Ontiveros Lozano v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 4, 2023
• Docket: 22-1468
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RAFAELA ONTIVEROS LOZANO; JOSE No. 22-1468 MIGUEL QUINTANA Agency Nos. ONTIVEROS; ABRIL BELEN PEDRIZCO A215-818-989 ONTIVEROS, A215-818-990 A215-818-991 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted November 14, 2023 San Jose, California

Before: GRABER, PAEZ, and FRIEDLAND, Circuit Judges. Concurrence by Judge FRIEDLAND.

Petitioner Rafaela Ontiveros Lozano (“Ontiveros Lozano” or “Lead

Petitioner”) and her two children, Jose Miguel Quintana Ontiveros and Abril Belen

Pedrizco Ontiveros (collectively “Petitioners”), are natives and citizens of Mexico.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. They timely seek review of the Board of Immigration Appeals’ (“BIA”) orders

affirming the immigration judge’s (“IJ”) denial of their motion to reopen their

removal proceedings and rescind their in absentia removal orders. Reviewing legal

questions de novo and otherwise reviewing for abuse of discretion, Cano-Merida v.

INS, 311 F.3d 960, 964 (9th Cir. 2002), we grant the petition.

An in absentia removal order may be rescinded if the petitioner demonstrates

that she did not receive notice to appear or notice of the hearing as provided by 8

U.S.C. § 1229(a)(1)–(2). See 8 U.S.C. § 1229a(b)(5)(C)(ii). Delivery of a notice

by regular mail creates a weak presumption of delivery, “and less should be

required to rebut such a presumption.” Salta v. INS, 314 F.3d 1076, 1079 (9th Cir.

2002). Lead Petitioner attested in a sworn affidavit that neither she nor her

children received the notices to appear, the notice of hearing (“NOH”), or the in

absentia removal orders, despite constantly checking the mail. “In general, in

assessing whether an alien has made the requisite prima facie showing in support

of reopening, facts presented in affidavits supporting a motion to reopen must be

accepted as true unless inherently unbelievable.” See Perez-Portillo v. Garland, 56

F.4th 788, 795 (9th Cir. 2022) (citation and internal quotation marks omitted). The

affidavit here is not inherently unbelievable. The NOH that contained a

rescheduled hearing date was “return[ed] to sender” on October 2, 2019, well

before the date of the reset hearing. Thus, the BIA knew that Petitioners had not

2 22-1468 received the NOH. That fact corroborates Ontiveros Lozano’s affidavit. The BIA

erred by requiring additional corroboration and improperly discounting Ontiveros

Lozano’s affidavit and therefore abused its discretion in applying Matter of M-R-

A-, 24 I&N Dec. 665 (BIA 2008).

Petitioners acted diligently upon learning of the in absentia orders. Lead

Petitioner swore that she constantly checked the mail for any information about her

and her children’s cases, asked around to see if anyone had any information, and

did not learn of the removal orders until after they had been entered in November

2019, at which time she quickly retained counsel and moved to reopen the case.

Because Lead Petitioner credibly stated that she did not receive the NOH,

the BIA abused its discretion in declining to rescind the in absentia orders under 8

U.S.C. § 1229a(b)(5)(C). We remand for a new hearing on Petitioners’ asylum

applications.1

PETITION GRANTED and REMANDED.

1 We need not and do not address Petitioners’ argument regarding sua sponte reopening.

3 22-1468 FILED DEC 4 2023 Ontiveros Lozano v. Garland, 22-1468 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FRIEDLAND, Circuit Judge, with whom Circuit Judge PAEZ joins, concurring:

When the date of a removal hearing changes, the Government is required to

provide a Notice of Hearing (“NOH”) containing the new date and time. 8 U.S.C.

§ 1229(a)(2)(A). If a person fails to appear for her hearing, she shall be removed

in absentia only “if the Service establishes by clear, unequivocal, and convincing

evidence that the written notice [of the hearing] was so provided.” Id.

§ 1229a(b)(5)(A).

Here, when Ontiveros Lozano’s removal hearing date was moved up, the

Government mailed her an NOH, but it was returned as undeliverable over a month

before her scheduled hearing. Ontiveros Lozano therefore indisputably did not

receive the required notice, and the Government knew this. Yet the Government

requested and received an in absentia removal order against Ontiveros Lozano

when she did not appear for her scheduled hearing. In doing so, the Government

violated the explicit statutory requirement in § 1229a(b)(5)(A). The Government

now argues that Ontiveros Lozano’s removal proceedings should not be reopened

because she was not diligent in discovering the Government’s conduct and because

she has forfeited her challenge to the entry of the in absentia removal order. The

Government’s duty should be to seek justice, not to deport people at any cost. In

my view, it lost sight of that duty here.