Singh v. Garland

51 F.4th 371 (Mem)

Varinder SINGH, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-70050

United States Court of Appeals, Ninth Circuit.

FILED October 12, 2022

Saad Ahmad, Attorney, Fremont, CA, for Petitioner.

Elizabeth K. Fitzgerald-Sambou, William Clark Minick, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent.

Before: McKEOWN and GOULD, Circuit Judges, and MOLLOY,^* District Judge.

Order;

Dissent by Judge Collins ;

Statement by Judge O'Scannlain

ORDER

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. See Fed. R. App. P. 35.

The petition for rehearing en banc (Dkt. 49) is DENIED .

COLLINS, Circuit Judge, with whom CALLAHAN, M. SMITH, IKUTA, BENNETT, NELSON, BADE, LEE, BRESS, FORREST, BUMATAY, and VANDYKE, Circuit Judges, join, dissenting from the denial of rehearing en banc:

The panel's published opinion in Singh v. Garland , 24 F.4th 1315 (9th Cir. 2022), seriously misconstrues the text of the Immigration and Nationality Act ("INA") in resolving an exceptionally important question concerning the type of notice that must be provided to an alien under that Act before an immigration court may proceed with an in absentia removal. According to the panel decision in Singh , an alien who is properly served with notice of the date, time, and place of his or her removal hearing but then fails to show up can have the resulting in absentia removal order set aside based on irrelevant errors in paperwork at the outset of the removal process. The panel's erroneous decision casts doubt on the validity of potentially tens of thousands of in absentia removal orders that have been issued in this circuit over the last two decades. Indeed, in the panel's accompanying unpublished decision in Mendez-Colin v. Garland , 2022 WL 342959 (9th Cir. 2022), the reductio ad absurdum has already arrived: the panel applies Singh to invalidate a 19-year-old removal order entered in a case in which the alien, after attending multiple hearings over nearly a year and receiving actual notice of the next one, simply dropped out of contact with his lawyer and consequently skipped the next hearing. It is little wonder that the panel's erroneous decision—which already conflicted with a prior decision of the Sixth Circuit—has now been expressly rejected by the Eleventh Circuit. This is a paradigmatic case that cries out for further review, and I respectfully dissent from our failure to rehear this case en banc.

I

To set the panel's analysis in context, and to make the panel's errors more apparent, it is helpful first to summarize the relevant provisions of the INA before turning to the specific facts of these two cases and then to the panel's decisions.

A

Section 239(a) of the INA provides for two distinct types of notices that must be provided to an alien over the course of removal proceedings, which are commonly referred to as a "Notice to Appear" ("NTA") and a "Notice of Hearing" ("NOH"). See 8 U.S.C. § 1129(a).¹

First, paragraph (1) of § 239(a) provides that, at the outset of removal proceedings, a "written notice (in this section referred to as a ‘notice to appear’) shall be given" to the alien setting forth certain enumerated categories of information, including (i) the "charges against the alien and the statutory provisions alleged to have been violated"; (ii) the "requirement" that the alien provide and update the "address and telephone number" at which he or she "may be contacted" about the removal proceedings; (iii) the "time and place at which the proceedings will be held," and (iv) the "consequences ... of the failure, except under exceptional circumstances, to appear at such proceedings." 8 U.S.C. § 1129(a)(1)(D), (F), (G)(i)–(ii). The Supreme Court has strictly construed the requirements for such NTAs, holding that the use of the article "a" in § 239(a)(1)'s reference to "a ‘notice to appear,’ " as well as other textual clues, confirm that all of the statutorily enumerated information required to be included in an NTA must be provided in a "single document." Niz-Chavez v. Garland , ––– U.S. ––––, 141 S. Ct. 1474, 1480, 209 L.Ed.2d 433 (2021) (emphasis added); see also Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 2109–10, 201 L.Ed.2d 433 (2018) (holding that an NTA that omitted the "time or place of the removal proceedings" failed to comply with the requirements of § 239(a)(1) and was insufficient to trigger the so-called "stop-time rule" of INA § 240A(d)(1)(A)).²

Second, paragraph (2) of § 239(a) states that, "in the case of any change or postponement in the time and place" of such removal proceedings, "a written notice shall be given" to the alien that includes only two things: (i) "the new time or place of the proceedings"; and (ii) the "consequences ... of failing, except under exceptional circumstances, to attend such proceedings." 8 U.S.C. § 1229(a)(2)(i)–(ii). Noting that this provision also refers to "a written notice," the Court in Niz-Chavez stated that this smaller subset of statutorily enumerated items that are required for an NOH must likewise be provided in a "single document." 141 S. Ct. at 1483–84.

