Jose Ramos-Portillo v. William Barr, U. S. Atty Ge
Opinion
Jose Nicolas Ramos-Portillo, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals (BIA) that dismissed his appeal of the denial of his motion to reopen. We deny Ramos-Portillo's petition for review.
I.
In 1993, Ramos-Portillo entered the United States without inspection and was detained by the Immigration and Naturalization Service (INS) near Laredo, Texas. Immigration officials recorded Ramos-Portillo's information on Form I-213, entitled "Record of Deportable Alien," which listed "Canton Paplonia, San Miguel, El Salvador" as his permanent residence but did not include a U.S. address.
The INS released Ramos-Portillo after personally serving him with an Order to Show Cause and Notice of Hearing (OSC), written in both English and Spanish. The OSC informed Ramos-Portillo that he was *958 deportable for entering without inspection under Section 241(a)(1)(B) of the Immigration and Nationality Act and that a deportation hearing would "be calendared and notice provided by the office of the immigration judge." The OSC also stated that notice would be "mailed to the address provided by [Ramos-Portillo]." On its face, the OSC warned Ramos-Portillo that he "DID NOT PROVIDE A UNITED STATES ADDRESS" and that he was "required by law to provide immediately in writing an address ... where [he could] be contacted." Immigration officials provided Ramos-Portillo with a Form EOIR-33, entitled "Change of Address Form," with which he could provide his current mailing address to the immigration court. Ramos-Portillo signed a certificate of service, acknowledging his receipt of the OSC.
During the four-month period after his release, Ramos-Portillo did not send the Form EOIR-33 to the immigration court and subsequently failed to appear at his deportation hearing. The immigration judge (IJ) determined that because Ramos-Portillo "failed to inform the Attorney General of [his] address, ... no notice of the deportation hearing could be issued." Accordingly, the IJ ordered Ramos-Portillo to be deported in absentia .
More than 22 years later, Ramos-Portillo moved to reopen his proceedings and to rescind the in absentia deportation order. Ramos-Portillo insisted that he never received notice of the previous hearing and that there was no evidence that notice was sent to the Salvadoran address listed on the Form I-213. Therefore, Ramos-Portillo contended, he had "reasonable cause" for not appearing at the hearing. The IJ denied his motion, reasoning that the immigration court was not required to mail the notice of the hearing because Ramos-Portillo "did not provide his address as required."
Ramos-Portillo appealed the IJ's denial of his motion to reopen to the BIA, which dismissed his appeal. The BIA concluded that "there [was] no evidence in the record[ ] that [Ramos-Portillo] provided an address to the Immigration Court prior to the issuance of his in absentia deportation order"; and therefore, "no separate notice of the hearing was required to be mailed to [Ramos-Portillo] by the court." The BIA further determined that Ramos-Portillo failed to establish that "providing a foreign address [was] sufficient or that certified mail could be delivered to a foreign address." "Even assuming that a foreign address was acceptable for the purpose of providing notice of his hearing," the BIA reasoned that Ramos-Portillo failed to establish that he provided a valid mailing address. Ramos-Portillo now petitions for review.
II.
We review the denial of a motion to reopen under a highly deferential abuse-of-discretion standard.
Penalva v. Sessions
,
III.
A.
We begin with the relevant statutory framework. Because Ramos-Portillo's
in absentia
proceedings occurred in 1993, we apply the notice requirement set forth in 8 U.S.C. § 1252b (repealed 1996). Under the former § 1252b, an immigration court could order an alien who failed to attend his deportation hearing to be deported
in absentia
, if the government established "by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien [was] deportable."
Section 1252b(a)(1)(F) requires that an OSC further specify:
(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number at which the alien may be contacted respecting proceedings under section 1252 of this title.
(ii) The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien's address or telephone number.
(iii) The consequences ... of failure to provide address and telephone information pursuant to this subparagraph.
In turn, however, an alien has an affirmative duty to provide an "address ... at which [she] may be contacted respecting [the deportation] proceedings," and any changes of address, to the Attorney General.
2
An alien's failure to provide an address to the immigration court excuses the government's statutory obligation to provide written notice before initiating an
in absentia
proceeding. 8 U.S.C. § 1252b(c)(2) ("No notice shall be required ... if the alien has failed to provide the address required under subsection (f)(2) of this section."). In applying the newer version of the statute,
B.
