In this in absentia removal case, Luna-Garcia, a Guatemalan citizen, petitioned for review of a Board of Immigration Appeals order dismissing her appeal of the denial of her motion to reopen. The Fifth Circuit, in a published opinion written by Judge Elrod and joined by Judges Jolly and Willett, denied Luna-Garcia's petition.
This case extends the rule announced Ramos-Portillo v. Barr, 919 F.3d 955 (5th Cir. 2019), a case decided by the same panel with Judge Elrod writing, no less. Because I covered Ramos-Portillo in another post, I will assume basic familiarity with that decision here.
Luna-Garcia, Like Ramos-Portillo before her, argued that her failure to appear at her removal hearing should be excused because she didn't receive adequate notice under the statute. Luna-Garcia had provided immigration officials with a Guatemalan address. Immigration officials provided her written notice that she needed to provide the immigration court with a U.S. address. Luna-Garcia never followed up, failed to appear, and, as a result, the Immigration Judge ordered her removed in absentia. The BIA affirmed, and Luna-Garcia petitioned for review.
For similar reasons to those discussed in Ramos-Portillo, the Fifth Circuit held that Luna-Garcia's failure to update her address with the immigration court foreclosed her inadequate-notice argument:
Luna-Garcia argues that because § 1229(a)(1)(F)(i) does not specify whether an alien must provide a United States or a foreign address, the alien may satisfy her obligation to provide an address by providing a foreign address. However, we rejected a similarly restrictive interpretation in [Ramos-Portillo], in which we held that the former version of the statute with virtually identical language, 8 U.S.C. § 1252b(a)(1)(F)(i) (repealed 1996), required a United States address. Like its predecessor, the current version, § 1229(a)(1)(F)(i), “requires not just any ‘address’ or any ‘address … at which an alien may be contacted.’ ” Ramos-Portillo, 919 F.3d at 960. Rather, § 1229(a)(1)(F)(i) requires “an address … at which the alien may be contacted respecting proceedings under [8 U.S.C. § 1229a]”—that is, removal proceedings. . . . To the extent § 1229(a)(1)(F)(i) concerns notifying an alien who is living in the United States and subject to removal from the United States, the alien must provide a United States address to satisfy the requirements of § 1229(a)(1)(F)(i). See id. (observing the same for aliens in the United States who are subject to deportation from the United States under the previous version of the statute).
In sum, § 1229(a)(1)(F)(i)—like its predecessor, § 1252b(a)(1)(F)(i)—requires an alien who is physically in the United States and subject to removal from the United States to provide a United States address to receive notice by mail. Applying this interpretation of § 1229(a)(1)(F)(i), we hold that the BIA did not abuse its discretion in dismissing Luna-Garcia’s appeal. The BIA properly rejected the argument that a Guatemalan address was sufficient.
The Court also rejected Luna-Garcia's reliance on BIA decisions interpreting section 1229a(b)(5)(E) to support her argument that she met her statutory obligation by providing the government her Guatemalan address. The Court explained that section 1229a(b)(5)(E), which applies to "any alien who remains in a contiguous foreign country," didn't apply to Luna-Garcia because (1) Guatemala isn't a contiguous foreign country and (2) section 1229a(b)(5)(E) concerns removal for aliens not yet in the United States, and therefore "has little bearing on the requirement that an alien who will remain in the United States during her proceedings provide a United States address to receive notice by mail."
Emphasizing that "[i]n this circuit, alternative holdings are binding precedent and not obiter dicta,” the Court proceeded to explain two alternative bases for rejecting Luna-Garcia's petition. The Court acknowledged that it "may usually only affirm the BIA on the basis of its stated rationale for ordering an alien removed from the United States," but explained that there is an exception to that rule where, even assuming the Court's first rationale were erroneous, there is "no realistic possibility that the BIA would reach a different conclusion on remand." This calls to mind the Chenery I doctrine: that a court may only uphold agency action based on the agency's own stated rationale for that action.
The first alternative basis for the Court's holding was that Luna-Garcia's Guatemala address was not "an address at which the alien may be contacted as required under § 1229(a)(1)(F)(i)." That was so, the Court explained, because the record showed that Luna-Garcia had no plans to return to Guatemala, meaning she couldn't have been contacted there. The Court's second alternative basis for rejecting Luna-Garcia's petition was premised on agency regulations mandating that when an alien's address doesn't appear on the alien's notice to appear, it is the alien's responsibility to provide the Immigration Court with written notice of an address where the alien can be contacted. As a result, even assuming Luna-Garcia had provided a valid mailing address for purposes of section 1229(a)(1)(F)(i), it was her responsibility to follow with an address once she was released. Her failure to do so was fatal to her petition as well.
Finally, the Court rejected Luna-Garcia's claim that the BIA deprived her of due process (1) by ordering her removed in absentia and without notice and (2) by requiring a United States address without first informing her that she must provide a United States address. Luna Garcia's argument failed, the Court explained, because Luna-Garcia's lack of notice was the result of her own neglect of her obligations to keep the immigration court apprised of her current mailing address--not any bad faith on the part of the government. Her second argument failed because her notice to appear "gave her ample warning" of her duty to provide the immigration court with a United States address.