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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13576
____________________
SAMUEL DACOSTAGOMEZ-AGUILAR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A097-344-614
____________________
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2 Opinion of the Court 20-13576
Before BRANCH, GRANT, and BRASHER, Circuit Judges.
GRANT, Circuit Judge:
Congress has established specific administrative proceedings
for deciding whether to remove a person who lacks the right to
remain in this country. Skipping those proceedings is no way to
avoid removal. To prevent such attempts to circumvent the
immigration process, Congress allows immigration judges to order
removal “in absentia” after the failure to attend a hearing—so long
as the government gave notice of the hearing beforehand.
The question we consider is exactly what kind of notice
deficiencies must be shown before an in absentia removal order can
be challenged. Immigration law is famously complicated, but the
answer here turns out to be rather simple. The notice required to
render an in absentia removal lawful is the notice for the particular
hearing that was missed. And to have a chance to reopen removal
proceedings—and thus challenge an in absentia removal order—a
movant must show that he failed to receive the notice for the
hearing at which he was ordered removed. Contrary to the
petitioner’s argument, a defect in an earlier notice does not satisfy
this burden. We therefore deny the petition for review.
I.
In October 2003, 17-year-old Samuel Dacostagomez—along
with his mother, little sister, and two young cousins—crawled
under a border fence that separated Mexico from Arizona. But
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they did not make it far; United States Border Patrol agents soon
apprehended them walking north along a highway. That same day
they handed Dacostagomez a notice to appear. The notice charged
him as removable for being present in the country without
admission or parole, and ordered him to appear for removal
proceedings before the Phoenix Immigration Court at a date and
time “to be set.” See
8 U.S.C. § 1182(a)(6)(A)(i).
Agents also informed Dacostagomez’s mother that she
needed to appear before an immigration court “in a year” and
“bring all of the children” with her. When asked where they would
be until then, she told them that she and the children would live
with her sister in Rock Springs, Georgia. She gave the agents her
sister’s address, and the family made its way to Georgia.
Within two months, the Phoenix Immigration Court sent a
notice to the Rock Springs address setting Dacostagomez’s hearing
for November 2004—which would be a little more than a year after
his entry into the United States. But nine months before the
hearing, Dacostagomez’s family left Rock Springs for his
grandmother’s home in Dalton, Georgia. No one informed the
immigration court about the move. Three months later, they left
the grandmother’s home too—and again failed to tell the
immigration court.
Meanwhile, the aunt in Rock Springs was keeping track of
her own children’s removal proceedings, and she moved to transfer
her son’s case to Atlanta. The Phoenix Immigration Court added
Dacostagomez’s identification number to the motion. The motion
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4 Opinion of the Court 20-13576
was granted, and the location change meant that the government
needed to send another written notice, this one specifying the new
time and place of removal proceedings. See
id. § 1229(a)(2)(A).
The Atlanta Immigration Court sent that notice to
Dacostagomez at the most recent address they had on file for
him—his aunt’s home in Rock Springs. It was returned,
undelivered, to the immigration court. Undeterred, the
immigration court resent the notice, this time including the aunt’s
particular apartment number. To make up for the delivery failure,
the hearing was postponed for another month, to February 2005.
The new notice was also returned. And Dacostagomez—
who no longer lived at the Rock Springs address anyway—failed to
attend the hearing. Because Dacostagomez did not attend his
hearing, the presiding immigration judge ordered his removal. See
id. § 1229a(b)(5)(A).
Dacostagomez did not leave. In fact, he remained in the
United States for nearly a decade and a half before reappearing in
the immigration system in July 2019, when he moved to reopen his
removal proceedings. If the motion succeeded, his in absentia
removal order would be rescinded, and he would have another
chance to establish his right to remain in the country. See id.
§ 1229a(b)(5)(C).
Generally, any such motion must be filed within 180 days of
a removal order’s entry—a deadline that had long since expired.
Id. § 1229a(b)(5)(C)(i). But an alien can move to reopen his
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20-13576 Opinion of the Court 5
proceedings “at any time” if he “did not receive notice in
accordance with paragraph (1) or (2)” of § 1229(a). Id.
