De Jesus Velasquez-Escovar v. Holder, No. 10-73714 (9th Cir. 2014)
Annotate this CasePetitioner sought review of the BIA's affirmance of the IJ's denial of petitioner's motion to reopen. Immigration officials had failed to properly record petitioner's correct address and, instead, recorded another outdated address. Petitioner's notice to appear for her deportation hearing was sent to the outdated address. Consequently, petitioner failed to appear and was ordered removed in absentia. Upon learning about the order, petitioner moved to reopen. The court concluded that the BIA abused its discretion when it decided that petitioner was not entitled to notice under the immigration statutes. The BIA concluded that petitioner "did not" provide her current address after acknowledging that she claims she did. The BIA acted arbitrarily because it gives not reason for discounting petitioner's claim where the claim was facially plausible and supported by her declaration. Further, the BIA abused its discretion in concluding that petitioner was required to "ensure that the correct address was written down" instead of that she was required to "ensure that the correct address was supplied." Accordingly, the court granted the petition for review.
Court Description: Immigration. The panel granted Odilia de Jesus Velasquez-Escovar’s petition for review of the Board of Immigration Appeals’ denial of her motion to reopen an in absentia removal order. The panel held that the BIA abused its discretion in finding that Velasquez was not entitled to notice of her deportation hearing. The panel wrote that aliens are entitled to notice unless they fail to give a current address to the government, or fail to let the government know when they move, and held that Velasquez did neither. The panel held that the BIA arbitrarily discounted Velasquez’s unrefuted claim without providing a reason, because the two reasons it provided did not support its decision. The panel held that this court could not affirm the BIA’s decision pursuant to 8 C.F.R. § 1003.15(d)(1), which places the burden on an alien to inform the immigration court that the government used the wrong address on a Notice to Appear, because the BIA’s decision did not invoke that regulation, and because the NTA itself did not mention § 1003.15(d)(1) or otherwise put Velasquez on notice. Dissenting, Judge Rawlinson would find that the BIA did not act in an arbitrary or irrational fashion, and that it gave a reasoned explanation for its ruling. Judge Rawlinson would find Velasquez’s failure to provide her current address to the agency in writing fatal to her case. Judge Rawlinson would find that § 1003.15(d)(1) should apply to this case. Applying an abuse of discretion standard of review, Judge Rawlinson would find no abuse, and would deny the petition.
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