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De Jesus Velasquez-Escovar v. Holder

United States Court of Appeals, Ninth Circuit

September 29, 2014

ODILIA DE JESUS VELASQUEZ-ESCOVAR, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

Submitted, Pasadena, California: July 11, 2014, [*]

Page 1001

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A088-753-610.

SUMMARY[**]

Immigration

The panel granted Odilia de Jesus Velasquez-Escovar's petition for review of the Board of Immigration Appeals' denial of her motion to reopen an in absentia removal order.

The panel held that the BIA abused its discretion in finding that Velasquez was not entitled to notice of her deportation hearing. The panel wrote that aliens are entitled to notice unless they fail to give a current address to the government, or fail to let the government know when they move, and held that Velasquez did neither. The panel held that the BIA arbitrarily discounted Velasquez's unrefuted claim without providing a reason, because the two reasons it provided did not support its decision. The panel held that this court could not affirm the BIA's decision pursuant to 8 C.F.R. § 1003.15(d)(1), which places the burden on an alien to inform the immigration court that the government used the wrong address on a Notice to Appear, because the BIA's decision did not invoke that regulation, and because the NTA itself did not mention § 1003.15(d)(1) or otherwise put Velasquez on notice.

Dissenting, Judge Rawlinson would find that the BIA did not act in an arbitrary or irrational fashion, and that it gave a reasoned explanation for its ruling. Judge Rawlinson would find Velasquez's failure to provide her current address to the agency in writing fatal to her case. Judge Rawlinson would find that § 1003.15(d)(1) should apply to this case. Applying an abuse of discretion standard of review, Judge Rawlinson would find no abuse, and would deny the petition.

Alejandro Garcia, Commerce, California, for Petitioner.

Tony West, Assistant Attorney General, Civil Division; Holly M. Smith, Senior Litigation Counsel, Office of Immigration Litigation; Claire L. Workman, Trial Attorney, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before: Barry G. Silverman, Richard C. Tallman, and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge Tallman; Dissent by Judge Rawlinson.

OPINION

Page 1002

TALLMAN, Circuit Judge:

At the outset of her removal proceedings, Odilia de Jesus Velasquez-Escovar gave immigration officials her current address in Los Angeles. But those officials did not properly record it. Instead, they recorded another outdated address and then sent Velasquez's hearing notice there. Velasquez never got that notice and, without it, she did not know when to appear for her deportation hearing. Understandably, she failed to appear and was ordered removed in absentia. When she found out about that order, Velasquez moved to reopen. An Immigration Judge denied that motion, and the Board of Immigration Appeals affirmed. In so doing, it abused its discretion. Accordingly, we grant Velasquez's petition for review.

I

Odilia de Jesus Velasquez-Escovar is Guatemalan. She illegally entered the United States around 1990, settling in Los Angeles. She has four children; two are native-born citizens of the United States. She admits that she remains here unlawfully.

In 2007, Velasquez returned briefly to Guatemala. On her way back to Los Angeles, she was pulled over in Refugio, Texas, by local police. Those officers called federal immigration officials, who met Velasquez at the Calhoun County Jail. There, she admitted her alienage and was transported to the Corpus Christi Border Patrol Station for processing.

Velasquez claims that the Corpus Christi-based immigration officials asked her for her current address. She says that she told them that she and her daughters had just moved to 14001 Vanowen Street, Van Nuys, California. Next, she claims she was asked whether she had ever lived at 11827 Valerio Street in Los Angeles. Petitioner says she told them that she had lived at Valerio Street, but that the Vanowen address was her current one. Velasquez says the agents told her that they found the Valerio address by looking up her " identification number," which she assumes meant the number on her California state identification card.

After hand-serving Velasquez with a Notice to Appear (NTA), immigration authorities released her. The NTA charged her as removable and ordered her to appear in Los Angeles for an immigration hearing at a date and time " to be set" later. The NTA mistakenly listed the Valerio Street address as Velasquez's current address. We do not know whether Velasquez noticed the error, but we do know that she never brought it to the government's attention.

NTA in hand, Velasquez returned to California. Since her return, she has lived at the Vanowen address. She spent roughly six months regularly visiting an attorney's office to check on the status of her case. Eventually she gave up. Having received no further word from the government, she assumed her case had been closed. She was wrong. Fifteen months after Velasquez stopped visiting the lawyer--which was almost two years after she was arrested in Texas--the immigration court mailed a notice setting a date and time for Velasquez to appear. The notice went to Velasquez's old address on Valerio Street, not her current address on Vanowen. Velasquez did not receive the notice, did not appear, and was ordered removed in absentia. A copy of the removal order was sent to the Valerio address and returned as undeliverable.

Roughly six months later, Velasquez was detained by Immigration and Customs Enforcement. (The record does not say why.) While detained, she learned of the

Page 1003

outstanding removal order and immediately filed a motion to reopen. She argued that she should not have lost her right to a hearing because the government improperly recorded--and then sent notice to--an old address, rather than the current one she claims to have given them. The government argued that it was her burden to tell it that it had the wrong address because she should have noticed the error on the NTA. The IJ agreed with the government and denied the motion to reopen. The BIA dismissed Velasquez's appeal of that denial. Velasquez now petitions for review.

II

We have jurisdiction under 8 U.S.C. ยง 1252(a)(1) (2012). Our review includes the " validity of the notice provided to the alien" and " the reasons for the alien's absence" from the hearing. 8 ...


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