Introduction: Matter of Nivelo Cardenas, 28 I&N Dec. 68 (BIA 2020)

On August 5, 2020, the Board of Immigration Appeals (BIA) published a precedential decision in Matter of Nivelo Cardenas, 28 I&N Dec. 68 (BIA 2020) [PDF version]. Matter of Nivelo Cardenas involved an alien who was personally served with a notice to appear advising him of his obligation to provide the immigration court with his correct information. Although the alien noticed that the recording of his address contained an error, he failed to update his address for over 18 years. The Board upheld the denial of the respondent’s request to have his in absentia removal order rescinded and his removal proceedings reopened after finding that the facts undermined his claim that he had exercised due diligence in taking actions to maintain his rights in removal proceedings. More broadly, the Board held that rescinding an in absentia order and reopening proceedings based on lack of notice is generally not warranted where the alien was personally served with a notice to appear advising him or her of the requirement that he or she provide up-to-date contact information to the immigration court, and where the alien fails to do so despite such notice.

In this article, we will examine Matter of Nivelo Cardenas and the broader effects of the Board’s decision.

Factual and Procedural History of Matter of Nivelo Cardenas: 28 I&N Dec. 68, 68-70

The respondent was a native and citizen of Ecuador. He entered the United States in July 1999. After entry, he was detained by the former Immigration and Naturalization Service (INA) and charged with being removable for being present in the United States without having been admitted or paroled (INA 212(a)(6)(A)(i)). The INS personally served the respondent with a notice to appear on July 23, 1999.

The notice to appear served on the respondent advised him of the consequences of failing to appear for removal proceedings. It explained that the respondent was required to notify the Immigration Court of his correct address, in accordance with INA sections 239(a)(1)(F) and 239(a)(1)(G)(ii). The respondent received a Notification Requirement for Change of Address Form, which provided information about where he should report any change of address and advising him of the consequences of failing to do so.

The respondent was released from immigration detention on August 17, 1999. By that time, he had signed the Notification Requirement for Change of Address Form, acknowledging that he was required to report any change of address and verifying that the mailing address he had provided the INS on his Form I-830, Notice to EOIR: Alien Address, was correct.

The address the respondent provided to the EOIR was a specific street address in the town of “Patcbogue,” New York. On October 1, 1999, the Immigration Court sent a notice of hearing to the respondent at the “Patcbogue” address he had provided on the Form I-830. The notice was returned to the Immigration Court, stamped “ATTEMPTED, NOT KNOWN” with a handwritten notation saying that the notices should be returned to sender.

The respondent failed to appear at his scheduled removal hearing on January 28, 2000, and was ordered removed in absentia.

More than 18 years after the respondent was ordered removed in absentia, the respondent filed a motion to reopen his removal proceedings with the Immigration Court on November 19, 2018, requesting rescission of the in absentia removal order. The respondent argued that he had not received the 1999 notice of hearing because the Immigration Court had not properly addressed it. The respondent explained that the notice was sent to “Patcbogue” rather than “Patchogue,” the latter being the correct spelling of the town he resided in.

The respondent argued that he had provided the correct address, and that the error was fault on the part of the Immigration Court. To support his claim, he pointed to a subsequently issued “bag and baggage letter,” indicating his correct address of “Patchogue” rather than “Patcbogue.”

The Immigration Judge denied the respondent’s motion to reopen. The respondent appealed from the denial to the BIA, reiterating the same arguments he advanced before the Immigration Judge.

Timeliness: 28 I&N Dec. 68, 70

There are two circumstances in which a motion to reopen removal proceedings and rescind an in absentia removal order may be granted:

1. The motion is filed within 180 days of the entry of the in absentia removal order and the alien establishes that his or her failure to appear was due to “exceptional circumstances”;
2. The motion is filed at any time and the alien demonstrates that he or she did not receive notice or that he or she was in Federal or State custody and failed to appear through no fault of his or her own.
INA 240(b)(5)(C); 8 CFR 1003.23(b)(4)(ii).

The respondent filed his motion more than 18 years after the entry of his in absentia removal order and he was not in Federal or State custody at the time of his failure to appear. Thus, the respondent bore the burden of showing that “he did not receive notice” of his removal hearing. INA 240(b)(5)(C).

Board Finds that Respondent Received Constructive Notice of Hearing Date: 28 I&N Dec. 68-72

The Board agreed with the Immigration Judge’s conclusion that the respondent failed to establish that he did not receive proper notice of his January 28, 2000, removal hearing. We will examine the Board’s analysis and conclusions below.

To begin, the Board noted that the respondent had been properly informed of his address reporting obligations through the instructions on the notice to appear served on him in 1999.

The record included a Form I-830, Notice to EOIR: Alien Address, dated August 17, 1999. The Form I-830 indicated that the respondent reported his own mailing address to an immigration officer as being in “Patcbogue,” New York. Furthermore, the respondent signed a form confirming that this “Patcbogue” address was his correct address.

