Read case summaries of select Fifth Circuit and Supreme Court cases issued this last month.
Fifth Circuit Court of Appeals
Alexandre-Matias v. Garland [motion to reopen; motion to rescind in absentia removal order]
Alexandre-Matias v. Garland, 70 F.4th 864 (5th Cir. 2023) - June 13, 2023
Facts & Background
- Petitioner, a native and citizen of Brazil, was ordered removed in absentia in 2005.
- In 2018, Petitioner moved to reopen proceedings and rescind the removal order. The immigration judge (IJ) denied Petitioner's request.
- Petitioner appealed the IJ's denial to the Board of Immigration Appeals (BIA), and the BIA dismissed the appeal.
- Petitioner petitioned the Fifth Circuit for review of the BIA's dismissal of the appeal.
- In his appeal to the Fifth Circuit, Petitioner raised several challenges to the denial of the motion to reopen. The first argument was a jurisdictional challenge over his removal proceedings relating to 8 C.F.R. § 1003.14(a). Petitioner next argued that the BIA erred in relying on a reconstructed record that did not have his Notice to Appear (NTA), where the BIA relied on the Form I-213. Petitioner then argued that the in absentia removal order should have been rescinded because he did not receive written notice of the time and place of his removal hearing. Petitioner lastly argued that his due process rights were violated.
Notable Holdings & Rationale
- The Fifth Circuit denied Petitioner's petition for review, finding that Petitioner did not demonstrate that the BIA erred on any ground in dismissing his appeal.
- The Fifth Circuit held that Petitioner's jurisdictional challenge failed, elaborating that the Fifth Circuit had previously determined 8 C.F.R. § 1003.14 to be a claim-processing rule rather than jurisdictional. The Fifth Circuit also stated in the holding that they would not consider Petitioner's "alternative non-jurisdictional" argument based on 8 C.F.R. § 1003.14(a) because this argument was raised for the first time in Petitioner's reply brief.
- The Fifth Circuit additionally stated that, regarding the Form I-213, the Fifth Circuit had previously held in Bustos-Torres v. INS, 898 F.2d 1053 (5th Cir. 1990) that a Form I-213 may be used to establish a noncitizen's deportability. Petitioner's address was recorded on the Form I-213, and the Form I-213 has the time, date, and place of the removal hearing and shows that Petitioner was provided with the forms to affect the NTA, along with a certified interpreter to translate the NTA paperwork. The Fifth Circuit did not find anything to suggest that Petitioner's Form I-213 was incorrect or obtained by coercion or duress, and the Fifth Circuit ultimately held that the BIA could properly rely on the Form I-213 as evidence that Petitioner received notice of his removal hearing.
- Regarding Petitioner's due process claim, to the extent that this challenge was asserted to the denial of the motion to reopen, the Fifth Circuit held that Petitioner's claim fails. To the extent that Petitioner was bringing forth a due process challenge based on failure to receive notice of the scheduled removal hearing, the BIA did not reversibly err in determining that Petitioner failed to establish that his problems in understanding the interpreter caused him substantial prejudice by preventing him from finding out his hearing date.
Ponce v. Garland [CIMT]
Ponce v. Garland, 70 F.4th 296 (5th Cir. 2023) - June 9, 2023
Facts & Background
- Petitioner is a native and citizen of El Salvador who arrived in the United States when he was 15-years-old. When Petitioner was in high school in 2019, he was charged under Texas Penal Code § 22.04(a) with injuring a child by omission for inappropriately touching a younger female relative and pled guilty.
- The conviction led to immigration proceedings, as the Department of Homeland Security (DHS) served Petitioner with a NTA following the state conviction, and the NTA asserted Petitioner's removability based on the conviction, per 8 U.S.C. § 1227(a)(2)(E)(i) (crime of child abuse) and § 1227(a)(2)(A)(i)(I) (crime involving moral turpitude (CIMT)).
- At the immigration hearing the IJ found Petitioner subject to removal. Petitioner then applied for asylum, withholding of removal (WOR), relief under the Convention Against Torture (CAT), and cancellation of removal. The IJ denied Petitioner's applications for relief on each of these grounds.