In describing what an NTA and an NOH must say about the "consequences" of failing to appear at a removal hearing, paragraphs (1) and (2) of § 239(a) both explicitly cross-reference § 240(b)(5) of the INA. See 8 U.S.C. § 1229(a)(1), (2) (citing id. § 1229a(b)(5) ). That provision, in turn, states that "[a]ny alien who, after written notice required under paragraph (1) or (2) of section 239(a) [ 8 U.S.C. § 1229(a) ] has been provided to the alien or the alien's counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence [1] that the written notice was so provided and [2] that the alien is removable (as defined in subsection (e)(2))." Id. § 1229a(b)(5)(A).³

The statute, however, also provides an alien with a limited ability to seek subsequently to rescind an in absentia removal order entered under § 240(b)(5). Specifically, § 240(b)(5)(C) states that "[s]uch an order may be rescinded only" in two circumstances: (1) "upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances"; or (2) "upon a motion to reopen filed at any time if the alien demonstrates" either (i) "that the alien did not receive notice in accordance with paragraph (1) or (2) " of § 239(a), or (ii) "the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien." 8 U.S.C. § 1229a(b)(5)(C) (emphasis added). As the specific facts of these cases will make clear, the issue here concerns the meaning of this italicized phrase.

B

Singh is a native and citizen of India. See 24 F.4th at 1316. He entered the United States illegally in October 2016 and was detained by DHS, which began removal proceedings against him. See id. On December 1, 2016, DHS personally served Singh with an NTA stating that the date and time of Singh's removal hearing were "TBD." Id. DHS released Singh, who reported that he would be residing at an address in Dyer, Indiana.

On December 6, 2016, DHS mailed an NOH under INA § 239(a)(2) to Singh at the designated Indiana address advising him that he was scheduled for a master hearing on January 29, 2021 at 8:00 AM at the immigration court in Imperial, California. See 24 F.4th at 1316. On October 29, 2018, DHS sent a second NOH to Singh at the same Indiana address, informing him that the date and time of the master hearing had changed to November 26, 2018 at 1:00 PM.

Singh did not appear for the master hearing on November 26, 2018. The immigration court re-scheduled the hearing for December 12, 2018. DHS sent a third NOH to Singh at the Indiana address informing him that the date of the master hearing had changed to December 12, 2018.

Singh failed to appear for the master hearing on December 12, 2018. See 24 F.4th at 1316. Accordingly, the IJ proceeded to consider whether Singh should be ordered removed in absentia under INA § 240(b)(5)(A). The IJ found that Singh had been provided both written notice of the time, date, and location of the hearing and a written warning that failure to attend the hearing, for other than exceptional circumstances, would result in the issuance of an order of removal if removability was established. The IJ determined that DHS had submitted sufficient evidence to establish Singh's removability as alleged in the NTA and that Singh's failure to appear was not due to exceptional circumstances. 24 F.4th at 1316. Finally, the IJ found that Singh's failure to appear constituted an abandonment of any pending applications for relief. The IJ therefore ordered him removed in absentia. Id.

In April 2019, Singh filed a motion to reopen with the immigration court. 24 F.4th at 1316. Singh conceded that the NOHs had arrived at the Indiana address he had designated but he claimed that he never actually received them due to "a failure in the inner workings of the household." Id. He nonetheless argued that he did not receive proper notice under § 239 because his NTA lacked the hearing date and time information. The IJ denied the motion and the BIA affirmed.

Mendez-Colin is a native and citizen of Mexico. On August 25, 2001—over 20 years ago—Mendez-Colin attempted to gain entry to the United States through the San Luis Port of Entry vehicle lane by falsely claiming to be a U.S. citizen. In doing so, he also attempted to gain entry for two other aliens who were in the vehicle. He was detained and the next day, on August 26, 2001, the INS⁴ personally served...