§ 1229a(b)(5)(C)(ii). And Dacostagomez had learned of a recent
Supreme Court decision—Pereira v. Sessions,
138 S. Ct. 2105
(2018). He argued that under Pereira he could not be removed,
because the notice to appear he received when apprehended on the
highway had not included the date and time of his initial hearing.
See
8 U.S.C. § 1229(a)(1)(G)(i); Pereira,
138 S. Ct. at 2113–14.
An immigration judge denied Dacostagomez’s motion to
reopen. The Board of Immigration Appeals affirmed that
judgment, concluding that his argument was foreclosed by its
decision in Matter of Pena-Mejia,
27 I. & N. Dec. 546 (BIA 2019).
There, the Board held that an immigration judge can enter—and
need not rescind—an in absentia removal order if “a written notice
containing the time and place of the hearing was provided either in
a notice to appear under [§ 1229(a)(1)] or in a subsequent notice of
the time and place of the hearing pursuant to [§ 1229(a)(2)].” Id. at
548. 1 This petition followed.
II.
Where, as here, the Board issues a decision without
adopting the immigration judge’s reasoning, we review only the
Board’s reasoning. See Thamotar v. U.S. Att’y Gen.,
1 F.4th 958,
1 After the Supreme Court’s decision in Niz-Chavez v. Garland,
141 S. Ct. 1474
(2021), the Board reaffirmed this holding. See Matter of Laparra,
28 I. & N.
Dec. 425, 431 (BIA 2022).
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6 Opinion of the Court 20-13576
969 (11th Cir. 2021). We review the Board’s denial of a motion to
reopen for an abuse of discretion, but review any underlying legal
conclusions de novo. Li v. U.S. Att’y Gen.,
488 F.3d 1371, 1374
(11th Cir. 2007).
III.
The Immigration and Nationality Act sets the rules and
procedures for removal decisions. See 8 U.S.C. § 1229a; see also id.
§§ 1225(b)–(c), 1228. The default process is extensive, and often
includes multiple hearings before an immigration judge. See id.
§ 1229a(a)(1), (3). An alien generally has a right to be present at any
and all of these removal hearings. See id. § 1229a(b)(2)(A)(ii). But
skipping a hearing does not strip the immigration court of its
power. In that circumstance an alien can be ordered removed “in
absentia”—if he received proper notice of the hearing. See id.
§ 1229a(b)(5)(A).
The question here is what kind of notice is sufficient for this
purpose. The Act provides for two different forms: an initial notice
to appear, and a notice of a change in the time or place of a hearing.
Id. § 1229(a)(1), (2). Shorthand for the former is “paragraph (1)”
notice, and for the latter “paragraph (2)” notice. But does in
absentia removal require a proper paragraph (1) notice to appear?
A correct paragraph (2) notice of a change in the time or place?
Both?
The answer is that in absentia removal is lawful so long as
the government provided notice for whichever hearing was
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20-13576 Opinion of the Court 7
missed, which means reopening is available if the notice for that
hearing was not provided. That is a commonsense result, to be
sure. But common sense does not drive the inquiry—the text of
the statute does. Happily, the two match up here.
A.
The statute we interpret provides that an alien may move to
reopen proceedings that led to an in absentia removal order if he
shows that he “did not receive notice in accordance with
paragraph (1) or (2) of section 1229(a).” Id. § 1229a(b)(5)(C)(ii).
Dacostagomez argues that this provision allows reopening if there
was any defective notice in his proceedings. In other words, he is
eligible for reopening unless he received proper notice under both
paragraphs (1) and (2).
The flaw in his argument starts with the word “or,” which
joins the relevant paragraphs. That conjunction is important—
Congress connected the two notice paragraphs with “or,” not
“and.” In doing so, it signaled that the two are alternatives and not
a linked pair. “The use of the disjunctive ‘or’” indicates
“alternatives and requires that those alternatives be treated
separately.” Rine v. Imagitas, Inc.,
590 F.3d 1215, 1224 (11th Cir.
2009) (quotation omitted). In contrast, “and,” in “its ordinary
sense,” indicates that the things it links are to be treated “jointly.”
