Meyers v. U.S. Attorney Gen.

1

LUZ ELENA MEYERS, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 20-14721

United States Court of Appeals, Eleventh Circuit

May 2, 2024

DO NOT PUBLISH

Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A087-252-574 Before JORDAN, LUCK, and LAGOA, Circuit Judges.

LUCK Circuit Judge:

Luz Meyers, a native and citizen of Colombia, petitions for review of the denial of her motion to reopen removal proceedings under 8 U.S.C. section 1229a(b)(5)(C). Meyers, in her motion, argued that the immigration judge should reopen proceedings because she "did not receive notice" of her removal hearing. 8 U.S.C. § 1229a(b)(5)(C)(ii). After considering the evidence, the immigration judge denied the motion to reopen because Meyers had not met her burden to show she did not receive notice of her removal hearing. Because the immigration judge's decision was not arbitrary or capricious, we deny Meyers's petition for review.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Meyers first entered the United States in 1998 on a B2 tourist visa. In 2008, while renting a house on Pecan Run Radial in Ocala Florida, Meyers married a United States citizen who moved in with her.

That same year, Meyers's husband petitioned the Department of Homeland Security on her behalf to grant her permanent resident status. The petition listed the Pecan Run address as Meyers's current address and the one where she "intend[ed] to live." The department conditionally approved the petition in 2009. But Meyers failed to petition to remove the conditions, so the department terminated her permanent resident status in 2011.

In June 2013, the department sent Meyers a notice to appear at her removal proceedings. The notice to appear was sent by regular mail to the Pecan Run address and charged Meyers as removable. It ordered her to appear before an immigration judge on a date and time "to be set." It also warned that if Meyers didn't appear, the immigration judge may order that she be removed in her absence.

Two weeks later, the immigration court sent Meyers-also by regular mail to the Pecan Run address-a notice of hearing. The notice of hearing set Meyers's removal hearing for July 11, 2013, at 8:30 A.M. in Orlando, Florida. Like the notice to appear, it warned that if Meyers failed to appear the hearing could be held without her. It also warned that if the hearing was held in her absence an order of removal could be entered against her.

The hearing was held as scheduled on July 11, but Meyers didn't appear. The immigration judge conducted the hearing in Meyers's absence, or "in absentia," under 8 U.S.C. section 1229a(b)(5)(A), and ordered that Meyers be removed to Colombia. The immigration judge found that: (1) Meyers "was provided written notification of the time, date[,] and location" of the hearing; (2) Meyers was "provided a written warning that failure to attend th[e] hearing . . . would result in the issuance of an order of removal in [her] absence"; and (3) the department "submitted documentary evidence relating to [Meyers] which established the truth of the factual allegations" charged in the notice to appear. Like the notices, the removal order was mailed to the Pecan Run address.

Meyers did not appeal the 2013 removal order to the Board of Immigration Appeals. Instead, in August 2019-six years after she was ordered removed-Meyers filed a motion to reopen removal proceedings under 8 U.S.C. section 1229a(b)(5)(C). Meyers argued she was "eligible to reopen . . . on three grounds," but only the first ground-lack of notice-is relevant to her petition.

Meyers argued that "[w]hen [a] [c]ourt considers a motion to reopen, the central inquiry is whether or not the alien actually received notice" of the removal hearing. Meyers submitted an affidavit stating that she didn't receive notice of her removal hearing. She said that both she and her ex-husband left the Pecan Run address in 2010 after they separated. So, Meyers explained, she "no longer resided at [the Pecan Run] address" when the department mailed the notice to appear and notice of hearing because she had moved in with a friend. Meyers admitted that she never provided the department with an updated mailing address. But she said that she didn't provide an updated address because her original attorney told her "to not file anything." When Meyers retained new counsel in 2019, that attorney requested Meyers's records from the department and discovered the order of removal.

The department opposed reopening removal proceedings. It responded that Meyers couldn't "on the one hand fail to update her address as required, and on the other hand use that same failure to claim a lack of notice."

The immigration judge denied Meyers's motion to reopen proceedings. The immigration judge acknowledged that an in absentia removal order can be rescinded at any time under 8 U.S.C. section 1229a(b)(5)(C)(ii) if the movant shows she didn't receive a written notice satisfying 8 U.S.C. section 1229(a). The immigration judge concluded, however, that Meyers did not satisfy her burden of showing she lacked notice.

