Robles-Carmona v. Bondi

• Court: Court of Appeals for the Second Circuit
• Decided: April 18, 2025
• Docket: 22-6183
• Status: Unpublished

Opinion

22-6183 Robles-Carmona v. Bondi BIA Dodd, IJ A203 810 302/457 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th day of April, two thousand twenty-five.

PRESENT: SUSAN L. CARNEY, RICHARD J. SULLIVAN, MYRNA PÉREZ, Circuit Judges. _____________________________________

ELSA ANGELINA ROBLES-CARMONA, ISMER DAVID ESPINAL-ROBLES,

Petitioners,

v. No. 22-6183 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL,

Respondent. _____________________________________ FOR PETITIONERS: Joshua E. Bardavid, Bardavid Law, P.C., New York, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Sheri R. Glaser, Senior Litigation Counsel; Yanal H. Yousef, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is GRANTED.

Petitioners Elsa Angelina Robles-Carmona and her minor son, natives and

citizens of Honduras, seek review of a decision of the BIA affirming a decision of

an Immigration Judge (“IJ”) denying their motion to rescind the removal orders

entered in absentia after they failed to appear for a hearing. In re Elsa Angelina

Robles-Carmona, Ismer David Espinal-Robles, Nos. A203 810 302/457 (B.I.A. Mar. 24,

2022), aff’g Nos. A203 810 302/457 (Immigr. Ct. N.Y.C. Oct. 6, 2020). We assume

the parties’ familiarity with the underlying facts and procedural history.

When the BIA adopts the IJ’s reasoning and offers additional analysis, we

consider both the IJ’s and BIA’s decisions “for the sake of completeness.”

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review

2 the agency’s denial of a motion to rescind a removal order entered in absentia for

abuse of discretion. See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). The

agency abuses its discretion when its “decision provides no rational explanation,

inexplicably departs from established policies, is devoid of any reasoning, or

contains only summary or conclusory statements; that is to say, where the [agency]

has acted in an arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Just.,

265 F.3d 83, 93 (2d Cir. 2001) (citations omitted).

An alien who fails to appear at her removal proceedings after being

provided with written notice “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.” 8 U.S.C.

§ 1229a(b)(5)(A). The agency may rescind such a removal order, as relevant here,

“upon a motion to reopen filed at any time if the alien demonstrates that the alien

did not receive notice in accordance with paragraph (1) or (2) of section 1229(a)”

of the Immigration and Nationality Act, which sets forth the requirements of a

notice to appear. Id. § 1229a(b)(5)(C)(ii); see also 8 C.F.R. § 1003.23(b)(4)(ii).

We remand for the agency to further consider the record. First, the IJ

misinterpreted the law governing motions to rescind in absentia removal orders.

3 Specifically, the IJ found “dispositive” the fact that “the [immigration] court sent

the notice of hearing to the address indicated on the [notice to appear].” Certified

Admin. Rec. (“CAR”) at 38. This is incorrect. “[W]hen considering the motion

to reopen, the central issue no longer is whether the notice was properly mailed

(as it is for the purpose of initially entering the in absentia order), but rather

whether the alien actually received the notice.” Alrefae, 471 F.3d at 359 (internal

quotation marks omitted) (quoting Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir. 2006)).

Relatedly, the IJ deemed Robles-Carmona’s affidavit, in which she asserted

that she continued to check her mail at the address the hearing notice was sent to

and never received the notice, irrelevant. CAR at 38. While we have held that

“a presumption of receipt is proper so long as the record establishes that the notice

was accurately addressed and mailed in accordance with normal office

procedures,” Lopes, 468 F.3d at 85, this “slight presumption . . . in the context of

regular mail” may be overcome with evidence of non-receipt of the notice, Silva-

Carvalho Lopes v. Mukasey, 517 F.3d 156, 160 (2d Cir. 2008). While the IJ was not

required to find Robles-Carmona’s affidavit sufficient to rebut the presumption of

delivery, the affidavit was relevant to that inquiry, and the IJ should have

considered it and explained why it was insufficient. See Alrefae, 471 F.3d at 360

4 (concluding that the “IJ erred in rejecting [petitioner’s] claim of nonreceipt by

failing to explain why [he] had not rebutted the presumption of receipt”).

The BIA’s decision did not fully cure these errors. While the BIA

acknowledged that the correct inquiry was whether Robles-Carmona received the

hearing notice, we cannot conclude that it considered all relevant evidence before

affirming the IJ’s ruling. The BIA stated that the IJ “considered the evidence of

record submitted by [Robles-Carmona], including [her] affidavit,” CAR at 4, but

as noted above, the IJ found the affidavit irrelevant. And neither the IJ nor the

BIA considered other factors relevant to whether Robles-Carmona had rebutted

the presumption of delivery, such as her assertions that she had attended all check-

ins with Immigration and Customs Enforcement (“ICE”), diligently and promptly

moved to rescind, and intended to apply for asylum. See Lopes, 468 F.3d at 85–86

(“Although an affidavit of non-receipt might be insufficient by itself to rebut the

presumption, it does raise a factual issue that the [agency] must resolve by taking

account of all relevant evidence . . . .”). “[T]he BIA must consider all of the

petitioner’s evidence (circumstantial or otherwise) in a practical fashion, guided

by common sense, to determine whether the slight presumption of receipt of

regular mail has more probably than not been overcome.” Silva-Carvalho Lopes,

5 517 F.3d at 160.

We express no opinion on the merits of Robles-Carmona’s motion to

rescind, but remand for the agency to consider all relevant evidence, including

circumstantial evidence, offered to rebut the presumption of receipt. See Matter

of M-R-A-, 24 I. & N. Dec. 665, 674 (B.I.A. 2008) (listing “variety of factors” to be

considered in determining a motion to rescind); see also Lopes, 468 F.3d at 85–86

(remanding, notwithstanding petitioner’s “bare [affidavit] claim of non-receipt,”

because agency “failed to consider three [circumstantial] facts that might weigh in

favor of” petitioner (internal quotation marks omitted)). 1

For the foregoing reasons, the petition for review is GRANTED and the case

is REMANDED for further proceedings. All pending motions and applications

are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

1 We have previously allowed that “aliens who fail to provide a written update of a change of address are deemed to have constructively received notice provided in accordance with the requirements of 8 U.S.C. § 1229(a).” Maghradze v. Gonzales, 462 F.3d 150, 154 (2d Cir. 2006). Because the BIA did not rest its decision on this ground, we have no occasion to consider its potential application to this case. 6