- Petitioner appealed to the BIA bringing forth three arguments:
- (1) that Texas Penal Code § 22.04(a) is indivisible and that even if it were divisible, it is broad and does not meet the general definition of child abuse under federal law;
- (2) that Petitioner's conviction is not a CIMT; and
- (3) that the IJ erred in denying Petitioner's applications for asylum and protection under the CAT.
- The BIA considered each of Petitioner's arguments and upheld the IJ's determination that Petitioner was removable.
- (1) Regarding Petitioner's first argument, the BIA found Texas Penal Code § 22.04(a) to be divisible based on the category of the victim. Regarding Petitioner's argument of the statute being overbroad, the BIA found that Petitioner did not provide specific examples in which Texas Penal Code § 22.04(a)(3) was applied to the harm of a child that does not meet the general federal definition of child abuse.
- (2) Regarding Petitioner's second argument, the BIA declined to address Petitioner's CIMT analysis because the BIA held that Petitioner was removable for his conviction for child abuse under Texas Penal Code § 22.04(a).
- (3) Regarding Petitioner's third argument, the BIA upheld the IJ's decision to deny asylum, WOR, and protection under the CAT.
- Petitioner petitioned the Fifth Circuit for review of the BIA's decision.
Notable Holdings & Rationale
- The Fifth Circuit denied the petition for review. The Fifth Circuit held that the BIA properly concluded that Petitioner was removable based on his conviction under the portion of Texas Penal Code § 22.04(a) that relates to child abuse. The BIA did not err in finding that Petitioner was removable on this ground, as the cases that Petitioner proffered do not show that Texas would apply Texas Penal Code § 22.04(a) to crimes that are not in line with the BIA's definition of child abuse.
Nivelo Cardenas v. Garland [NTA; motion to rescind in absentia removal order]
Nivelo Cardenas v. Garland, 70 F.4th 232 (5th Cir. 2023) - June 2, 2023
Facts & Background
- Petitioner, a native and citizen of Ecuador, entered the United States without inspection in 1999. He was apprehended soon after his entry and later given a NTA, charging him removable due to his presence in the United States without being admitted or paroled. The NTA did not have the hearing date or time. Petitioner's address at the time was properly listed on the NTA as the address of the processing center where Petitioner was detained.
- The NTA informed Petitioner to notify the immigration court of any change in address, that the government would not be required to provide Petitioner with written notice of his hearing if he did not provide his address, and that the IJ could issue a removal order in absentia if Petitioner did not attend a hearing. Petitioner and a border patrol agent signed the certificate of service, which also stated that Petitioner was provided oral notice in Spanish of the time and place of the hearing and of the consequences for failure to appear. The government did concede that the notice of the time and place, as indicated in the certificate of service, was not given to Petitioner since this hearing information was not yet known.
- On August 2, 1999, Petitioner was served with notice that his case was scheduled for 9:00 am on August 12, 1999 at the immigration court at the center where Petitioner was detained. Then, on August 12, 1999, Petitioner was served with notice that his hearing was scheduled for August 19, 1999. However, Petitioner was released from detainment two days prior, on August 17, 1999. When he was released, Petitioner signed a "Notification Requirement for Change of Address" form, with this form listing his mailing address with a spelling error in the city of his address. The city of Petitioner's mailing address was spelled incorrectly, writing "Patchogue" as "Patcbogue." On this same day, the same address was written on Form I-830, notifying EOIR of Petitioner's address.
- On October 1, 1999, the immigration court mailed Petitioner a hearing notice to the misspelled address, with the hearing set for January 28, 2000 at 10:00 am at a designated location. Petitioner did not appear at the hearing, and the IJ issued an in absentia removal order against Petitioner.
- In November 2018, Petitioner's counsel filed a motion to rescind the in absentia removal order and reopen Petitioner's removal proceedings. Petitioner argued that he did not receive notice of the hearing in January 2000 because the notice was not properly addressed and was returned without delivery. Petitioner's motion included an unsworn statement written by Petitioner, stating that Petitioner gave the immigration officer his brother's address in Patchogue, New York and that he checked his mail receptacle every day for two years waiting to hear from the immigration court. Petitioner's motion cited to a letter that correctly spelled Patchogue, evidencing that Petitioner provided the immigration court with the right address and that he was not responsible for the hearing notice being incorrectly addressed. The government did not respond to this motion.
