On August 5, 2020, the Board of Immigration Appeals (BIA or Board) dismissed Respondent’s appeal of a decision by the Immigration Judge (IJ) denying his motion to reopen and rescind his in absentia removal order. Respondent had entered the U.S. without inspection in 1999, been detained by legacy INS, and charged with removability under INA §212(a)(6(A)(i) as being present without admission or parole. He was personally served with a Notice to Appear (NTA) within a month of his entry; the NTA advised Respondent of both the consequences of failing to appear for removal proceedings and the requirement that he must notify the Immigration Court of his address. He was subsequently provided a notification informing him of where to report any change of address and warning him of the consequences of failing to provide that information, which he signed. When released from detention, Respondent also signed a form acknowledging this requirement and verifying his mailing address.
Three months later, the Immigration Court sent Respondent a Notice of Hearing at the address on these forms, scheduling his hearing. The notice was returned, stamped “ATTEMPTED, NOT KNOWN”, with a handwritten note: “Please return it to the sender”. Respondent did not appear at his scheduled hearing and was ordered removed in absentia. A little more than 18 years later, he filed his motion to reopen with the court, claiming he never received notice of the hearing because it was not properly addressed, i.e., the name of the town was misspelled. He further argued that he had provided the correct address, as demonstrated by a subsequent, correctly addressed bag and baggage order. The IJ denied the motion and Respondent reiterated his contentions on appeal.
The BIA began its opinion by noting that Respondent had been personally served with the NTA, which informed him of “the statutory address reporting obligations associated with removal proceedings” and, as such, he was required to provide his correct address in the first instance; even assuming he accidentally misspelled his town’s name, “he was on notice that he had a duty to correct his address information” and to notify the court as to where he could receive mail. Further, concluded the decision, his failure to correct his address before the hearing notice was mailed “demonstrates his lack of compliance with this obligation.” Because Respondent had been “clearly advised” of the need to provide his correct address to the Immigration Court and had not done so, the Board found that he had received constructive notice of his hearing, “even if he did not receive actual notice of it.”
As to the correctly-addressed bag and baggage order, there was “no indication” that Respondent had provided the address on this document to INS nor “any indication” he had concurrently reported it to the court. The BIA also concluded that the order, in and of itself, failed to establish that he had “independently provided a corrected mailing address to the Immigration Court” once he learned that the town was incorrectly spelled. Additionally, Respondent’s failure to update his address for 18 years “indicates a lack of due diligence and may properly be found to undermine the veracity of his claim he has taken actions to maintain his rights in the underlying removal proceedings.”
The Board thus held that where one has been personally served with a Notice to Appear advising him of the requirement to notify the court of his correct address, fails to do so and is ordered removed in absentia for failure to attend his hearing, reopening of the proceedings to rescind the removal order based on lack of proper notice is not warranted by INA §240(b)(5)(C)(ii). Further, Respondent’s lack of due diligence mitigates against a grant of reopening. The appeal was therefore dismissed. Matter of Nivelo Cardenas, 28 I&N Dec. 68 (BIA 2020).
