Diaz Martinez v. Barr, No. 17-72186 (9th Cir. 2019)
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The Ninth Circuit granted the petition for review of the BIA's denial of two motions to reopen petitioner's removal proceedings. Petitioner sought to reopen her removal proceedings after an IJ issued an in absentia removal order when she failed to appear at an immigration hearing.
The panel held that it had jurisdiction over petitioner's case because, absent any prejudice to the Government, a premature petition for review of an immigration order may ripen upon final disposition of the case by the BIA. On the merits, the panel held that the BIA abused its discretion in denying the appeal of a motion to reopen, where the IJ in the underlying removal proceeding ordered petitioner removable in absentia on the basis of an amended notice to appear. In this case, the in absentia removal order was not supported by substantial evidence because the record provided no evidence of proper service of the amended notice to appear, as required by due process, and the IJ ordered petitioner removed based on admissions to the charges for which she did not receive notice.
Court Description: Immigration. Granting Celia Diaz Martinez’s petition for review of an order of the Board of Immigration Appeals and remanding, the panel held that: 1) absent any prejudice to the Government, a premature petition for review of an immigration order may ripen upon final disposition of the case by the BIA; and 2) the BIA abused its discretion in denying Diaz Martinez’s appeal of an immigration judge’s denial of her motion to reopen, where the IJ in the underlying removal proceeding ordered Diaz Martinez removed in absentia on the basis of an amended notice to appear of which she did not receive proper notice. In 2007 Diaz Martinez was served with a notice to appear (“NTA”) charging her as an alien present in the United States who had not been admitted or paroled and alleging that she arrived in the United States at or near San Ysidro, California, on or about August 25, 1989. * The Honorable Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. DIAZ MARTINEZ V. BARR 3 In June of 2010, Diaz Martinez’s counsel was personally served a notice of her next hearing, and Diaz Martinez submitted a change of address to the immigration court and the Government. That same day, the Government issued an amended NTA, in which it amended its factual allegations to charge that she entered the United States at or near an unknown place on or about an unknown date. A box was checked indicating that the amended allegations were “in lieu of” the allegations in the 2007 NTA. The certificate of service section listed Diaz Martinez’s old address, not the new address she provided, and the boxes for means of service were all left blank. When Diaz Martinez did not appear at her next hearing, the IJ ordered her removed in absentia. In 2017, Diaz Martinez filed a motion to reopen, which the IJ denied, and Diaz Martinez appealed to the BIA. While her appeal was pending with the BIA, she filed a petition for review with this court on August 22, 2017, and the BIA later dismissed her appeal on October 25, 2017. Diaz Martinez also filed a second motion to reopen, this time with the BIA, which denied the motion, and Diaz Martinez sought review of that order in this court. The panel held that it had jurisdiction over Diaz Martinez’s first petition for review, concluding that, absent any prejudice to the Government, a petition for review of an IJ’s order of removal, prematurely filed with this court prior to a final order from the BIA, may ripen upon final disposition of the case by the BIA. The panel explained that this court has allowed for premature appeals to ripen in civil cases and emphasized the importance of lenity when addressing premature appeals by pro se litigants, as Diaz Martinez was when she prematurely filed her petition for 4 DIAZ MARTINEZ V. BARR review. The panel also noted the persuasive reasoning of the Second, Third, and Eleventh Circuits, which have held that a premature petition for review can ripen, and declined to follow the contrary approach of the Fifth and Sixth Circuits. As a threshold matter, the panel concluded that Diaz Martinez had sufficiently exhausted the argument that she lacked notice of the charges in the amended NTA. Next, the panel held that the BIA abused its discretion in denying the appeal of the IJ’s denial of her motion to reopen, explaining that her removal order relied on Diaz Martinez’s admissions to the amended NTA, despite the fact that there was no evidence in the record that she received the required notice of the amended NTA. The panel also concluded that this due process violation prejudiced Diaz Martinez, noting that: 1) she had plausible grounds for discretionary relief; 2) the failure to serve her deprived her of the opportunity to seek a continuance in light of the amended factual allegations; 3) she lacked notice of facts she would need to prove to qualify for relief; and 4) the order was not supported by substantial evidence, as it was based on an ineffective NTA. The panel thus remanded to the BIA with instructions to reopen the removal proceedings. Because the panel determined that the removal order was defective, the panel stated it would not reach Diaz Martinez’s petition for review of her second motion to reopen. Dissenting, Judge Clifton agreed with the majority that this court has subject matter jurisdiction over Diaz Martinez’s first motion to reopen. However, Judge Clifton dissented because: 1) Diaz Martinez failed to exhaust before the BIA the argument that the majority relies upon; and 2) to DIAZ MARTINEZ V. BARR 5 obtain relief based on a purported due process violation, a petitioner must demonstrate prejudice, and Diaz Martinez did not.
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