Category: Matter of NIVELO CARDENAS

Matter of NIVELO CARDENAS, 28 I&N Dec. 68 (BIA 2020)

The Board of Immigration Appeals has issued a decision in the Matter of NIVELO CARDENAS, 28 I&N Dec. 68 (BIA 2020)

(1) Where an alien who has been personally served with a notice to appear advising him of the requirement to notify the Immigration Court of his correct address fails to do so and is ordered removed in absentia for failure to appear for the scheduled hearing, reopening of the proceedings to rescind his order of removal based on a lack of proper notice is not warranted under section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(ii) (2018).
(2) The respondent’s failure to update his address for over 18 years indicates a lack of due diligence and may properly be found to undermine the veracity of his claim that he has taken actions to maintain his rights in the underlying removal proceedings.

BIA PANEL: MALPHRUS and HUNSUCKER, Appellate Immigration Judges; GEMOETS, Temporary Appellate Immigration Judge.

OPINION BY: HUNSUCKER, Appellate Immigration Judge:

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So, let’s get this a straight. The DHS has the burden of proof on notice and removability in an in absentia case. The BIA has previously said that writing some street in Tijuana, Mexico is a sufficient address for DHS to provide EOIR as part of the “Remain in Mexico” program. Matter of J.J. RODRIGUEZ, 27 I&N Dec. 762 (BIA 2020). https://immigrationcourtside.com/2020/01/31/bia-any-ol-notice-is-good-enough-for-endangered-asylum-seekers-orbited-to-mexico-beyond-matter-of-j-j-rodriguez-how-judges-at-all-levels-are-abandoning-the-rule-of-law-enab/

I call this the “good enough for Government work” approach. So, if the Government is basically allowed to get away with minimal compliance with address notice, one would expect an equally lenient approach for foreign nationals, who, after all, have far less control over the system and far fewer resources than the Government. No way!

When an individual apparently writes a “b” instead of an “h” (notice any similarity?) in a U.S. Street address, it’s “tough noogies.” That’s even where there is some evidence to suggest that the DHS actually had the correct address somewhere in their files. Normally, it would be standard practice for an Immigration Judge to check the address with DHS before entering an in abstentia order. Additionally, the BIA surmised that the some unknown individual at the incorrect address must have received and rejected the letter.

That’s not to mention the practical reality that even if the respondent had corrected his address using the proper form, there is little chance of it actually getting in the Court’s file in a timely manner. I used to marvel at the piles of unfiled address change forms I witnessed at various times during my EOIR career.

I’d also bet that it would have taken less time and effort to reopen this case and give this respondent a merits hearing than it took to deny the MTR, have it appealed to the BIA, and make it a precedent. There was a time when EOIR actually viewed its function as providing due process hearings. Now, the idea is to use as many gimmicks as possible to avoid fear hearings and produce numbers.

In other words, Billy the Bigot’s BIA will do whatever is necessary to assist their “partners” (actually “superiors”) at DHS to rack up removal orders. Because, foreign nationals are “numbers” and “stats,” not humans. And if you can do it “in absentia” — that is without any real hearing at all — so much the better.

PWS

08-05-20