order provision
at issue here textually references § 1229(a). Under Niz-Chavez’s
interpretation of § 1229(a), we therefore require a single document
containing the required information in the in absentia context.
The initial NTA did not contain the time and date of Rodriguez’s
hearing. The BIA found that the NTA combined with the subsequent NOH
containing the time and place of Rodriguez’s hearing “satisfied the written
notice requirements of [8 U.S.C. § 1229(a)],” directly contrary to the
Supreme Court’s interpretation of § 1229(a) in Niz-Chavez which made clear
that subsequent notices may not cure defects in an initial notice to appear.
The BIA applied a “legally erroneous interpretation[].” 23
20
998 F.3d 235, 238 (5th Cir. 2021).
21
See id. at 242 n.2 (Niz-Chavez “undermines one of the rationales of our decision
in Pierre-Paul—namely, that a ‘two-step process comports with relevant statutory language
[1229(a)]’”).
22
Id. at 242.
23
Barrios-Cantarero, 772 F.3d at 1021.
6
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IV
We grant Rodriguez’s petition, vacate the BIA’s decision, and remand
for further proceedings consistent with Niz-Chavez.
7