- The IJ denied the motion in February 2019, finding that the hearing notice mailed to the incorrect address that Petitioner provided to the immigration offices, which was documented in the form that Petitioner signed. The IJ also found that the mailing was returned to the court and marked as undeliverable with a stamped note indicating that delivery was attempted, along with a handwritten note stating "Please return it to the sender." The IJ found that Petitioner was notified that he had to notify the immigration court of his correct address, that there was no evidence showing that Petitioner notified the court of his correct address before the hearing date in January 2000, and that Petitioner was provided with proper notice of the hearing because there was proof of attempted delivery to the last address he provided. The IJ did acknowledge Petitioner's written statement that was filed with the motion but ultimately found that the statement should not be considered because it was not sworn—though the IJ also found that the outcome would be the same even if the statement were to be considered.
- Petitioner appealed to the BIA. He argued that the IJ relied on documents that were not in Petitioner's record of proceedings, which Petitioner concluded when he conducted a FOIA request, and the FOIA request did not contain the documents that the IJ relied on. Petitioner also challenged the IJ's application of the law and argued that the IJ failed to give proper consideration to the bag and baggage letter cited in the motion and to Petitioner's written statement. Petitioner also argued that if his proceedings were reopened, he would be eligible for cancellation of removal under Pereira v. Sessions, 138 S. Ct. 2105 (2018), because his NTA lacked the time of the hearing.
- The BIA upheld the IJ's decision and dismissed Petitioner's appeal—concluding that Petitioner received constructive notice of the hearing when the notice was mailed to the last address provided to the immigration court by Petitioner. The BIA found that Petitioner was notified of his duty to provide a correct address to the immigration court, including the duty to also correct inaccuracies in the listed address, but that Petitioner failed to do that. The BIA rejected Petitioner's argument regarding the letter because Petitioner did not show that he provided the address listed in that letter or that he corrected the misspelled address. The BIA additionally found that Petitioner's failure to update his address for over 18 years showed a lack of due diligence—noting that due diligence was a significant factor in favor of reopening proceedings. The BIA determined that Petitioner's lack of due diligence weighed against reopening proceedings.
- Petitioner then filed a motion for reconsideration with the BIA, raising multiple arguments:
- (1) that it was inappropriate for the IJ to consider evidence that was not provided under his FOIA request;
- (2) that the BIA erred by engaging in de novo factfinding rather than reviewing the IJ’s factual findings for clear error;
- (3) that due diligence was irrelevant to reopening proceedings;
- (4) that the BIA erred in concluding Petitioner was properly notified of the January 28, 2000 hearing;
- (5) that the BIA improperly considered due diligence in this context of reopening proceedings based on lack of notice; and
- (6) that the immigration court lacked subject matter jurisdiction due to deficiencies with the NTA.
- The BIA denied Petitioner's motion for reconsideration. Petitioner then petitioned the Fifth Circuit for review of the BIA's denial of the motion for reconsideration. Petitioner also previously filed a petition for review of the BIA's upholding of the IJ's decision. The Fifth Circuit considered both petitions for review in their opinion.
- The primary issue before the Fifth Circuit was whether Petitioner was entitled to have the in absentia removal order rescinded and removal proceedings reopened due to the misspelled address used to mail notice of the January 2000 hearing.
Notable Holdings & Rationale
- The Fifth Circuit denied Petitioner's petition for review.
- Regarding notice, the Fifth Circuit divided the notice discussion into discussion of exhausted claim and forfeiting the right to notice.
- Regarding the exhausted claim, the Fifth Circuit found that the BIA analyzed the subject matter jurisdiction argument on the merits, which therefore satisfied the need for exhaustion.
- Regarding the issue of forfeiting the right to notice, the Fifth Circuit held:
- That the governing cases for this case are Spagnol-Bastos v. Garland, 19 F.4th 802 (5th Cir. 2021); Gudiel-Villatoro v. Garland, 40 F.4th 247 (5th Cir. 2022); and Platero-Rosales v. Garland, 55 F.4th 974 (5th Cir. 2022) (Petitioner argued that under the rule of orderliness, Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021 applied);
- That the applicable rule from those three cases is that a noncitizen who fails to provide a correct mailing address or to correct an erroneous address forfeits his right to notice; and
- That Petitioner forfeited his right to notice by failing to correct the address listed in his "Notification Requirement for Change of Address" and Form I-830.