Shaw v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pennsylvania,
605
F.3d 1250, 1254 (11th Cir. 2010) (quotation omitted and alteration
adopted). So by picking “or,” Congress did not treat these notices
as a complete set, where each needed to be received to support an
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8 Opinion of the Court 20-13576
in absentia removal order. See Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 120 (2012).
Even if the plain text of this one provision were all we had,
we would think that “or” means one or the other, not both. But
here we have more. The full context of the statute announces its
meaning—loud and clear. The reopening provision we consider
works in tandem with the removal provision that appears earlier in
the same statute. One specifies what notice is necessary to enter
an in absentia removal order in the first place, while the other keeps
that order in place unless an alien shows that he did not receive the
required notice. Because the provisions’ notice requirements
mirror one another, any insight about notice in the removal
provision can inform our interpretation of the reopening provision.
Looking at the removal provision, its text is specific about
what notice is necessary for in absentia removal, and how that
notice must be shown:
Any alien who, after written notice required under
paragraph (1) or (2) of section 1229(a) of this title has
been provided to the alien or the alien’s counsel of
record, does not attend a proceeding under this
section, shall be ordered removed in absentia if the
[government] establishes by clear, unequivocal, and
convincing evidence that the written notice was so
provided and that the alien is removable (as defined
in subsection (e)(2)).
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20-13576 Opinion of the Court 9
8 U.S.C. § 1229a(b)(5)(A) (emphasis added). 2 Here too, Congress
used “or” to separate the listed notices. Without the “not”
preceding the “or,” the statute’s meaning sharpens: the
government must show that one notice or the other was
provided—not both—to support an in absentia removal order.
From there, it follows that an alien need receive only one form of
notice to justify maintaining the in absentia removal order. It
would be nonsensical to invalidate an in absentia removal order
because two kinds of notice were not received when only one was
required in the first place.
We thus know that one notice can be enough for in absentia
removal. Logic suggests that the notice that must be received is
the notice for the particular hearing where in absentia removal is
ordered, and again the text of the statute directs the same
conclusion. For starters, the removal provision requires the
government to prove by “clear, unequivocal, and convincing
evidence that the written notice was” provided. Id. (emphasis
added). To trigger in absentia removal, then, the government
cannot identify just any notice. It must identify “the” notice that
was provided. That word does a lot of work here. When coupled
with the singular noun, “notice,” it describes a single, discrete
notice. See Niz-Chavez v. Garland,
141 S. Ct. 1474, 1483 (2021).
2 Because only “written notice” is relevant to the validity of in absentia
removal, contrary to what Dacostagomez suggests, any defect in oral notice
is immaterial.
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10 Opinion of the Court 20-13576
And it refers to a particular notice, one that is “definite” or
“previously specified by context.” Nielsen v. Preap,
139 S. Ct. 954,
965 (2019) (quotation omitted); see also The Chicago Manual of
Style §§ 5.70–.71 (17th ed. 2017). Here, that context is offered
earlier in the provision, where Congress specified which notice
must be provided: “written notice required under paragraph (1) or
(2).” 8 U.S.C. § 1229a(b)(5)(A).
Looking back to those provisions, we recall that
paragraph (1) provides for “a ‘notice to appear,’” which begins
removal proceedings and tells a person about, among other things,
the charges against him and the initial “time and place at which the
proceedings will be held.” Id. § 1229(a)(1);
8 C.F.R. § 1239.1(a).
Paragraph (2) notice is issued at a later point, if the time or place of
the proceedings changes, or if the proceedings extend to another
hearing. See Exec. Off. for Immigr. Rev., Uniform Docketing
System Manual, at III-1 to -2 (Feb. 2021). When “any” such
“change or postponement” in the proceedings’ time or place
occurs, paragraph (2) requires the government to give “a written
notice” specifying “the new time or place.”
8 U.S.C. § 1229(a)(2);
see also Uniform Docketing System Manual, at III-1 to -2, IV-5.
