Antonio Sicat v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
MAY 10 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO PATIO SICAT, No. 16-73690
Petitioner, Agency No. A076-686-405
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 14, 2018
San Francisco, California
Before: BERZON and BEA, Circuit Judges, and BERG,** District Judge.
Antonio Sicat, a 50-year-old native and citizen of the Philippines, was
ordered removed in absentia by an immigration judge (IJ) in March 2016. The IJ
denied Sicat’s motion to reopen his removal proceedings and to rescind the order
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Terrence Berg, United States District Judge for the
Eastern District of Michigan, sitting by designation.
of removal, and the Board of Immigration Appeals (BIA) affirmed. We hold the
BIA and IJ abused their discretion in denying Sicat’s motion,1 GRANT the petition
for review, and REMAND with instructions for the IJ to hold an evidentiary
hearing on the motion to reopen.
1. Sicat moved to reopen his removal proceedings on the ground that he
never received notice of the hearing. See 8 U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R.
§ 1003.23(b)(4)(ii). When the immigration court sends a hearing notice by regular
mail, there is only a “slight” or “weak[]” presumption that the notice was delivered
to the recipient. See Sembiring v. Gonzales, 499 F.3d 981, 987 (9th Cir. 2007);
Matter of M-R-A-, 24 I. & N. Dec. 665, 673 (BIA 2008).
“Where a petitioner actually initiates a proceeding to obtain a benefit,
appears at an earlier hearing, and has no motive to avoid the hearing, a sworn
affidavit . . . that neither she nor a responsible party residing at her address
received the notice should ordinarily be sufficient to rebut the presumption of
delivery . . . .” Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002). In making that
determination, the IJ may consider, among other things, the affidavits of the
petitioner and her family members; a petitioner’s prior applications and current
1
We review the decisions of both the BIA and IJ when the BIA relies in part
on the IJ’s reasoning. Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016).
2
statutory eligibility for relief, which may be evidence of her motive to appear at (or
avoid) a hearing; and a petitioner’s “previous attendance at Immigration Court
hearings.” Matter of M-R-A-, 24 I. & N. Dec. at 674.
Sicat submitted affidavits from himself, his wife, and his adult daughter that
no one at his address received a hearing notice from the immigration court. Sicat
had previously pursued, intended to pursue further, and actually did pursue further,
adjustment of status based on his marriage to a United States citizen, though at the
time of his hearing he lacked the approved family visa petition (Form I-130)
needed to adjust his status.2 Sicat had attended all ten of his previous immigration
court hearings going back to 2010.
No other circumstances suggested a “motive to avoid the hearing” at issue.
Salta, 314 F.3d at 1079.
Although Sicat missed his visa interview with U.S. Citizenship and
Immigration Services, his wife and attorney appeared at the interview and
explained his absence. As noted, Sicat had attended each of his ten immigration
court hearings over several years before missing his visa interview. The denial of
his wife’s I-130 petition—which Sicat needed to adjust his status—was without
2
Concurrently with Sicat’s motion to reopen his proceedings, his wife filed
a new I-130 petition on Sicat’s behalf and Sicat re-applied for adjustment of status.
3
prejudice. She thus could have, and later did, file another petition on his behalf.
Sicat’s ineligibility for immigration relief at the moment of his scheduled hearing
was therefore not strongly probative of a motive to avoid his removal proceedings;
had he known of the hearing, his wife could have filed the I-130 petition before it
was held, and could then have sought a continuance of the hearing. See Matter of
M-R-A-, 24 I. & N. Dec. at 674. In giving “significant weight” to Sicat’s
provisional ineligibility for relief, improperly applying the presumption that his
current marriage was entered to procure an immigration benefit, and according
only “limited weight” to the consistent affidavits of Sicat and his family members,
the IJ “failed properly to weigh the positive and negative factors in exercising [his]
discretion.” Virk v. INS, 295 F.3d 1055, 1056 (9th Cir. 2002). Likewise, Sicat’s
absence at one visa interview after appearing consistently at immigration hearings
before that, and the absence of any returned mail in the administrative record—a
circumstance for which there are in common experience ready explanations other
than receipt of the mail—did not outweigh the family’s affidavits.3
3
The IJ assigned weight to Sicat’s purported failure to challenge his removal
order until he was detained by ICE. But it makes little sense to hold that against
him when his very claim is that he did not receive notice of the hearing or removal
order until he was detained.
4
To the extent the IJ failed to credit the family’s affidavits because they were
“self-serving” and “made at the cusp of . . . removal,” or because they failed to
allege other examples of defective mail delivery, those characterizations also
improperly weighed the evidence. See Bhasin v. Gonzales, 423 F.3d 977, 987 (9th
Cir. 2005). Under these circumstances, the sworn affidavits of Sicat and his family
were sufficient to overcome the presumption of delivery. See Salta, 314 F.3d at
1079.
