NGUYEN v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-04-21No. No. 20-70090

Summary · law.co

Holding. The petition for review is denied. The Board of Immigration Appeals did not abuse its discretion in dismissing Nguyen's appeal of the denial of her motion to reopen proceedings and rescind the removal order.

Hoa Thi An Nguyen, a Vietnamese national, sought court review of an immigration board's decision to dismiss her appeal. She had challenged an immigration judge's refusal to reopen her removal proceedings and set aside a removal order that was issued in her absence. Nguyen argued she never received proper notice of her hearing because she had moved from Washington to California without updating her address with immigration authorities.

The court examined whether the immigration board abused its discretion in rejecting Nguyen's motion. The court found no abuse of discretion because Nguyen failed to notify the agency of her address change, the hearing notices were properly mailed to her last known address, and she did not provide sufficient evidence to overcome the legal presumption that mail sent to that address was delivered. The court also rejected her argument that a third party's application on her behalf had effectively updated her address with the agency. Additionally, the court determined that Nguyen's due process rights were not violated, as the government fulfilled its constitutional obligations by mailing notice to the address she had provided.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether the immigration board abused its discretion in denying a motion to reopen removal proceedings based on lack of notice
Whether proper service of notice was achieved when mailed to the petitioner's last known address despite an unreported address change
Whether a third party's agency application can constitute constructive notice of address change to immigration authorities
Whether due process requirements were satisfied by mailing notice to the last address provided

Procedural posture

Nguyen petitioned for review of the Board of Immigration Appeals' dismissal of her appeal challenging an immigration judge's denial of her motion to reopen and rescind a removal order entered in absentia.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Hoa Thi An Nguyen (“Nguyen”), a native and citizen of Vietnam, petitions for review of the Board of Immigration Appeals’ (“BIAs”) dismissal of her appeal challenging the immigration judges denial of her motion to reopen proceedings and rescind a removal order entered in absentia. We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.

We review the denial of a motion to reopen for abuse of discretion. See, e.g., Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014) (citing Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005)). We must uphold the decision of the BIA unless it “acted arbitrarily, irrationally, or contrary to law.” Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir. 2003) (quoting Celis-Castellano v. Ashcroft, 298 F.3d 888, 891 (9th Cir. 2002)). We review the BIAs legal conclusions de novo and its factual findings for substantial evidence. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (citing Bhasin, 423 F.3d at 983).

Because the facts are known to the parties, we do not repeat them here except as necessary to explain our decision.

The BIA did not abuse its discretion in dismissing Nguyens appeal of the denial of her motion to reopen proceedings and rescind the removal order, which she based on lack of notice. Nguyen did not inform the United States Citizenship and Immigration Services (“USCIS”) of an address change from Washington to California; the notice to appear and hearing notices were sent by regular mail to the last address that she provided; and the BIA reasonably concluded that she did not present sufficient evidence to rebut the weaker presumption of delivery. See Sembiring v. Gonzales, 499 F.3d 981, 988-89 (9th Cir. 2007) (identifying factors relevant to evaluating a petitioners rebuttal of the presumption of effective service). Nor has Nguyen provided a legal basis to conclude that a third partys application to the agency on her behalf amounted to a global update of her address of record with the USCIS or otherwise provided constructive knowledge that she had moved to San Jose, California.

For the same reasons, we also reject Nguyens due process argument. See Dobrota v. INS, 311 F.3d 1206, 1211 (9th Cir. 2002) (holding that the government satisfies due process requirements by mailing notice to the last address that the non-citizen provided).

PETITION DENIED.