Which kind of notice is required—notice under
paragraph (1) or paragraph (2)—is thus tied to the nature of the
hearing. For the original hearing, the government must provide a
paragraph (1) notice to appear. But for any rescheduled hearing or
additional hearing to follow, paragraph (2) notice becomes
necessary. And for purposes of in absentia removal, the notice that
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matters is the notice for the hearing missed; an immigration judge
can order a person removed in absentia only if he did not “attend a
proceeding” after the government provided the required notice. 8
U.S.C. § 1229a(b)(5)(A). Likewise, that order can be rescinded on
finding that the notice specific to that hearing was improper. An
alien must show that he did not receive notice under the relevant
“paragraph”—“paragraph (1) or (2).” Id. § 1229a(b)(5)(C)
(emphasis added). That means reopening can happen when notice
was improper under a particular paragraph: the paragraph
requiring notice of the hearing where the alien was removed in
absentia.
All that to say, only one form of notice is required to render
an in absentia removal lawful, and that notice must be for the
hearing that was missed. Any other result would defy common
sense. It would also run headlong into a constitutional conflict.
The Fifth Amendment’s due process protections extend to aliens in
removal proceedings, which means they have a right to notice and
to an opportunity to be heard. Lapaix v. U.S. Att’y Gen.,
605 F.3d
1138, 1143 (11th Cir. 2010); see also Shaughnessy v. United States
ex rel. Mezei,
345 U.S. 206, 212 (1953) (“[A]liens who have once
passed through our gates, even illegally, may be expelled only after
proceedings conforming to traditional standards of fairness
encompassed in due process of law.”). And those rights would be
curbed if the government could order the removal of an alien for
failure to attend a hearing that he did not know was happening
because the government never told him about it.
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We see no reason to think that Congress prescribed a
process that conflicts with basic due process principles, and
therefore no reason to think that an in absentia removal order
would be immune from attack simply because an alien received
proper notice for an entirely different hearing. To be sure, the
opposite would lead to an equally absurd result—providing relief
after a perfectly noticed hearing because an alien did not receive
notice of an earlier hearing at which he was not ordered removed.
All markers thus point to the same answer: the Act allows
in absentia removal if an alien fails to attend a hearing after being
provided the written notice required for the hearing. And an alien
can move to reopen that hearing if he shows that the government
did not provide notice of it. 3
3 We note that, in reaching this holding, we disagree with the Ninth Circuit’s
interpretation of the in absentia removal provisions. In Singh v. Garland, that
court declined to give “or” its usual disjunctive reading and held that it did not
set forth alternative notices.
24 F.4th 1315, 1320 (9th Cir. 2022).
The court rejected the ordinary meaning of “or” for two reasons, both of
which we find unpersuasive. For one thing, the court reasoned that “there
can be no valid notice under paragraph (2) without valid notice under
paragraph (1).”
Id. at 1319. We disagree; a paragraph (2) notice can inform a
person of a “change or postponement in the time and place” of removal
proceedings even if the initial hearing information appeared in a follow-on
notice of hearing. See
8 U.S.C. § 1229(a)(2)(A). We also reject the Ninth
Circuit’s conclusion that “any reference to written notice is the ‘Notice to
Appear’ defined in paragraph (1),” and not the written notice in paragraph (2).
Singh, 24 F.4th at 1320. Section 1229(a)(2)(B) specifies that “a written notice
shall not be required under this paragraph”—paragraph (2)—if an alien fails to
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B.
Now for application of these rules. We agree with
Dacostagomez that, under Niz-Chavez v. Garland, his first notice
was incomplete; it omitted an initial hearing time. 141 S. Ct. at
1480; Pereira,
138 S. Ct. at 2113–14. 4 But even if he is right that the
flaw in his notice to appear means that he never received “notice
in accordance with paragraph (1),” that notice was not the one for
the hearing he missed. His removal proceedings were rescheduled
twice. Notices of the “new time or place” of those proceedings are
prescribed by paragraph (2) and were sent to Dacostagomez’s last
known address. Dacostagomez never received those notices—but
he also no longer lived there. Paragraph (2) explicitly attends to
this situation: if an alien is not in detention and failed to inform the
give the government an updated address.