2. Sicat has rebutted the presumption of delivery, see id., but an issue of fact
remains as to whether he can “demonstrate that [he] did not receive notice.” 8
U.S.C. § 1229a(b)(5)(C)(ii). That issue of fact is for the agency to resolve first,
INS v. Ventura, 537 U.S. 12, 17 (2002), and Sicat is “entitle[d] . . . to an
evidentiary hearing” on the issue of receipt. Salta, 314 F.3d at 1079–80
(remanding to the IJ for an evidentiary hearing on the notice issue). We remand to
the BIA with instructions to remand to the IJ for a hearing to resolve whether Sicat
received notice of his March 2016 removal hearing, and whether he is
correspondingly entitled to rescission of his removal order and consideration on the
merits as to whether he is entitled to adjustment of status.4
4
We note that the dissent is largely based on the conclusion that Sicat is not
entitled to such adjustment, but that is a decision to be made in due course.
5
Petition GRANTED and REMANDED.
6
FILED
Antonio Patio Sicat v. Sessions, No. 16-73690 MAY 10 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BEA, Circuit Judge, dissenting:
This court “will reverse the denial of a motion to reopen only if the Board
acted ‘arbitrarily, irrationally, or contrary to law.’” Maravilla Maravilla v.
Ashcroft, 381 F.3d 855, 857 (9th Cir. 2004) (quoting Singh v. INS, 213 F.3d 1050,
1052 (9th Cir. 2000)). In rendering its decision today, the majority ignores this
deferential standard and instead supplants the decision of the immigration judge
(“IJ”) with its own, effectively exercising de novo review rather than the abuse of
discretion review which this case requires. See Yang v. Lynch, 822 F.3d 504, 508
(9th Cir. 2016). Because I do not believe the Board of Immigration Appeals
(“BIA”) acted “arbitrarily, irrationally, or contrary to law” when it denied
Petitioner Sicat’s motion to reopen, I dissent.
I
Since entering the United States under a false name in 1989, Sicat has been
married four times to four different women. 1 The first marriage lasted less than
seven months. During each of the last three, Sicat has attempted to use his nuptials
to obtain a legal immigration status. When his third wife, Sheila Castillo, filed a
1
There is a fifth woman with whom Sicat apparently maintains a relationship:
Zenaida Dizon. Dizon is the mother of each of Sicat’s three children, all of whom
were born while Sicat was “married” to other women. Not surprisingly, it appears
Dizon is not a U.S. Citizen, and so marrying her would have violated the one
cardinal rule of Sicat’s matrimonial decisions.
1
Petition for Alien Relative on his behalf, U.S. Customs and Immigration Services
(“USCIS”) conducted a site visit to investigate the bona fides of the marriage. The
investigators concluded that “strong evidence” suggested the marriage was
“entered into for the purpose of evading immigration laws.” 2 On December 2,
2009, USCIS denied Sicat’s application for adjustment to lawful permanent status.
On February 2, 2010, he was placed in removal proceedings. The Department of
Homeland Security (“DHS”) issued him a Notice to Appear the next day.
In immigration proceedings, Sicat sought again to adjust his status. The IJ
held a hearing on his adjustment application on March 6, 2012. However, before
the IJ could rule on the application, USCIS issued a notice of intent to revoke its
approval of the Petition for Alien Relative based on his marriage to Castillo.
USCIS revoked the Petition for Alien Relative on August 15, 2012.
On April 5, 2013, Sicat filed for dissolution of his marriage to Castillo. The
couple divorced on November 26, 2013. Wasting no time at all, Sicat married his
fourth wife, Allison Chow, the following week, with removal proceedings still
pending. Chow filed a Petition for Alien Relative on Sicat’s behalf on April 9,
2014. In light of the new petition, Sicat filed a motion to continue his next hearing
2
Investigators observed, among other things, that Sicat’s purported wife did not
appear to live at the house and, when asked, occupants of the house gave varying
answers as to her whereabouts. They also observed that the alleged marital
bedroom contained two beds, in which the children were sleeping, and very few
items of women’s clothing.
2
while the petition was adjudicated by USCIS. Instead, the IJ administratively
closed the proceedings on May 20, 2014.
USCIS began investigating Sicat’s marriage to Chow. As part of the
investigation, Sicat was scheduled to appear with Chow for an interview regarding
her Petition for Alien Relative on December 29, 2014. He did not show.
Consequently, USCIS denied the petition as abandoned on January 8, 2015.
On August 19, 2015, Sicat filed a change of address form with the
immigration court, providing his new address at 416 Castle Street, Daly City, CA.
