Elida Franco-Moreno v. Merrick B. Garland ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-2935
___________________________
Elida De Los Angeles Franco-Moreno; Robin Wilfredo Rivera-Franco
Petitioners
v.
Merrick B. Garland, Attorney General of the United States 1
Respondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: March 11, 2021
Filed: March 16, 2021
[Unpublished]
____________
Before BENTON, MELLOY, and KELLY, Circuit Judges.
____________
PER CURIAM.
Salvadoran citizens Elida De Los Angeles Franco-Moreno and her minor
child, Robin Wilfredo Rivera-Franco, petition for review of an order of the Board of
Immigration Appeals (BIA), which upheld an immigration judge’s (IJ’s) decision
1
Merrick B. Garland is serving as Attorney General of the United States, and
is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c).
denying their motion to reopen removal proceedings and rescind an order of removal
entered in absentia. Having jurisdiction under 8 U.S.C. § 1252, this court grants the
petition and remands the case to the BIA for further proceedings consistent with this
opinion.
Petitioners entered the United States without inspection in December 2018.
They were apprehended by immigration authorities and were personally served with
Notices to Appear advising them that a removal hearing would be set. Upon release
from United States Immigration and Customs Enforcement (ICE) custody on their
own recognizance, Petitioners provided authorities with a temporary mailing
address. The record indicates that a Notice of Hearing (NOH) was sent to Petitioners
by regular mail at the address they provided, advising that a hearing had been
scheduled in immigration court for September 18, 2019. Petitioners claim they never
received this notice. The IJ held Petitioners’ removal hearing in absentia and ordered
them removed.
In November, Petitioners retained counsel and filed a motion to reopen and
rescind the removal order, arguing that they did not receive the NOH. Franco-
Moreno submitted an affidavit stating that she and Rivera-Franco were living with
her sister, Lorena; the address she had provided to ICE belonged to Lorena’s friends;
she and Lorena regularly checked the mailbox at that address, and did not receive
the NOH; Franco-Moreno had appeared for numerous “immigration check-ins” with
ICE between December 13, 2018, and September 24, 2019; and she had not been
aware of the in absentia removal order until counsel discovered it. Lorena submitted
an affidavit corroborating the fact that no mail addressed to Franco-Moreno was
received at the address on file. Franco-Moreno also submitted an application for
asylum, withholding of removal, and protection under the Convention Against
Torture.
The IJ denied the motion to reopen and rescind, finding that the evidence was
insufficient to show that the NOH was not delivered. The BIA affirmed the decision
of the IJ, concluding that Petitioners had not overcome the presumption that notice
-2-
was properly delivered, as they never lived at the address of record, there were no
affidavits from anyone who lived at the address of record, and Franco-Moreno did
not have a “demonstrated history” of appearing at immigration hearings.
This court reviews legal questions de novo, and denials of motions to reopen
for abuse of discretion. See Diaz v. Lynch, 824 F.3d 758, 760 (8th Cir. 2016). The
BIA abuses its discretion when it gives no rational explanation for its decision,
departs from its established policies without explanation, relies on impermissible
factors or legal error, or ignores or distorts the record evidence. Id. Where the BIA
adopts the IJ’s decision and adds its own reasoning, both decisions are subject to this
court’s review. See De Castro-Gutierrez v. Holder, 713 F.3d 375, 379 (8th Cir.
2013).
This court concludes that the BIA abused its discretion by applying a
heightened evidentiary standard and disregarding record evidence in concluding
Petitioners failed to overcome the presumption of delivery of the NOH. In
determining whether a noncitizen has overcome the presumption of delivery by
regular mail, the agency considers (1) the noncitizen’s affidavit; (2) affidavits from
family members or others with personal knowledge of whether notice was received;
(3) the noncitizen’s due diligence, after learning of the in absentia order, in seeking
to redress the situation; (4) prior applications for relief, demonstrating the noncitizen
had an incentive to appear, and any prima facie evidence in the record or the
respondent’s motion of statutory eligibility for relief; (5) previous attendance at
immigration hearings, if applicable; and (6) any other evidence indicating possible
nonreceipt of notice. See Diaz, 824 F.3d at 760 (citing Matter of M-R-A-, 24 I. & N.
Dec. 665, 674 (BIA 2008)); see also Ghounem v. Ashcroft, 378 F.3d 740, 744-45
(8th Cir. 2004) (while a strong presumption of effective delivery is appropriate
where service is made by certified mail, a weaker presumption and lesser evidentiary
requirements are appropriate where service is by regular mail). Petitioners provided
two affidavits, sought to redress the situation by moving to reopen proceedings
shortly after the order of removal was entered, applied for relief and protection for
removal, had no occasion to appear for any prior immigration hearings, and regularly
-3-
attended immigration appointments both before and after the removal order was
entered. Considering this evidence, this court concludes that remand is necessary so
that the agency may consider all relevant evidence Petitioners proffered—both
favorable and unfavorable—under the weaker evidentiary standard applied in cases
where notice has been delivered by regular mail.
The petition for review is granted, the decision of the BIA is vacated, and the
case is remanded for further proceedings.
______________________________
-4-