Jose Mejia v. Matthew Whitaker
Opinion
*486 Jose Santos Mejia petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his motion to reopen his removal proceedings so that he could apply for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We dismiss in part for lack of jurisdiction and deny in part. 1
I
Mejia, a native and citizen of Honduras, entered the United States on August 30, 2004, without having been admitted or paroled after inspection by an immigration officer. Immigration authorities served Mejia in person with a Notice to Appear (NTA) in removal proceedings and subsequently released him. The NTA did not provide a date for Mejia's hearing. When a hearing date was later set, a notice of the hearing (NOH) was not sent to Mejia. In November 2004, an immigration judge (IJ) in Texas held an in absentia hearing, found Mejia subject to removal, and ordered him removed to Honduras. The removal order stated that Mejia did not receive a NOH because he failed to provide his address to the immigration court. In November 2010, immigration authorities apprehended Mejia, and he was removed to Honduras in December.
Mejia reentered the United States in May 2011. In June 2014, immigration authorities again apprehended Mejia, and the Department of Homeland Security reinstated his prior removal order. Mejia claims that he did not receive a copy of the reinstatement order until October 24, 2014. On the same day, Mejia filed a motion to reopen his prior removal proceedings to apply for asylum, withholding of removal, and protection under the CAT, which he claims he filed before he received notice of the reinstatement of his prior removal order. Mejia argued that his motion to reopen should be considered timely because he did not receive notice of his removal hearing and because, according to him, country conditions in Honduras had materially changed.
The IJ denied Mejia's motion. The IJ concluded that Mejia was not entitled to notice of the 2004 removal hearing because he failed to provide a valid address to the immigration court. The IJ further found that Mejia failed to show a material change in country conditions. Finally, the IJ determined that Mejia was not eligible for sua sponte reopening by the immigration court. Mejia appealed to the BIA, and the BIA upheld the IJ's denial of reopening for essentially the same reasons the IJ provided. Mejia now petitions this court for review of the BIA's decision.
II
Mejia challenges the BIA's denial of his motion to reopen. Generally, the Immigration and Naturalization Act (INA) allows a party to file one motion to reopen deportation proceedings no later than ninety days after the date on which the final administrative decision was entered in the proceedings. See 8 U.S.C. § 1229a(c)(7)(A), (D)(i). Here, Mejia filed *487 his motion to reopen in 2014, approximately ten years after the immigration court issued his prior removal order in 2004. His motion to reopen therefore exceeded the ninety-day statutory deadline.
There are a number of exceptions to the statutory deadline, under which an otherwise untimely motion to reopen may be granted. Three such exceptions are relevant here. First, an individual's motion to reopen on the basis that he did not receive proper notice of his initial removal proceeding can be filed at any time.
See
id.
§ 1229a(b)(5)(C)(ii). Second, there is no time limit for a motion to reopen if it is made for purposes of applying for asylum or withholding of removal "based on changed country conditions arising in the country of nationality, if such evidence is material" and could not have been presented at the previous proceeding.
Id.
§ 1229a(c)(7)(C)(ii). Finally, the BIA may reopen removal proceedings at any time on its own motion.
See
Mata v. Lynch
, --- U.S. ----,
A
First, Mejia argues that the BIA abused its discretion in denying his motion to reopen because, he asserts, he was improperly denied notice of the hearing in his original removal proceedings. See 8 U.S.C. § 1229a(b)(5)(C)(ii). He challenges the BIA's finding that he did not provide his address to the immigration court and the BIA's conclusion that he was therefore not entitled to notice.
We must first determine whether we have jurisdiction to review the BIA's denial of Mejia's motion to reopen despite Mejia's lack-of-notice argument. We examine our jurisdiction on our own motion when necessary.
Green Tree Servicing, L.L.C. v. Charles
,
Section 1231(a)(5) provides that, "If the Attorney General finds that an alien has reentered the United States illegally after having been removed ..., the prior order of removal is reinstated from its original date."
Additionally, Mejia is not required to show a gross miscarriage of justice to trigger jurisdiction. Under this court's precedent, we lack jurisdiction to consider a collateral attack on an underlying order of removal unless the petitioner demonstrates that he has exhausted administrative remedies and that the initial removal proceedings constituted a "gross miscarriage of justice."
Ramirez-Molina v. Ziglar
,
We review the denial of a motion to reopen under a "highly deferential abuse-of-discretion standard ...."
Gomez-Palacios v. Holder
,
A NTA or notice of a change in time or place of removal proceedings should be personally served, but may be mailed when personal service is not feasible.
