Karina Santiago-Duran v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARINA SANTIAGO-DURAN, No. 19-71196
Petitioner, Agency No. A077-414-592
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 15, 2021
Pasadena, California
Before: M. SMITH and IKUTA, Circuit Judges, and STEELE,** District Judge.
Karina Santiago-Duran, a native and citizen of Mexico, petitions for review
of an April 17, 2019 decision of the Board of Immigration Appeals (BIA) which
dismissed her appeal from an Immigration Judge’s (IJ’s) denial of her motion to
reopen the in absentia removal order of January 14, 1999. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John E. Steele, United States District Judge for the
Middle District of Florida, sitting by designation.
under 8 U.S.C. § 1252(a)(1). Mata v. Lynch, 576 US 143, 147-48 (2015). Because
the parties are familiar with the facts, we do not recount them here, except as
necessary to provide context to our ruling. We deny the petition for review.
I.
On October 27, 1998, Santiago-Duran applied for admission to the United
States at the San Ysidro, California port-of-entry and was determined to be
inadmissible. A Form I-213 stated that Santiago-Duran provided “Inglewood, CA”
as her United States address and a specific address in Nayarit, Mexico as her
permanent residence. Santiago-Duran was sent back to Mexico under expedited
removal procedures pursuant to 8 U.S.C. § 1225(b)(1), and was prohibited from
entering the United States for five years.
Nonetheless, on October 28, 1998, Santiago-Duran applied for admission to
the United States at the Calexico port-of-entry, where it was determined she did not
possess proper documentation to allow legal admission to the United States. A Form
I-213 stated that Santiago-Duran provided a specific address in Inglewood,
California as her United States address and did not claim any permanent address.
Santiago-Duran was personally served with a Notice to Appear (NTA) charging her
with removability under 8 U.S.C. § 1182(a)(9)(A)(i) for entering the United States
within five years of her October 27, 1998 removal without obtaining prior consent.
The NTA listed her current residence as a specific address in Sonora, Mexicali, and
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ordered her to appear for a removal hearing at the Imperial Immigration Court,
although the date and time of the appearance were blank. Santiago-Duran was
returned to Mexico to await her immigration hearing. On November 20, 1998, a
hearing notice for a January 14, 1999 hearing was sent to Santiago-Duran at an
address in Sonora, Mexico. Santiago-Duran failed to appear for her scheduled
hearing, and the IJ ordered her removed in absentia to Mexico.
On August 3, 2017, petitioner filed a motion to reopen her proceedings,
asserting a lack of notice of the hearing because the notice was sent to the wrong
address. The motion was not accompanied by an affidavit, and Santiago-Duran has
never filed an affidavit or declaration as to her address(es). On November 30, 2017
the IJ denied the motion to reopen.
Santiago-Duran appealed the IJ’s denial to the BIA, raising the lack of notice
argument and adding an argument that the IJ lacked jurisdiction to conduct a removal
hearing because the proceedings against her should have been terminated since she
was neither taken into physical custody nor paroled into the United States. The BIA
dismissed the appeal, ruling against Santiago-Duran on both issues.
II.
On appeal, Santiago-Duran asserts that the BIA abused its discretion by
failing to reopen the removal hearing. Santiago-Duran asserts that she was entitled
to a notice of the hearing, but received none because the Notice of Hearing was not
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sent to her proper address. Santiago-Duran also asserts that the BIA lacked
jurisdiction because the removal proceedings should have been terminated since she
had neither been detained nor paroled into the United States, but had been released
to Mexico.
“We review the Board's denial of a motion to reopen for abuse of discretion,”
which requires that the Board's decision was “arbitrary, irrational, or contrary to
law.” Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014) (citations omitted). “We
review de novo the BIA's determination of questions of law, except to the extent that
deference is owed to its interpretation of the governing statutes and regulations.”
Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir. 2006).
The BIA did not abuse its discretion in denying the motion to reopen based
on the notice issue. As we have previously stated, “the statutes require aliens to (1)
provide an address and (2) tell the government if they move, and the regulation
demands that they also (3) tell the government if it puts the wrong address on the
NTA.” Velasquez-Escovar v. Holder, 768 F.3d 1000, 1005 (9th Cir. 2014). The
regulation fits the situation here. In the course of two consecutive days, Santiago-
Duran provided several different addresses to immigration officials. The address on
the NTA, which was personally served on Santiago-Duran, was different than the
addresses contained on the Form I-213s. Santiago-Duran never advised anyone that
the address was incorrect, despite the explanation of her obligations being given to
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her in Spanish. “The regulation—and common sense—put the burden on the alien
to inform the immigration court that the government got it wrong.” Velasquez-
Escovar, 768 F.3d at 1005. And unlike Velasquez-Escovar, the BIA invoked the
applicable regulation here by citing to Velasquez-Escovar. We can therefore uphold
the BIA on this ground. Cf. id. at 1004-05.
The BIA is not required to terminate the removal proceedings in the
circumstances of this case. An alien arriving by land from a foreign territory
contiguous to the United States may be returned to that territory pending removal
proceedings. 8 U.S.C. § 1225(b)(2)(C); 8 C.F.R. § 235.3(d). Therefore, the IJ and
the BIA maintained jurisdiction over the removal proceedings after Santiago-Duran
was returned to Mexico.
PETITION DENIED.
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