Gualterio Santos-Santos v. William P. Barr
Opinion
Gualterio Lazaro Santos-Santos petitions for review of a 2018 order by the *488 Board of Immigration Appeals ("Board") that affirmed an immigration judge's ("IJ") decision denying the motion to reopen an in absentia removal order entered against Santos-Santos in 2000. Santos-Santos argues that the Notice to Appear ("NTA") 1 served on him did not include the "date, time, and place" at which he was required to appear, and the IJ therefore had no jurisdiction to enter a removal order. We DENY the petition.
I.
Santos-Santos, a citizen of Mexico, entered the United States without inspection near Nogales, Arizona, in 1999. On March 6, 2000, he and his wife attempted to enter Canada from Port Huron, Michigan, but were denied admission by Canadian immigration authorities and directed back to Port Huron. They were referred to secondary inspection and questioned as to their citizenship and status in the United States. Both admitted to being citizens of Mexico and entering the United States illegally. Santos-Santos said he illegally resided in Chicago, Illinois. The Immigration and Naturalization Service ("INS") personally served Santos-Santos with an NTA, charging him with inadmissibility under the Immigration and Nationality Act ("INA") § 212(a)(6)(A)(i), 2 and ordering him to appear for a hearing in Detroit. The NTA listed his address as "2444 South Troy, Chicago, Illinois, 60623," and indicated that the date and time of the hearing was "to be determined." On May 19, a "Certificate of Service of Charging Document with the Immigration Court" was issued to Santos-Santos at the same address, informing him that the NTA had been sent to the Detroit immigration court. On May 24, the Detroit immigration court issued a Notice of Hearing ordering him to appear on October 20, 2000; it was mailed to Santos-Santos at "2444 South Troy, Chicago, IL 60623." Santos-Santos failed to appear at his October 20, 2000, hearing and was ordered removed in absentia . The order was mailed to the same address. Santos-Santos claims he did not receive the in absentia order and only learned of it when he was involved with immigration proceedings in Los Angeles.
In 2018, Santos-Santos, through counsel, filed a motion to reopen the in absentia order with the immigration court. Santos-Santos argued that he never received notice of his hearing date, and that "[t]he record is silent as to whether the Service even attempted to provide Respondent with a Notice of Hearing." He further contended that, because the NTA did not include the date and time of his hearing, it was facially defective, rendering the proceedings void ab initio . In an attached declaration, Santos-Santos said that while he received the NTA that stated the date and time of the hearing were to be determined, he did not receive any other notices.
The Department of Homeland Security ("DHS") 3 filed a response in opposition to Santos-Santos's motion. It noted that a Notice of Hearing was sent on May 24, 2000 instructing Santos-Santos to appear on October 20, 2000. DHS contended, inter alia, that the presumption of regularity *489 established that the notice was properly delivered and Santos-Santos had not adequately rebutted that presumption. DHS further argued that Santos-Santos failed to cite any authority supporting his argument that a lack of date and time of the hearing on the NTA meant that the IJ did not properly exercise jurisdiction over his case.
The IJ denied the motion to reopen for "the reasons stated in the opposition to the motion." Santos-Santos petitioned the Board, reiterating his claim that he never received notice of the hearing and the IJ erred in exercising jurisdiction. The Board dismissed the appeal on May 2, 2018, finding that there was no evidence that either the NTA or the in absentia order was returned to the immigration court. Further, the Board noted that Santos-Santos did not (1) argue that the notice was addressed incorrectly, (2) claim that he was having mail delivery problems at that address, (3) initiate proceedings to obtain relief, or (4) report what efforts he took to determine the status of his proceedings in the interim seventeen years before his motion to reopen. The Board also determined that an NTA need not include the time and date of a removal hearing, and that the statutory notice requirements may be satisfied when the information is provided in a subsequent notice. Finally, the Board concluded that Santos-Santos had not shown that sua sponte reopening of his proceedings was warranted. This petition for review followed.
