Roberto Mauricio-Benitez v. Jefferson Sessions, II
Opinion
*146 Petitioner Roberto Enrique Mauricio-Benitez, a native and citizen of El Salvador, seeks review of a final order of removal issued by the Board of Immigration Appeals (BIA). He contends that the BIA erred in refusing to reopen his removal proceedings because he never received notice of his removal hearing. Because Mauricio-Benitez failed to provide the immigration court with his correct mailing address, and because he failed to rebut the weak presumption of delivery of his notice of hearing (NOH), we DENY his petition for review.
I.
On or around June 13, 2004, Mauricio-Benitez entered the United States near Roma, Texas, without being admitted or paroled. The same day, the Department of Homeland Security (DHS) personally served him with a Notice to Appear (NTA) charging him with being removable under
The NTA also contained instructions regarding Mauricio-Benitez's mailing address. It stated that he was required to provide the DHS with his address in writing and warned him to "notify the Immigration Court immediately" if he changed his address because "[n]otices of hearing [would] be mailed to this address." In addition, it notified Mauricio-Benitez that if he did not provide an address at which he could be reached during his removal proceedings, he would not be entitled to receive written notice of his hearing. The mailing address listed on the NTA was "4010 West Belfor d Apt. 705," whereas Mauricio-Benitez claims that his correct address at the time was "4010 West Belfor t Apt. 705." According to Mauricio-Benitez, he provided the correct address, but an immigration officer introduced the spelling error when preparing the NTA. There is no indication in the record that he corrected the address when he received the NTA.
The following month, the DHS sent a NOH to Mauricio-Benitez at the West Belford address via regular mail. The NOH informed Mauricio-Benitez that his removal hearing had been scheduled for September 21, 2004, and again warned him of the consequences of failing to appear. Mauricio-Benitez did not attend the hearing, and the IJ entered an in absentia order for his removal to El Salvador.
Almost thirteen years later, in June 2017, Mauricio-Benitez filed a motion to reopen his removal proceedings and rescind the in absentia removal order. He alleged that he had never received notice of his removal hearing, and, as a result, he did not find out about the order until his attorney filed a Freedom of Information Act (FOIA) request in January 2017. He also contended that he first learned of the spelling error in the mailing address on his NTA through the FOIA request.
The IJ denied Mauricio-Benitez's motion. She first observed that Mauricio-Benitez "did not provide the Court with an address change, as required by the regulations," to correct the NTA or when he moved from the address listed on the NTA six months later. Thus, the IJ found that the immigration court was only required to
*147
send the NOH to the last mailing address it had on file-the West Belford address. Accordingly, Mauricio-Benitez had received proper notice of his removal hearing under
Mauricio-Benitez appealed the IJ's decision to the BIA, again arguing lack of notice of the removal hearing. The BIA first observed that Mauricio-Benitez's NOH had been mailed to the address listed on the NTA and that the NOH had not been returned as undeliverable. It then dismissed the appeal on two alternative grounds: (1) Mauricio-Benitez had not provided sufficient evidence to rebut the presumption of delivery of the NOH; and (2) Mauricio-Benitez was "not entitled to actual notice of his hearing" because he had failed to correct the mistake in the address on the NTA with the immigration court. Mauricio-Benitez timely filed a petition for review.
II.
Motions to reopen removal proceedings are disfavored,
Altamirano-Lopez v. Gonzales
,
III.
Mauricio-Benitez advances two arguments in his petition for review: (1) the BIA erred in finding that he was not entitled to actual notice of his removal hearing; and (2) the BIA's conclusion regarding the presumption of delivery of his NOH was contrary to this court's and the BIA's prior decisions. We will address each of his arguments in turn.
A.
Under
In concluding that Mauricio-Benitez was not entitled to actual notice of his removal hearing, the BIA observed that he had been personally served with a NTA emphasizing *148 the significance of the mailing address requirements, but he still took no action to inform the immigration court about the spelling error. Mauricio-Benitez counters that the NTA and relevant regulations only required him to notify the immigration court of a change in address, not a correction to the address already on file. He further insists that even if he had such a duty to correct his address, he "had no reason to believe" the address on file was incorrect until he filed his FOIA request in 2017. He argues this even though the NTA itself, which he received in person, spelled the address incorrectly.
Our decision in
Gomez-Palacios
forecloses Mauricio-Benitez's argument.