See
The BIA found that, under § 1229(a)(1)(F) and § 1229a(b)(5)(B), Mejia bore the obligation to inform the immigration *489 court of his correct address. Because he did not do so, the BIA determined he was not entitled to notice of the hearing before he was removed in absentia.
Mejia contends that the evidence reflects that he notified ICE officers that he was going to live with his mother, and that the officers confirmed the correct address of his mother. As the BIA noted, however, the evidence in the record is equivocal regarding the information Mejia provided to immigration authorities upon his release in 2004. The record shows that agents released Mejia due to lack of detention funds. He told them that he was en route to his mother's house but provided no address, only a phone number. When agents called Mejia's mother, she provided an address that conflicted with the address they found in the public records. The evidence does not indicate whether agents confirmed which was the correct address or what, if anything, they did with the information. Moreover, as the BIA found, the NTA informed Mejia in writing of his obligation to provide a current address to the immigration court. Contrary to Mejia's contention, the lack of clarity in the record does not require remand: an ambiguous record does not compel a conclusion contrary to the BIA's determination that Mejia was not entitled to reopening based on lack of notice.
2
See
Gomez-Palacios
,
The BIA therefore acted within its discretion in declining to reopen Mejia's in absentia removal proceedings based on lack of notice. See 8 U.S.C. § 1229a(b)(5)(C)(ii).
B
Mejia next contends that the BIA abused its discretion in denying his motion to reopen because, he claims, conditions in Honduras had materially changed.
See
8 U.S.C. § 1229a(c)(7)(C)(ii). "In determining whether there has been a material change in country conditions, the BIA compares 'the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below.' "
Zhenghao Liu v. Holder
,
Here, the BIA agreed with the IJ that Mejia failed to show changed conditions in Honduras, concluding that Mejia's new evidence established only a "continuation of essentially the same conditions" of "gang violence, crime, and extortion" in Honduras. In his petition for review, Mejia contends that his evidence, in fact, shows a "steady increase in both gang-related violence and the Honduran government's inability or unwillingness to effectively deal with that violence."
We do not reach the merits of this claim, because we conclude we lack jurisdiction under
C
Finally, Mejia challenges the BIA's conclusion that he was not eligible for sua sponte reopening.
See
D
Mejia makes a number of other claims that cannot, on their own, support reopening. He asserts that the BIA ignored a statement by the IJ that his motion to reopen would be denied as a matter of discretion "even assuming changed country conditions," and he claims this statement was based on a legal error. Because, as previously explained, we lack jurisdiction to review the BIA's determination that Mejia has not established a material change in country conditions, we need not address this claim.
Next, Mejia argues that he has established his eligibility for asylum, withholding of removal, and protection under the CAT. To the extent he maintains that meritorious claims of eligibility for relief independently entitle him to reopening beyond the statutory deadline, Mejia cites no authority and provides no explanation for this proposition. Any such argument is therefore forfeited.
See, e.g.
,
SEC v. Life Partners Holdings, Inc.
,
Finally, Mejia contends that the BIA violated "established motion procedure" when it denied his motion to reopen because, he argues, he established prima facie eligibility for relief. However, to the extent Mejia contends that a prima facie case for relief can serve as an exception to *491 the ninety-day filing deadline for motions to reopen, he provides no support for this proposition.
III
For the foregoing reasons, the petition is DISMISSED in part for lack of jurisdiction and DENIED in part.
We previously issued an opinion dismissing Mejia's claim of lack of notice as a ground for reopening his original removal proceedings for lack of jurisdiction.
See
Mejia v. Sessions
,
Mejia also avers that a federal regulation required ICE to communicate his address to the immigration court. Aside from the question of whether Mejia provided ICE an address in light of his mother's provision of an incorrect address, Mejia has failed to exhaust this argument by presenting it to the BIA, and this court thus lacks jurisdiction to address it.
See
Omari v. Holder,
Mejia's contention that the reinstatement order came after "the motion [to reopen] and does not preclude it," and that the Government did not argue before the BIA that that § 1231(a)(5) applied to his motion, fail. Section 1231(a)(5) expressly provides that a prior order of removal is reinstated "from its original date" and "is not subject to being reopened." This language forecloses Mejia's argument that § 1231(a)(5) 's mandate does not apply to reopening proceeding that are pending at the time of the reinstatement. Moreover, Mejia's objection that the Government did not raise this issue before the BIA is irrelevant, as § 1231(a)(5) 's limitations are jurisdictional,
Martinez v. Johnson
,
Reference
- Full Case Name
- Jose Santos MEJIA, Also Known as Jose Santos Zavala-Mejia, Petitioner v. Matthew G. WHITAKER, Acting U. S. Attorney General, Respondent
- Cited By
- 47 cases
- Status
- Published