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Santos-Santos v. Barr

United States Court of Appeals, Sixth Circuit

February 28, 2019

Gualterio Lazaro Santos-Santos, Petitioner,
William P. Barr, Attorney General, Respondent.

         RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)

          On Petition for Review from the Board of Immigration Appeals; No. A 076 973 587.

         ON BRIEF:

          David W. Williams, Santa Ana, California, for Petitioner.

          Jeffery R. Leist, Anthony C. Payne, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before: SILER, COOK, and BUSH, Circuit Judges.


          Siler, Circuit Judge.

         Gualterio Lazaro Santos-Santos petitions for review of a 2018 order by the Board of Immigration Appeals ("Board") that affirmed an immigration judge's ("IJ") decision denying the motion to reopen an in absentia removal order entered against Santos-Santos in 2000. Santos-Santos argues that the Notice to Appear ("NTA")[1] served on him did not include the "date, time, and place" at which he was required to appear, and the IJ therefore had no jurisdiction to enter a removal order. We DENY the petition.


         Santos-Santos, a citizen of Mexico, entered the United States without inspection near Nogales, Arizona, in 1999. On March 6, 2000, he and his wife attempted to enter Canada from Port Huron, Michigan, but were denied admission by Canadian immigration authorities and directed back to Port Huron. They were referred to secondary inspection and questioned as to their citizenship and status in the United States. Both admitted to being citizens of Mexico and entering the United States illegally. Santos-Santos said he illegally resided in Chicago, Illinois. The Immigration and Naturalization Service ("INS") personally served Santos-Santos with an NTA, charging him with inadmissibility under the Immigration and Nationality Act ("INA") § 212(a)(6)(A)(i), [2] and ordering him to appear for a hearing in Detroit. The NTA listed his address as "2444 South Troy, Chicago, Illinois, 60623," and indicated that the date and time of the hearing was "to be determined." On May 19, a "Certificate of Service of Charging Document with the Immigration Court" was issued to Santos-Santos at the same address, informing him that the NTA had been sent to the Detroit immigration court. On May 24, the Detroit immigration court issued a Notice of Hearing ordering him to appear on October 20, 2000; it was mailed to Santos-Santos at "2444 South Troy, Chicago, IL 60623." Santos-Santos failed to appear at his October 20, 2000, hearing and was ordered removed in absentia. The order was mailed to the same address. Santos-Santos claims he did not receive the in absentia order and only learned of it when he was involved with immigration proceedings in Los Angeles.

         In 2018, Santos-Santos, through counsel, filed a motion to reopen the in absentia order with the immigration court. Santos-Santos argued that he never received notice of his hearing date, and that "[t]he record is silent as to whether the Service even attempted to provide Respondent with a Notice of Hearing." He further contended that, because the NTA did not include the date and time of his hearing, it was facially defective, rendering the proceedings void ab initio. In an attached declaration, Santos-Santos said that while he received the NTA that stated the date and time of the hearing were to be determined, he did not receive any other notices.

         The Department of Homeland Security ("DHS")[3] filed a response in opposition to Santos-Santos's motion. It noted that a Notice of Hearing was sent on May 24, 2000 instructing Santos-Santos to appear on October 20, 2000. DHS contended, inter alia, that the presumption of regularity established that the notice was properly delivered and Santos-Santos had not adequately rebutted that presumption. DHS further argued that Santos-Santos failed to cite any authority supporting his argument that a lack of date and time of the hearing on the NTA meant that the IJ did not properly exercise jurisdiction over his case.

         The IJ denied the motion to reopen for "the reasons stated in the opposition to the motion." Santos-Santos petitioned the Board, reiterating his claim that he never received notice of the hearing and the IJ erred in exercising jurisdiction. The Board dismissed the appeal on May 2, 2018, finding that there was no evidence that either the NTA or the in absentia order was returned to the immigration court. Further, the Board noted that Santos-Santos did not (1) argue that the notice was addressed incorrectly, (2) claim that he was having mail delivery problems at that address, (3) initiate proceedings to obtain relief, or (4) report what efforts he took to determine the status of his proceedings in the interim seventeen years before his motion to reopen. The Board also determined that an NTA need not include the time and date of a removal hearing, and that the statutory notice requirements may ...

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