II.
"A motion to reopen is a form of procedural relief that asks the Board to change its decision in light of newly discovered evidence or a change in circumstances since the hearing."
Dada v. Mukasey
,
III.
Relying on
Pereira v. Sessions
, --- U.S. ----,
Pereira
is distinguishable: that case (1) dealt with whether the narrow "stop-time" rule can be triggered by an NTA omitting the time and place of the initial hearing, and (2) addressed two statutory provisions distinct from the regulations at issue here.
*490
Hernandez-Perez v. Whitaker
,
Alternatively, we find that the INA contains language regarding "proceedings for deciding the inadmissibility or deportability of an alien[,]" but does not address jurisdictional prerequisites.
See
8 U.S.C. § 1229a. Rather, the INA allows the Attorney General to promulgate regulations to govern removal hearings, which include provisions for when and how jurisdiction vests with the IJ.
Considered under either argument, Santos-Santos's position regarding jurisdiction is thus unpersuasive.
IV.
In the alternative, the United States argues that Santos-Santos has failed to meet his burden of proving that he did not receive proper notice of his October 20, 2000 hearing, rendering the denial of the motion to reopen proper.
Santos-Santos bears the burden of demonstrating that he did not receive proper notice of the hearing. 8 U.S.C. § 1229a(b)(5)(C) ;
Scorteanu v. INS
,
As an initial matter, Santos-Santos has forfeited any challenge to the Board's determination that he failed to overcome the presumption of delivery of the notice of his hearing.
Ramani v. Ashcroft
,
Even if we proceed to consider the merits, we still conclude that the Board did not abuse its discretion in determining Santos-Santos failed to meet his burden to prove he did not receive proper notice. As explained below, notice may be given pursuant to either paragraph (1) or paragraph (2) of section 1229(a). Although Santos-Santos may have met his burden in showing that he did not receive a notice in accordance with paragraph (1), he did not meet his burden to show lack of notice in accordance with paragraph (2).
Under the immigration statute, an alien must be provided written notice of his or her removal proceeding.
See
*492
As noted in § 1229(a), there are two different types of written notices. The written notice in paragraph (1) of section 1229(a) (i.e., the "Notice to Appear") mandates that the notice "contain certain required elements, including the nature of the proceedings, the conduct alleged to be in violation of the law, and the date, time, and location of the proceedings."
Ba
,
Santos-Santos, an alien who seeks to rescind the
in absentia
removal order, bears the burden to prove that there was no notice under either paragraph (1) or paragraph (2) of section 1229(a). Santos-Santos met his burden to show that he did not receive notice in accordance with paragraph (1). Santos-Santos's notice to appear did not satisfy the requirements of paragraph (1) because it did not include the date and time of the removal proceeding. But Santos-Santos must also show that he did not receive notice in accordance with paragraph (2) of section 1229(a). 8 U.S.C. § 1229a(b)(5)(C)(ii). Because Santos-Santos's Notice of Hearing in Removal Proceedings meets the requirements of paragraph (2), Santos-Santos must rebut the presumption by showing that he did not actually receive this notice, as the notice was purportedly mailed to his listed address.
See
Scorteanu
,
We have previously considered the following non-exhaustive list of potential evidence:
(1) the 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.
Thompson
,
PETITION FOR REVIEW DENIED.
Unless otherwise indicated, we use the term Notice to Appear and NTA referred to in
Immigration and Nationality Act, Pub. L. No. 89-236,
On March 1, 2003, the INS ceased to exist and its functions were absorbed by DHS.
See
Homeland Security Act of 2002, Pub. L. No. 107-296,
It bears mentioning that the "Notice to Appear" in
Reference
- Full Case Name
- Gualterio Lazaro SANTOS-SANTOS, Petitioner, v. William P. BARR, Attorney General, Respondent.
- Cited By
- 63 cases
- Status
- Published