See
Upholding the BIA's dismissal of the alien's appeal, we concluded that "an alien's failure to receive actual notice of a removal hearing due to his neglect of his obligation to keep the immigration court apprised of his current mailing address does not mean that the alien 'did not receive notice' under § 1229a(b)(5)(C)(ii)."
In several unpublished cases, we have extended the rule in
Gomez-Palacios
to cases where the alien did not fail to inform the immigration court of a
change
in address, but instead failed to correct an
error
in the address listed on the NTA.
See
Mejia-Urbina v. Sessions
,
*149 Here, Mauricio-Benitez was personally served with a NTA listing a mailing address that he contends was misspelled. Thus, he had notice of the error in his address upon receipt of the NTA on June 13, 2004-more than a month before the NOH was mailed to the misspelled address on July 21, 2004. The NTA warned Mauricio-Benitez of the importance of maintaining an accurate address with the immigration court, the consequences of failing to appear at his removal hearing, and that he would not be entitled to receive notice of his hearing if he did not provide an address at which he could be reached. Regardless of how the error in his address was introduced, Mauricio-Benitez had an obligation to correct that error with the immigration court. He failed to do so, and as a result he was not entitled to actual notice of his removal hearing. The BIA's conclusion on this point was not wrong, much less "capricious" or "without foundation in the evidence," so we must leave it undisturbed.
B.
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. 2
On a motion to reopen for lack of notice, "the focus of the rescission inquiry ... is on the actual receipt of the required notice and not whether the notice was properly mailed."
Gomez-Palacios
,
The BIA's conclusion on this issue focused on the absence of evidence in the record to prove that Mauricio-Benitez actually resided at the West Belfort address when the NOH was mailed; that the immigration officers did in fact misspell his address; that a West Belford address identical to the claimed West Belfort address existed; or that the post office would not have delivered the NOH to West Belfort despite the error. Emphasizing that neither the NOH nor the in absentia order was returned as undeliverable, the BIA found that the presumption of delivery of the NOH was not rebutted.
Mauricio-Benitez insists that the BIA's analysis misapplied our decision in
Maknojiya v. Gonzales
,
Beginning with
Maknojiya
, Mauricio-Benitez fails to acknowledge that the court there relied not only upon Maknojiya's affidavit, but also on its finding that "the record [did] not indicate that Maknojiya was attempting to avoid the immigration proceedings" in granting the petition for review.
In addition, the BIA's analysis was consistent with its own decision in
In re M-R-A-
, which noted that courts "may consider a variety of factors"-"not limited to" those listed-to determine whether an alien has rebutted the presumption of delivery.
Finally, the BIA did not err in refusing to permit reopening despite the fact that Mauricio-Benitez sought counsel and filed his motion soon after discovering the
in absentia
order through a FOIA request. While the BIA granted the motion to reopen in
In re M-R-A-
in part on this basis, the alien there filed his motion less than a month after his failure to appear at his removal hearing.
Accordingly, the BIA's determination that Mauricio-Benitez failed to rebut the presumption of delivery of regular mail was not "irrational" or "arbitrary." As a result, we must uphold its dismissal of his appeal.
IV.
For the reasons discussed, Mauricio-Benitez's petition for review is DENIED.
The Supreme Court's recent decision in
Pereira v. Sessions
, --- U.S. ----,
Cancellation is a form of discretionary relief that an immigration court may award to aliens "who are subject to removal proceedings and have accrued 10 years of continuous physical presence in the United States[.]"
Id.
at 2109. An alien's period of continuous physical presence for purposes of cancellation ends when the alien is served a NTA that fully complies with the statutory requirements.
Id.
The filing of the NTA, in turn, initiates removal proceedings against the alien, during which the alien may request cancellation.
See
Because the issues in this case pertain only to reopening,
Pereira
's rule regarding cancellation is inapplicable.
See, e.g.
,
Ramat v. Nielsen
,
This alternative holding is not dicta. In this circuit, "alternative holdings are binding precedent and not
obiter dicta
."
Whitaker v. Collier
,
Reference
- Full Case Name
- Roberto Enrique MAURICIO-BENITEZ, Also Known as Roberto Sanchez-Fajardo, Petitioner, v. Jefferson B. SESSIONS, III, U.S. Attorney General, Respondent.
- Cited By
- 77 cases
- Status
- Published