Dacostagomez-Aguilar v. U.S. Attorney General

40 F.4th 1312

Samuel DACOSTAGOMEZ-AGUILAR, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 20-13576

United States Court of Appeals, Eleventh Circuit.

Filed July 19, 2022

Lisa Chun, National Immigrant Justice Center, Chicago, IL, for Petitioner.

Corey L. Farrell, Sabatino F. Leo, Joanna L. Watson, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before Branch, Grant, and Brasher, Circuit Judges.

GRANT, Circuit Judge:

Congress has established specific administrative proceedings for deciding whether to remove a person who lacks the right to remain in this country. Skipping those proceedings is no way to avoid removal. To prevent such attempts to circumvent the immigration process, Congress allows immigration judges to order removal "in absentia" after the failure to attend a hearing—so long as the government gave notice of the hearing beforehand.

The question we consider is exactly what kind of notice deficiencies must be shown before an in absentia removal order can be challenged. Immigration law is famously complicated, but the answer here turns out to be rather simple. The notice required to render an in absentia removal lawful is the notice for the particular hearing that was missed. And to have a chance to reopen removal proceedings—and thus challenge an in absentia removal order—a movant must show that he failed to receive the notice for the hearing at which he was ordered removed. Contrary to the petitioner's argument, a defect in an earlier notice does not satisfy this burden. We therefore deny the petition for review.

I.

In October 2003, 17-year-old Samuel Dacostagomez—along with his mother, little sister, and two young cousins—crawled under a border fence that separated Mexico from Arizona. But they did not make it far; United States Border Patrol agents soon apprehended them walking north along a highway. That same day they handed Dacostagomez a notice to appear. The notice charged him as removable for being present in the country without admission or parole, and ordered him to appear for removal proceedings before the Phoenix Immigration Court at a date and time "to be set." See 8 U.S.C. § 1182(a)(6)(A)(i).

Agents also informed Dacostagomez's mother that she needed to appear before an immigration court "in a year" and "bring all of the children" with her. When asked where they would be until then, she told them that she and the children would live with her sister in Rock Springs, Georgia. She gave the agents her sister's address, and the family made its way to Georgia.

Within two months, the Phoenix Immigration Court sent a notice to the Rock Springs address setting Dacostagomez's hearing for November 2004—which would be a little more than a year after his entry into the United States. But nine months before the hearing, Dacostagomez's family left Rock Springs for his grandmother's home in Dalton, Georgia. No one informed the immigration court about the move. Three months later, they left the grandmother's home too—and again failed to tell the immigration court.

Meanwhile, the aunt in Rock Springs was keeping track of her own children's removal proceedings, and she moved to transfer her son's case to Atlanta. The Phoenix Immigration Court added Dacostagomez's identification number to the motion. The motion was granted, and the location change meant that the government needed to send another written notice, this one specifying the new time and place of removal proceedings. See id. § 1229(a)(2)(A).

The Atlanta Immigration Court sent that notice to Dacostagomez at the most recent address they had on file for him—his aunt's home in Rock Springs. It was returned, undelivered, to the immigration court. Undeterred, the immigration court resent the notice, this time including the aunt's particular apartment number. To make up for the delivery failure, the hearing was postponed for another month, to February 2005.

The new notice was also returned. And Dacostagomez—who no longer lived at the Rock Springs address anyway—failed to attend the hearing. Because Dacostagomez did not attend his hearing, the presiding immigration judge ordered his removal. See id. § 1229a(b)(5)(A).

Dacostagomez did not leave. In fact, he remained in the United States for nearly a decade and a half before reappearing in the immigration system in July 2019, when he moved to reopen his removal proceedings. If the motion succeeded, his in absentia removal order would be rescinded, and he would have another chance to establish his right to remain in the country. See id. § 1229a(b)(5)(C).

Generally, any such motion must be filed within 180 days of a removal order's entry—a deadline that had long since expired. Id. § 1229a(b)(5)(C)(i). But an alien can move to reopen his proceedings "at any time" if he "did not receive notice in accordance with paragraph (1) or (2)" of § 1229(a). Id. § 1229a(b)(5)(C)(ii). And Dacostagomez had learned of a recent Supreme Court decision— Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). He argued that under Pereira he could not be removed, because the notice to appear he received when apprehended on the highway had not included the date and time of his initial hearing. See 8 U.S.C. § 1229(a)(1)(G)(i) ; Pereira , 138 S. Ct. at 2113–14.

