Distinguishing Nivelo-Cardenas When Filing Motions to Reopen
By: Ernesto Porcari and Alexander T. Holtzman, Esq.
February 2nd, 2021
In the course of our representation, the Deportation Defense Clinic at the Maurice A. Deane School of Law at Hofstra University won a motion to reopen this past semester. Students at Hofstra’s Deportation Defense Clinic provide: (1) client representation; (2) impact litigation; and (3) community advocacy. One client in particular needed to reopen his case after being ordered removed in absentia at the age of two. This past semester, we argued the BIA’s Nivelo-Cardenas decision was distinguishable from our client’s facts regarding lack of notice. 28 I&N Dec. 68 (BIA 2020). Our motion was granted, but the IJ did so based on our argument for changed country conditions for asylum. Nonetheless, practioners filing motions to reopen must continue to distinguish Nivelo-Cardenas even as they argue alternative grounds for reopening. This post provides some tips for doing so.
In Nivelo-Cardenas, the BIA upheld an IJ’s denial of a motion to reopen based on a lack of notice argument. The respondent had provided INS with his address, but misspelled his city as “Patcbogue” instead of the correct Long Island city of “Patchogue.” When the IJ sent a hearing notice to the address provided by respondent, it was returned with a note saying “return to sender.” The respondent was ordered removed in absentia when he did not appear for his MCH. The BIA upheld the in absentia order because “reopening of the proceedings to rescind his order of removal based on a lack of proper notice (in these circumstances) is not warranted under INA § 240(b)(5)(C)(ii) of the INA.” This holding means that even the slightest mistake by a respondent in providing their address could mean receiving an in absentia removal order, despite the very real possibility that the respondent never received notice of the hearing.
Clients have several avenues to reopen their cases after a removal order. They can file a motion to reopen with the Immigration Court within 90 days of a removal order based on new evidence. See INA § 240(c)(7). Motions to reopen may also be filed based on changed country conditions for asylum; exceptional circumstances if filed within 180 days or if equitably tolling that deadline is permitted by circuit law; or based on a lack of notice. INA §§ 240(c)(7)(C)(ii); 240(b)(5)(C).
While the need for respondents to provide DHS with their address might seem like a reasonable expectation to facilitate the judicial process, as might the requirement to update any change of address, there exist structural barriers and challenges to doing so that directly harms respondents. Many noncitizens that our clinic represents enter at the U.S.-Mexico border and are served with an NTA hundreds of miles from their residences on Long Island, New York. Our clients may be forced to give DHS an unfamiliar address and may sign a form in English that states their “understanding” of the need to update any address changes. Expecting non-lawyers to navigate our complex immigration system, including its statutory and regulatory address change requirements, is unrealistic and cruel. The stakes are high for noncitizens who face being ordered deported in absentia. This is only made worse by Nivelo-Cardenas. Despite these unjust practical and policies consequences, practioners must nonetheless grapple with cases like Nivelo-Cardenas.
How does one win a lack of notice argument after Nivelo-Cardenas? In filing our own motion to reopen for a client this year, we relied on distinguishing facts. Due to the age of our client (who was 2 years old at the time of his in absentia removal order), we pointed to the incapacity of an infant to provide the correct address. Second, we showed that DHS had handwritten an incorrect zip-code on the respondent’s NTA, despite our client’s family having provided the correct address. These facts were clearly distinguishable from those in Nivelo-Cardenas: the incorrect address was attributable to the government rather than respondent. In another MTR won by our clinic this past semester, we provided distinguishing facts to show that the IJ had accepted an erroneous E-33 change of address form filed without respondent’s permission. This motion to reopen was also granted. Advocates should continue exploring distinguishing facts in their cases.
Another argument against the reasoning of Nivelo-Cardenas can be found in the language of the INA. As long as clients can file proof (often their or another witness’ affidavit) stating that they could have been reached at the address they provided (i.e. someone would have informed them that a letter arrived) then one may argue that our clients are not in violation of the statutory address change requirements because they “have provided” an address where they may be reached in compliance with INA§239(a)(1)(F). Advocates may also find it helpful to analyze the M-R-A- case (assessing whether the mail actually arrived), or point to the lack of a definition for what constitutes an “address” under the INA. 24 I&N Dec. 665 (BIA 2008).
Practitioners should also review helpful case law like Lopes v. Gonzales in the Second Circuit, which explains “[a]s the use of the word ‘receive’ establishes, when considering the motion to reopen [based on a lack of notice], the central issue no longer is whether the notice was properly mailed (as it is for the purpose of initially entering the in absentia order), but rather whether the alien actually received the notice.”468 F.3d 81 (2d Cir. 2006) (emphasis in original); see also Santana-Gonzalez v. Attorney General, 506 F.3d 274 (3d Circ. 2007); Joshi v. Ashcroft, 389 F.3d 732 (7th Cir. 2004). So, too, have circuit courts found in favor of respondents who filed motions to reopen in other sympathetic contexts. Velasquez-Escovar v. Holder, 768 F.3d 1000 (9th Cir. 2014) (Remand where respondent gave immigration officials her correct address before the NTA was filed, but officials erroneously listed the old address on the NTA); Fuentes-Pena v. Barr, 917 F.3d 827, 831 (5th Cir. 2019) (Remanding respondent’s case because “by notifying ICE of her change of address before it filed the NTA with the immigration court, Fuentes-Pena satisfied her statutory obligation to provide notice of her change of address, and her failure to attend her removal hearing is excused.”).
Nivelo-Cardenas should be reversed, but until it is advocates must find ways to distinguish its facts when filing motions to rescind and reopen based on lack of notice arguments. This post provides a few ideas to start this discussion among I-ARC advocates.