In interpreting § 1252b(a)(1)(F)(i), Ramos-Portillo argues that § 1252b(a)(1)(F)(i) plainly allows an alien to satisfy his obligation to provide an address to the immigration court by providing a foreign address, because § 1252b(a)(1)(F)(i) only requires an address "at which the alien may be contacted," which could be a foreign or U.S. address. Assuming arguendo that de novo review applies without any deference to the BIA on its interpretation of § 1252b, we disagree with Ramos-Portillo that an alien may satisfy his obligation under § 1252b(a)(1)(F)(i) by providing a foreign address. 4
In interpreting a statute, we do not look at a word or a phrase in isolation. The meaning of a statutory provision "is often clarified by the remainder of the statutory scheme ... because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law."
Util. Air Regulatory Grp. v. E.P.A.
,
We begin with the text of § 1252b(a)(1)(F)(i).
See
Christiana Tr. v. Riddle
,
That the text of § 1252b(a)(1)(F)(i) expressly contemplates that the address will be used for timely notice for deportation proceedings cuts against Ramos-Portillo's argument that a foreign address would suffice. A "deportation hearing is the usual means of proceeding against an alien already physically in the United States ."
*961
Landon v. Plasencia
,
Other contextual clues similarly support the conclusion that § 1252b(a)(1)(F)(i) requires a U.S. address.
See
Davis v. Mich. Dep't of Treasury
,
In sum, applying the traditional tools of interpretation to § 1252b(a)(1)(F)(i) makes it clear that an alien must provide a U.S. address for receiving written notice regarding his deportation proceedings.
IV.
We now turn to the BIA's order dismissing Ramos-Portillo's appeal. The BIA determined that Ramos-Portillo failed to satisfy his obligation to provide an address to the immigration court. For the following reasons, we hold that the BIA did not abuse its discretion in dismissing Ramos-Portillo's appeal of the denial of the motion to reopen.
A.
The BIA did not abuse its discretion in concluding that the information that Ramos-Portillo provided to immigration officials-the names of his town and county in El Salvador-did not constitute a valid mailing address "at which [he] may be contacted respecting [deportation] proceedings." 8 U.S.C. § 1252b(a)(1)(F)(i). It was not irrational or capricious for the BIA to conclude that Ramos-Portillo-who entered the United States unlawfully, seeking to work and live in the United
*962
States, and whom the government sought to deport from the United States-could not be contacted in El Salvador regarding his deportation proceedings that would take place in the United States.
See
Furthermore, the BIA did not act irrationally by observing that Ramos-Portillo's purported address is not a valid mailing address because it only included the names of his town and county in El Salvador without any street name or number. Such a facially incomplete set of address information would reasonably leave one to wonder whether it is even a valid address, much less an address that can be contacted by certified mail or used for timely notice for deportation proceedings. Although Ramos-Portillo asserts that his family in El Salvador could have received mail for Ramos-Portillo, there is no indication in the affidavit or elsewhere in the record that
certified mail
could be delivered to, or that a signed receipt could be returned from, El Salvador.
See
B.
Even assuming
arguendo
that the town name constituted a valid mailing address, we hold, in the alternative, that the BIA did not abuse its discretion in dismissing Ramos-Portillo's appeal because even though he was served with an OSC that contained no address, he failed to follow up with an address pursuant to the governing regulation.
5
Under
We reject Ramos-Portillo's contention that he satisfied his obligation to provide an address because immigration officials recorded the name of his hometown in El Salvador on a Form I-213. Here, regardless of what an immigration official recorded in his notes, what matters is that Ramos-Portillo was served with an OSC that did not contain any address but failed to follow up and provide an address. Given his failure to provide an address pursuant the governing regulation, the immigration court was not required to mail a separate notice, and the BIA did not abuse its discretion in dismissing his appeal.
V.
Ramos-Portillo also asserts that the BIA abused its discretion in dismissing
*963
his appeal as the IJ's denial of his motion to reopen violates his due-process right to notice of deportation proceedings. We reject Ramos-Portillo's due-process claim. Although Ramos-Portillo is correct that "the Fifth Amendment entitles aliens to due process of law in deportation proceedings,"
Reno v. Flores
,
VI.
For the foregoing reasons, we DENY Ramos-Portillo's petition for review.
The former § 1252b thus sets forth a notice requirement for the government that is largely identical to the current notice requirement in 8 U.S.C. § 1229a.
The newer version of the statute imposes the same duty to provide a current mailing address.
As we observed in
Mauricio-Benitez
,
We need not resort to
Chevron
deference if "[t]he statutory text alone is enough to resolve [the question]."
Pereira
,
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
- Jose Nicolas RAMOS-PORTILLO, Petitioner, v. William P. BARR, U.S. Attorney General, Respondent.
- Cited By
- 55 cases
- Status
- Published