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Luna-Garcia v. Barr

United States Court of Appeals, Fifth Circuit

July 23, 2019


          Petition for Review of Order of the Board of Immigration Appeals

          Before JOLLY, ELROD, and WILLETT, Circuit Judges.


         The panel opinion previously issued in this case is withdrawn, and the following opinion is substituted in its place.

         Melida Teresa Luna-Garcia, a citizen of Guatemala, petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing her appeal of the denial of her motion to reopen. For the following reasons, we deny her petition for review.


         In 2004, Luna-Garcia entered the United States without inspection and was detained shortly thereafter. The Border Patrol issued a Notice to Appear (NTA) and initiated removal proceedings against Luna-Garcia. The NTA noted that Luna-Garcia "FAILED TO PROVIDE A U.S. ADDRESS." Other Border Patrol records (Form I-213) listed a San Antonio address "c/o [Immigration and Naturalization Service (INS)]" as a United States address and a Guatemalan village "Aldea El Zarzal, Mun. de San Reymundo" as Luna-Garcia's "permanent residence." The NTA informed Luna-Garcia that she was "required to provide the [INS], in writing, with [her] full mailing address and telephone number" and to "notify the Immigration Court immediately by using Form EOIR-33 whenever [she] change[s] [her] address or telephone number." The NTA explained that she "will be provided with a copy of [Form EOIR-33]" and that "[n]otices of hearing will be mailed to this address." Finally, the NTA warned Luna-Garcia that "[i]f [she] do[es] not submit Form EOIR-33 and do[es] not otherwise provide an address at which [she] may be reached during proceedings, then the Government shall not be required to provide [her] with written notice" and that the immigration judge (IJ) may order her removed in absentia. Luna-Garcia signed a certificate of service, acknowledging personal service of the NTA. Upon release, Luna-Garcia never followed up with the immigration court to provide an address.

         On June 10, 2004, an IJ held a hearing, but Luna-Garcia failed to appear. The IJ found that "[a] notice of the hearing was . . . not given to [Luna-Garcia] because [she] failed to provide the court with [her] address as required under [8 U.S.C. § 1229(a)(1)(F)] after having been advised of that requirement in the [NTA]." The IJ consequently ordered Luna-Garcia removed in absentia.

         In November 2015, Luna-Garcia filed a motion to reopen and rescind her 2004 in absentia removal order on the grounds that she did not receive notice of her removal proceedings. The IJ denied her motion to reopen because Luna-Garcia, despite knowing that her NTA did not include any address, had made no effort for over a decade to provide an address. The IJ also observed that providing a Guatemalan address was inadequate because Luna-Garcia had no plans to return to Guatemala but instead was traveling to New York to seek employment. The BIA affirmed the denial of her motion to reopen after observing that Luna-Garcia "cite[d] to no authority to support her argument that a foreign address is sufficient, especially when the NTA calls for a U.S. form of address." Luna-Garcia filed a petition for review before this court.[1]

         II. "[W]e review BIA denials of [motions to reopen] under a 'highly deferential abuse-of-discretion standard.'" Mauricio-Benitez v. Sessions, 908 F.3d 144, 147 (5th Cir. 2018) (quoting Hernandez-Castillo v. Sessions, 875 F.3d 199, 203 (5th Cir. 2017)). We may overturn a BIA decision only if it is "capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach." Id. (quoting Hernandez-Castillo, 875 F.3d at 203). "We review the BIA's rulings of law de novo . . . ."[2] Lopez Ventura v. Sessions, 907 F.3d 306, 310 (5th Cir. 2018).


         Luna-Garcia argues that she is entitled to reopen the in absentia removal order because she never received notice despite having satisfied her statutory obligation to provide an address to receive notice. We disagree.


         "Under 8 U.S.C. § 1229a(b)(5)(A), an alien who fails to attend a hearing after written notice has been provided to the alien or the alien's counsel of record shall be ordered removed in absentia if the government establishes by 'clear, unequivocal, and convincing evidence' that the written notice was so provided and that the alien is removable." Hernandez-Castillo, 875 F.3d at 204 (quoting 8 U.S.C. § 1229a(b)(5)(A)). However, "[a]n in absentia removal order entered without proper notice to the alien may be rescinded at any time upon a motion to reopen . . . ." Mauricio-Benitez, 908 F.3d at 147; see also 8 U.S.C. § 1229a(b)(5)(B), (C). In turn, an alien has an obligation to provide "an address . . . at which the alien may be contacted respecting proceedings under [8 U.S.C. § 1229a]." 8 U.S.C. § 1229(a)(1)(F)(i). "[I]f the alien fails to provide a mailing address in accordance with the statutory requirements, he is not entitled to written notice of his removal hearing." Mauricio-Benitez, 908 F.3d at 147; accord 8 U.S.C. ยง 1229a(b)(5)(B). Thus, "an in absentia removal order should not be revoked on the grounds that an alien failed to actually receive the ...

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