- Petitioner raised several other arguments relating to why the BIA erred in dismissing Petitioner's appeal and denying the motion for reconsideration, and the Fifth Circuit was not persuaded by and did not agree with any of these other arguments. For example, the Fifth Circuit discussed in the opinion that it did not find a "realistic possibility" that the IJ or BIA would have reached a different conclusion even if they had considered Petitioner's written statement. The Fifth Circuit also reached the same conclusion regarding the bag and baggage letter, stating that affirmance was warranted because there was "no realistic possibility" that the bag and baggage letter could prove that Petitioner timely corrected the mistake in his address.
Supreme Court
U.S. v. Texas [DHS enforcement priorities]
United States v. Texas, No. 22-58 (U.S. June 23, 2023)
Facts & Background
- Please look to the "October Litigation Updates" blog post for facts, background, and procedural issues, and to the "November Litigation Updates" blog post for further discussion of the issues before the Supreme Court.
- In 2021, the Secretary of Homeland Security issued the Mayorkas Memo, immigration-enforcement guidelines that identified the Department's priorities.
- The States of Texas and Louisiana claimed that the Memo contravenes two federal statutes that they read to require the arrest of certain noncitizens upon their release from prison (8 U.S.C. §1226(c)) or entry of a final order of removal (§1231(a)(2)). The District Court found that the States would incur costs due to the Executive’s failure to comply with those alleged statutory mandates, and that the States had standing to sue based on those costs. On the merits, the District Court found the Guidelines unlawful and vacated them. The Fifth Circuit declined to stay the District Court’s judgment, and this Court granted certiorari before judgment.
- There were three issues before the Supreme Court:
- (1) Whether the state plaintiffs have Article III standing to challenge the DHS Guidelines for the Enforcement of Civil Immigration Law;
- (2) Whether DHS’s Guidelines are contrary to 8 U.S.C. § 1226(c) or 8 U.S.C. § 1231(a), or otherwise violate the Administrative Procedure Act; and
- (3) Whether 8 U.S.C. § 1252(f)(1) prevents the entry of an order to “hold unlawful and set aside” the guidelines under 5 U.S.C. § 706(2).
Notable Holdings & Rationale
- Holding: Texas and Louisiana lack Article III standing to challenge the DHS Guidelines.
- The Court determined that the States' monetary injury (having to arrest more individuals because DHS is choosing not to arrest them) is not redressable by a federal court.
- Because the question is not reviewable by the Court, the question of legality was not considered. "We take no position on whether the Executive Branch here is complying with its legal obligations under §1226(c) and §1231(a)(2)."
Pugin v. Garland [crimmigation]
Pugin v. Garland, No. 22-23 (U.S. June 22, 2023)
Facts & Background
- Pugin v. Garland was appealed from the Fourth Circuit. This case was consolidated with Case No. 22-331, Garland v. Cordero-Garcia, which was appealed from the Ninth Circuit. The issue in both cases is whether an offense may "relat[e] to obstruction of justice" even if the offense does not require that an investigation or proceeding be pending. An offense "relating to obstruction of justice" constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(S) which would render a noncitizen removable from the United States.
- The Ninth Circuit concluded that Fernando Cordero-Garcia's state conviction for dissuading a witness from reporting a crime did not constitute an offense "relating to obstruction of justice" because the state offense did not require that an investigation or proceeding be pending.
- By contrast, the Fourth Circuit concluded that Jean Francois Pugin's state conviction for accessory after the fact constituted an offense "relating to obstruction of justice" even if the state offense did not require that an investigation or proceeding be pending.
Notable Holdings & Rationale
- Holding: An offense may “relat[e] to obstruction of justice” under §1101(a)(43)(S) even if the offense does not require that an investigation or proceeding be pending.
- The Court reasons that an individual can obstruct the process of justice even when an investigation or proceeding is not pending.
- Justice Jackson filed a concurring opinion. Justice Sotomayor filed a dissenting opinion, in which Justice Gorsuch joined, and in which Justice Kagan joined as to all but Part III.