He also filed a signed form acknowledging that “if [he] miss[es] a court date, [he]
can be ordered removed.” Two months later, on October 14, 2015, DHS moved to
recalendar Sicat’s removal proceedings. The IJ granted the motion to recalendar
on November 16, 2015, set a status hearing for that March, and sent by mail a copy
of the order to Sicat at his Castle Street address.
Sicat did not show up to the status hearing and, as a result, the IJ ordered
him removed in absentia. On May 12, 2016, Sicat was detained by Immigration
and Customs Enforcement (ICE). He immediately retained counsel, and Chow
filed a new Petition for Alien Relative. On May 24, 2016, Sicat filed a motion to
reopen the removal proceedings, claiming that he had not received notice of the
hearing scheduled after his case was recalendared. In support of the motion, he
submitted declarations from himself, Chow, and his oldest daughter. In the
3
declarations, each declarant claims to live at the residence and never to have seen
correspondence from the immigration court.
The IJ denied Sicat’s motion to reopen, reasoning that while an in absentia
order can be reopened at any time due to deficient notice, a notice mailed to the
alien’s last provided address by regular mail is entitled to a presumption of
effective delivery. This presumption, however, is rebuttable based on
consideration of the non-exhaustive list of factors set forth in Matter of M-R-A-, 24
I. & N. Dec. 665, 673–75 (BIA 2008). Analyzing these factors, the IJ found that
Sicat had not rebutted the presumption. Specifically, the IJ found that the
declarations should be given little weight because, although they stated that all
immigration-related mail had failed to arrive, they did not report that any other
mail had gone missing. Moreover, none of the mail had been returned as
undelivered; Sicat did not seek to reopen the proceedings until he had been
detained; and his questionable status, in light of USCIS’s recent denial of his
Petition for Alien Relative, gave him a motive not to show up.
Sicat appealed the denial of reopening to the BIA on July 1, 2016,
contending that the IJ had given the presumption of delivery too much weight and
that the declarations should have been enough to rebut the presumption. On
November 9, 2016, the BIA dismissed the appeal “for the reasons given in [the
IJ’s] decision.” On November 21, 2016, Sicat timely appealed.
4
II
An order of removal entered in absentia may be rescinded “upon a motion to
reopen . . . if the alien demonstrates that the alien did not receive notice.” 8 U.S.C.
§ 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(ii). For notice delivered by regular
mail, there is a presumption of effective service. Salta v. INS, 314 F.3d 1076, 1079
(9th Cir. 2002). However, as this court and the BIA have recognized, the
presumption of delivery by regular mail is not a strong one. See id.; M-R-A-, 24 I.
& N. Dec. at 673 (“[W]hen a respondent seeks to reopen proceedings based on a
claim of lack of receipt of notice, the question to be determined is whether the
respondent has presented sufficient evidence to overcome the weaker presumption
of delivery attached to notices delivered by regular mail”). In M-R-A-, the BIA
identified a non-exhaustive list of factors an IJ is to consider in determining
whether the presumption has been rebutted:
(1) [T]he respondent’s affidavit; (2) affidavits from family members
or other individuals who are knowledgeable about the facts relevant to
whether notice was received; (3) the respondent’s actions upon
learning of the in absentia order, and whether due diligence was
exercised in seeking to redress the situation; (4) any prior affirmative
application for relief, indicating that the respondent had an incentive
to appear; (5) any prior application for relief filed with the
Immigration Court or any prima facie evidence in the record or the
respondent’s motion of statutory eligibility for relief, indicating that
the respondent had an incentive to appear; (6) the respondent’s
previous attendance at Immigration Court hearings, if applicable; and
(7) any other circumstances or evidence indicating possible nonreceipt
of notice.
5
24 I. & N. Dec. at 674. After reciting the factors, the BIA noted that “these are just
examples of the types of evidence that can support a motion to reopen.” Id.
Emphasizing the discretion afforded to the IJ in ruling on a motion to reopen, the
BIA clarified that IJs are “neither required to deny reopening if exactly such
evidence is not provided nor obliged to grant a motion, even if every type of
evidence is submitted.” Id. Rather, “[e]ach case must be evaluated based on its
own particular circumstances and evidence.” Id.
III
Here, the BIA considered the M-R-A- factors, in the context of this particular
case, and concluded that the weight of the evidence favored denying the motion.