8 U.S.C. § 1229(a)(2)(B) (emphasis
added). So “written notice” in § 1229(a) can refer to notices under both
paragraphs. Despite the Ninth Circuit’s conclusion to the contrary, we give
“or” its usual meaning and decide that, in this context, paragraph (1) and
paragraph (2) notices are alternatives.
4 Dacostagomez says that we should follow the Fifth Circuit’s example and,
upon concluding that the notice of hearing did not fix his defective notice to
appear under paragraph (1), remand his case to the Board for further
proceedings. See Rodriguez v. Garland,
15 F.4th 351, 355–56 (5th Cir. 2021).
The Board’s reasoning below and in Matter of Pena-Mejia, however, was that
a subsequent notice of hearing counts as a “notice required under” paragraph
(2)—not that it somehow satisfied paragraph (1). See 27 I. & N. Dec. at 548.
We need not address whether that reasoning was correct today because, under
our interpretation of the Act, the notice that matters is that for the hearing
missed.
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14 Opinion of the Court 20-13576
immigration court of any change in his address, “a written notice
shall not be required.”
8 U.S.C. § 1229(a)(2)(B). Likewise, “[n]o
written notice” is “required” before removing an alien in absentia
if the alien moved and failed to provide the government with his
new address.
Id. § 1229a(b)(5)(B).
Dacostagomez’s failure to tell the government where he had
moved not only prevented the government from giving him notice
of the February 2005 hearing but also, under paragraph (2),
released it from any obligation to do so. So despite the
government’s failure to successfully deliver that notice, it satisfied
its obligation “in accordance with” paragraph (2): no notice at all.
Dacostagomez therefore had no grounds on which to ask the
immigration judge to reopen the removal proceedings.
C.
Dacostagomez nonetheless contends that we should
remand his case because the immigration judge in Phoenix violated
his due process rights by changing the venue on his aunt’s motion,
not his own.5 For support he points to an agency regulation that
5 Dacostagomez also suggests that the Board did not adequately address this
claim. But the Board need not “address specifically each claim the petitioner
made.” Seck v. U.S. Att’y Gen.,
663 F.3d 1356, 1364 (11th Cir. 2011) (quotation
omitted). Rather, the Board must simply “consider the issues raised and
announce its decision in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely reacted.”
Id. (quotation
omitted). And Dacostagomez makes no effort to show us how the Board
failed to do so. Instead, he simply makes conclusory assertions that the
Board’s consideration was inadequate. By failing to support those assertions
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20-13576 Opinion of the Court 15
allows an immigration judge to change venue “only upon motion
by one of the parties.”
8 C.F.R. § 1003.20(b). Violating that
regulation, he says, deprived him of due process.
Under this Circuit’s precedent, however, a mere irregularity
in agency procedure does not deny a person due process. See
ACLU of Florida, Inc. v. Miami-Dade Cnty. Sch. Bd.,
557 F.3d 1177,
1229 (11th Cir. 2009); see also United Student Aid Funds, Inc. v.
Espinosa,
559 U.S. 260, 272 (2010). Something more is needed to
create a constitutional violation—the procedural error must deny
a person adequate notice or an opportunity to be heard. See ACLU
of Florida,
557 F.3d at 1229. Here, Dacostagomez received both
when the immigration court tried to tell him that the venue had
changed in a way “reasonably calculated” to ensure that
information reached him: a written notice mailed to his last-known
address. Dominguez v. U.S. Att’y Gen.,
284 F.3d 1258, 1259–61
(11th Cir. 2002) (quotation omitted). His due process argument
fails.
* * *
An alien is eligible for a second chance at removal
proceedings if he never received the notice telling him to attend
the hearing he missed. But along with that right comes a
responsibility; he cannot benefit from dodging a hearing or failing
with argument—or even any supporting authority—he has abandoned this
contention. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681 (11th
Cir. 2014).
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16 Opinion of the Court 20-13576
to keep the government informed of his current address.
Dacostagomez did not tell the government when he moved, and
he let his removal proceedings lie dormant for nearly fifteen years.
A flaw in the initial notice handed to him does not entitle him, years
later, to another chance at avoiding removal. Dacostagomez’s
petition for review is therefore DENIED.