Under In re M-R-A-, 24 I. &N. Dec. 665, 671 (B.I.A. 2008), the immigration judge explained, a "properly addressed notice . . . is presumed to have been received by [an] addressee" if it is "sent [by] regular mail according to normal office procedures." The immigration judge also explained that the presumption is rebuttable and weaker than the one that applies when notice is sent by certified mail. Under this framework, the immigration judge first found that the weaker presumption applied to Meyers's motion. The immigration judge cited evidence that the Pecan Run address was Meyers's mailing address-specifically, Meyers's own affidavit acknowledged she rented the house on Pecan Run, and she listed that house's address when applying for residency. The immigration judge also cited how "[Meyers] concede[d] that the [notice to appear], notice of hearing, and in absentia order were sent to her [Pecan Run] address." The immigration judge then found that Meyers didn't overcome the presumption. The immigration judge reasoned that Meyers conceded that the notice to appear and notice of hearing were mailed to the Pecan Run address, that Meyers "by her own admission" never notified the department that she moved out of the Pecan Run house, and that Meyers produced no evidence that the notice documents were returned as undeliverable by the post office.

Meyers appealed the immigration judge's order to the board. On appeal, Meyers acknowledged that a noncitizen "may be served with a [notice to appear] or [notice of hearing] by regular mail." And she acknowledged that the department did that here by mailing the notice to appear and notice of hearing to the Pecan Run address in 2013. But, Meyers pointed out, she provided the Pecan Run address to the department "years earlier." Thus, she contended, the department "did the same thing" here that the Immigration and Naturalization Service did in In re G-Y-R-, where the board concluded that "the entry of an in absentia order is precluded" if the noncitizen "did not receive the [n]otice to [a]ppear and the notice of hearing it contains." 23 I. &N. Dec. 181, 189-90 (B.I.A. 2001) (en banc).

The board affirmed the immigration judge's order "without opinion." Meyers then petitioned for our review.

STANDARD OF REVIEW

Because the board summarily affirmed the immigration judge's order "without opinion," we review the immigration judge's reasoning as if it were the board's. Dragomirescu v. U.S. Att'y Gen., 44 F.4th 1351, 1353 (11th Cir. 2022). We review for an abuse of discretion the denial of a motion to reopen removal proceedings, Li v. U.S. Att'y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007), and that review is "limited" to determining whether the denial was "arbitrary or capricious," Zhang v. U.S. Att'y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009) (citation omitted). We review de novo any underlying legal conclusions. Li, 488 F.3d at 1374.

DISCUSSION

Meyers argues that her case should have been reopened because it is "undisputed" that she didn't receive written notice, citing her affidavit's statement that she didn't live at the Pecan Run address when notice was mailed. Under those circumstances, she contends, the board's In re G-Y-R- decision required reopening proceedings. We disagree. Because the immigration judge's finding that Meyers failed to satisfy her burden of showing she never received notice was not arbitrary or capricious, we conclude the immigration judge didn't commit an abuse of discretion by denying her motion to reopen the removal proceedings.^[1]

We begin by describing the relevant statutory framework. The Immigration and Nationality Act establishes "an intricate set of procedures" for removing noncitizens. Dragomirescu, 44 F.4th at 1354 (citing 8 U.S.C §§ 1229, 1229a). The removal process "often includes multiple hearings before an immigration judge," and the noncitizen "generally has a right to be present" at these hearings. Dacostagomez-Aguilar v. U.S. Att'y Gen., 40 F.4th 1312, 1315 (11th Cir. 2022) (citations omitted). But if the noncitizen fails to appear, the immigration judge can order that she be removed in absentia if she received "written notice" of the hearing as "required under paragraph (1) or (2) of [8 U.S.C.] section 1229(a)." 8 U.S.C.§ 1229a(b)(5)(A); see Dacostagomez-Aguilar, 40 F.4th at 1315 ("[S]kip-ping a hearing does not strip the immigration court of its power."). "[W]ritten notice" is "sufficient for purposes of [section 1229a(b)(5)(A)]" if given "at the most recent address provided under section 1229(a)(1)(F)." 8 U.S.C. § 1229a(b)(5)(A).

Section 1229(a) refers to two kinds of written notice. See id. § 1229...