An immigration judge denied Dacostagomez's motion to reopen. The Board of Immigration Appeals affirmed that judgment, concluding that his argument was foreclosed by its decision in Matter of Pena-Mejia , 27 I. & N. Dec. 546 (BIA 2019). There, the Board held that an immigration judge can enter—and need not rescind—an in absentia removal order if "a written notice containing the time and place of the hearing was provided either in a notice to appear under [ § 1229(a)(1) ] or in a subsequent notice of the time and place of the hearing pursuant to [ § 1229(a)(2) ]." Id. at 548.¹ This petition followed.

II.

Where, as here, the Board issues a decision without adopting the immigration judge's reasoning, we review only the Board's reasoning. See Thamotar v. U.S. Att'y Gen. , 1 F.4th 958, 969 (11th Cir. 2021). We review the Board's denial of a motion to reopen for an abuse of discretion, but review any underlying legal conclusions de novo. Li v. U.S. Att'y Gen. , 488 F.3d 1371, 1374 (11th Cir. 2007).

III.

The Immigration and Nationality Act sets the rules and procedures for removal decisions. See 8 U.S.C. § 1229a ; see also id. §§ 1225(b)–(c), 1228. The default process is extensive, and often includes multiple hearings before an immigration judge. See id. § 1229a(a)(1), (3). An alien generally has a right to be present at any and all of these removal hearings. See id. § 1229a(b)(2)(A)(ii). But skipping a hearing does not strip the immigration court of its power. In that circumstance an alien can be ordered removed "in absentia"—if he received proper notice of the hearing. See id. § 1229a(b)(5)(A).

The question here is what kind of notice is sufficient for this purpose. The Act provides for two different forms: an initial notice to appear, and a notice of a change in the time or place of a hearing. Id. § 1229(a)(1), (2). Shorthand for the former is "paragraph (1)" notice, and for the latter "paragraph (2)" notice. But does in absentia removal require a proper paragraph (1) notice to appear? A correct paragraph (2) notice of a change in the time or place? Both?

The answer is that in absentia removal is lawful so long as the government provided notice for whichever hearing was missed, which means reopening is available if the notice for that hearing was not provided. That is a commonsense result, to be sure. But common sense does not drive the inquiry—the text of the statute does. Happily, the two match up here.

A.

The statute we interpret provides that an alien may move to reopen proceedings that led to an in absentia removal order if he shows that he "did not receive notice in accordance with paragraph (1) or (2) of section 1229(a)." Id. § 1229a(b)(5)(C)(ii). Dacostagomez argues that this provision allows reopening if there was any defective notice in his proceedings. In other words, he is eligible for reopening unless he received proper notice under both paragraphs (1) and (2).

The flaw in his argument starts with the word "or," which joins the relevant paragraphs. That conjunction is important—Congress connected the two notice paragraphs with "or," not "and." In doing so, it signaled that the two are alternatives and not a linked pair. "The use of the disjunctive ‘or’ " indicates "alternatives and requires that those alternatives be treated separately." Rine v. Imagitas, Inc. , 590 F.3d 1215, 1224 (11th Cir. 2009) (quotation omitted). In contrast, "and," in "its ordinary sense," indicates that the things it links are to be treated "jointly." Shaw v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pennsylvania , 605 F.3d 1250, 1254 (11th Cir. 2010) (quotation omitted and alteration adopted). So by picking "or," Congress did not treat these notices as a complete set, where each needed to be received to support an in absentia removal order. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 120 (2012).

Even if the plain text of this one provision were all we had, we would think that "or" means one or the other, not both. But here we have more. The full context of the statute announces its meaning—loud and clear. The reopening provision we consider works in tandem with the removal provision that appears earlier in the same statute. One specifies what notice is necessary to enter an in absentia removal order in the first place, while the other keeps that order in place unless an alien shows that he did not receive the required notice. Because the provisions’ notice requirements mirror one another, any insight about notice in the removal provision can inform our interpretation of the reopening provision.

Looking at the removal provision, its text is specific about what notice is necessary for in absentia...