The IJ’s decision, which was expressly adopted by the BIA, conceded that several
factors weighed in Sicat’s favor:
(1) Sicat and two family members filed declarations attesting that they never
saw a notice from the immigration court. See M-R-A-, 24 I. & N. Dec. at
674 (weighing “respondent’s affidavit” and “affidavits from family members
or other individuals who are knowledgeable about the facts relevant to
whether notice was received”);
(2) Sicat had a record of diligent attendance before the immigration court in ten
prior hearings dating back to August 4, 2010. See id. (weighing “the
respondent’s previous attendance at Immigration Court hearings, if
applicable”);
(3) The instant proceedings were initiated when Sicat arrived in the United
States to pursue an adjustment of status application. See Salta, 314 F.3d at
1079 (treating petitioner’s initiation of a proceeding “to obtain a benefit” as
a factor weighing in his favor).
6
Nevertheless, the IJ also noted that “several factors weigh[ed] against
reopening [Sicat’s] case.” The IJ (or BIA, as the case may be) 3 explained:
(1) “[T]he circumstantial evidence in the record (the absence of returned mail)
indicates that [Sicat] received” the notice and order. See M-R-A-, 24 I. & N.
Dec. at 674 (weighing “other circumstances or evidence”);
(2) Sicat “took no action to challenge his in absentia order until he was detained
by immigration officers.” See id. (weighing “the respondent’s actions upon
learning of the in absentia order”);
(3) Sicat “is not statutorily eligible for relief” because (a) his third wife’s
Petition for Alien Relative was denied based on the finding that the marriage
was a sham and (b) he married his fourth wife while the immigration
proceedings were pending. See Sharma v. Holder, 633 F.3d 865, 871 (9th
Cir. 2011) (holding that marrying while in removal proceedings creates a
presumption “that the purpose is to ‘procure the alien’s admission as an
immigrant’”) (citing 8 U.S.C. § 245(e)); see also M-R-A-, 24 I. & N. Dec. at
674 (weighing “prima facie evidence in the record . . . of statutory eligibility
for relief, indicating that the respondent had an incentive to appear [or not to
appear]”);
(4) None of the affidavits filed “allege other defects in the postal service’s
execution of their duties—only non-delivery of mail from immigration-
related government agencies has been alleged.” See id. (weighing “other
circumstances or evidence”);
(5) Sicat’s “failure to appear at his USCIS interview as a potential [Petition for
Alien Relative] beneficiary after receiving actual notice refutes the link
between the receipt of a notice and appearance before an immigration
official that ordinarily exists.” By choosing not to attend his USCIS
interview, despite having actual notice, Sicat undermined the credibility he
3
This court reviews the BIA opinion to the extent it renders its own decision
without adopting the IJ’s, and it examines the IJ’s decision to the extent it is
incorporated by the BIA. Kalubi v. Ashcroft, 364 F.3d 1134, 1137 n.3 (9th Cir.
2004). Here, the BIA adopted the reasoning of the IJ and added some of its own
reasoning. Thus, I examine the relevant portions of both decisions.
7
now has to claim his notice was lost in the mail. See id. (weighing
“respondent’s previous attendance” and “other circumstances or evidence”);
(6) “The denial of the [Petition for Alien Relative] undermines [Sicat’s]
incentive to appear at future removal hearings.” See id. (weighing “prima
facie evidence in the record . . . of statutory eligibility for relief, indicating
that the respondent had an incentive to appear”);
(7) Sicat’s wife “did not move to file a new [Petition for Alien Relative] until
May 2016,” after Sicat had been detained by INS. See id. (weighing “any
prior application for relief filed with the Immigration Court . . . indicating
that the respondent had an incentive to appear”);
(8) Thus, while Sicat “may have previously demonstrated a desire to pursue his
rights in these proceedings, his most recent actions indicate a lack of
diligence in pursuing his case.” See id. (weighing “whether due diligence
was exercised in seeking to redress the situation”).
Based on a thorough examination of the record and consideration of the M-
R-A- factors, the BIA concluded that Sicat had “not presented sufficiently
persuasive evidence to overcome the presumption that the Postal Service properly
delivered the [notice of hearing].” Given the evidence, this conclusion was not
“arbitrar[y], irrational[ ], or contrary to law.” See Maravilla, 381 F.3d at 857. Nor
was it an abuse of discretion, given the deference afforded to the IJ under M-R-A-,
24 I. & N. Dec. at 674 (holding that the IJ is not “obliged to grant a motion [to
reopen], even if every type of evidence [from the factors] is submitted”).
For this reason, I disagree with the majority’s conclusions that (1) the IJ
“improperly weighed the evidence” and (2) remand is necessary “to resolve
whether Sicat received notice of his March 2016 removal hearing.” As explained
in detail above, the IJ applied the M-R-A- factors and weighed the evidence in a
8
way that was not “arbitrar[y], irrational[ ], or contrary to law.” See Maravilla, 381
F.3d at 857. Accordingly, no remand is necessary.
I would deny the petition, and therefore I respectfully dissent.
9