The record indicated that the Immigration Court attempted to mail the respondent’s notice of hearing to the “Patcbogue” address indicated on the Form I-830. The notice of hearing was returned to the INS with notes that delivery had been attempted. The Board explains that “it appears that the United States Postal Service attempted delivery at the address provided by the respondent and the notice was returned, not because it was undeliverable, but because someone who received mail at that address requested that it be returned to the sender.”

The Board explained that under INA 239(c), service by mail is “sufficient if there is proof of attempted delivery to the last address provided by the alien in accordance with [section 239(a)(1)(F)]’ of the Act.”

The Board further held that even if the respondent had inadvertently provided the incorrect spelling of the city name, its conclusion would not change. It explained that the respondent was on notice that he had a duty to correct his address information and affirmatively and properly notify the Immigration Court of his mailing address where he could receive notice. “Inherent in the concept of notice is the implicit obligation that the intended recipient must provide the information necessary for the notice to be received.”

In 2018, the United States Court of Appeals for the Fifth Circuit, in whose jurisdiction the instant proceedings arose, held that an alien has a statutory obligation to correct any errors in the address listed on the notice to appear. Mauricio-Benitez v. Sessions, 908 F.3d 144, 148 (5th Cir. 2018) [PDF version]. Thus, failure to correct an address alone cannot serve as the basis for reopening proceedings and rescinding an in absentia removal order. The Board reasoned that because the respondent had been “clearly advised” of his obligations to ensure that his address information was correct, and because he had failed to correct errors in his address, reopening was not warranted. Because the Immigration Court sent the notice of hearing to the address that the respondent provided, the Board held that this effort constituted “constructive notice” to the respondent.

The Board further found unpersuasive the respondent’s claim that he had provided the correct address based on a “bag and baggage letter” . To start, the Board noted that the document, which was actually a “bag and baggage checklist,” was issued by the INS not the Immigration Court. Furthermore, there was no evidence in the record to support the claim that the respondent had provided the address information on the document to the INS, much less that he had concurrently reported it to the Immigration Court. The document similarly did not establish that the respondent had independently corrected his address with the Immigration Court upon learning or realizing that it was spelled incorrectly.

Board Finds that Respondent Did Not Take Sufficient Action to Preserve His Rights: 26 I&N Dec. 68, 72-73

The respondent additionally argued that his proceedings should be reopened because he took sufficient action to preserve his rights. He stated that he checked his mailbox every day for the notice of hearing, only to find that it never arrived. The Board found that regardless of this claim, “the respondent’s failure to update his address for over 18 years indicates a lack of due diligence and may be properly found to undermine the veracity of his claim that he has taken actions to maintain his rights in the underlying removal proceedings.”

The Board explained that in Matter of M-R-A-, 24 I&N Dec. 665, 676 (BIA 2008) [PDF version], the Board explained “that a significant factor supporting reopening where the respondent claimed he received no notice of the hearing was his ‘due diligence in promptly seeking to redress the situation by obtaining counsel and requesting reopening of the proceedings’ within a month of the entry of the in absentia removal order.” Conversely, the Board noted that, in the instant matter, the respondent waited for more than 18 years after he was personally served with the notice to appear and ordered removed in absentia before filing a motion to reopen. The Board noted that the respondent did not explain what actions he took over those 18 years to follow up on his case with the Immigration Court. He also did not show what actions he took to update his address over those 18 years.

General Rule: 28 I&N Dec. 68, 73

[W]here an alien who has been personally served with a notice to appear advising him of the requirement to notify the Immigration Court of his correct address fails to do so and is ordered removed in absentia for failure to appear for the scheduled hearing, reopening of the proceedings to rescind his order of removal based on a lack of proper notice is not warranted under section 240(b)(5)(C)(ii) of the Act.

Conclusion

The Board’s decision in Matter of Nivelo Cardenas emphasizes that respondents are subject to an affirmative requirement to ensure that the address information provided to the Immigration Court is correct. Even taking the most favorable view of the respondent’s case — that he had provided the correct address information and it was recorded with a spelling error — the Board would have still rejected the claim on the basis that the respondent certified that the information was correct and undertook no efforts to resolve the error. Furthermore, the Board additionally noted the respondent’s failure to take any action regarding the case for more than 18 years after service of the notice to appear and his being ordered removed in absentia.

In short, it is imperative for non-detained aliens in removal proceedings to provide accurate and up-to-date address information to the immigration court. The failure to do so will result in the alien’s being ordered removed in absentia, without the opportunity to contest the removal charges or otherwise seek relief from removal. Similarly, aliens must affirmatively seek to correct any errors in the address information. Aliens in removal proceedings are always well-advised to seek the counsel of an experienced immigration attorney, both for ensuring that technical requirements are met and in seeking to avoid removal through the legal process.