Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Martinez v. Barr

United States Court of Appeals, Ninth Circuit

October 30, 2019

Celia Diaz Martinez, Petitioner,
v.
William P. Barr, Attorney General, Respondent. Celia Diaz Martinez, AKA Celia Diaz, AKA Celia Diaz Martinez, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Argued and Submitted April 10, 2019 Pasadena, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A073-948-023

          Kathryn Marie Davis (argued), Supervising Attorney; Marcel Budiono (argued) and Octavio Velarde (argued), Certified Law Students; U.C. Irvine School of Law, Pasadena, California; Peter R. Afrasiabi, One LLP, Newport Beach, California; for Petitioner.

          Sherease Rosalyn Pratt (argued), Senior Litigation Counsel; Anthony P. Nicastro, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Richard A. Paez and Richard R. Clifton, Circuit Judges, and Gary S. Katzmann, [*] Judge.

         SUMMARY [**]

         Immigration

         Granting Celia Diaz Martinez's petition for review of an order of the Board of Immigration Appeals and remanding, the panel held that: 1) absent any prejudice to the Government, a premature petition for review of an immigration order may ripen upon final disposition of the case by the BIA; and 2) the BIA abused its discretion in denying Diaz Martinez's appeal of an immigration judge's denial of her motion to reopen, where the IJ in the underlying removal proceeding ordered Diaz Martinez removed in absentia on the basis of an amended notice to appear of which she did not receive proper notice.

         In 2007 Diaz Martinez was served with a notice to appear ("NTA") charging her as an alien present in the United States who had not been admitted or paroled and alleging that she arrived in the United States at or near San Ysidro, California, on or about August 25, 1989.

         In June of 2010, Diaz Martinez's counsel was personally served a notice of her next hearing, and Diaz Martinez submitted a change of address to the immigration court and the Government. That same day, the Government issued an amended NTA, in which it amended its factual allegations to charge that she entered the United States at or near an unknown place on or about an unknown date. A box was checked indicating that the amended allegations were "in lieu of" the allegations in the 2007 NTA. The certificate of service section listed Diaz Martinez's old address, not the new address she provided, and the boxes for means of service were all left blank. When Diaz Martinez did not appear at her next hearing, the IJ ordered her removed in absentia.

         In 2017, Diaz Martinez filed a motion to reopen, which the IJ denied, and Diaz Martinez appealed to the BIA. While her appeal was pending with the BIA, she filed a petition for review with this court on August 22, 2017, and the BIA later dismissed her appeal on October 25, 2017.

         Diaz Martinez also filed a second motion to reopen, this time with the BIA, which denied the motion, and Diaz Martinez sought review of that order in this court.

         The panel held that it had jurisdiction over Diaz Martinez's first petition for review, concluding that, absent any prejudice to the Government, a petition for review of an IJ's order of removal, prematurely filed with this court prior to a final order from the BIA, may ripen upon final disposition of the case by the BIA. The panel explained that this court has allowed for premature appeals to ripen in civil cases and emphasized the importance of lenity when addressing premature appeals by pro se litigants, as Diaz Martinez was when she prematurely filed her petition for review. The panel also noted the persuasive reasoning of the Second, Third, and Eleventh Circuits, which have held that a premature petition for review can ripen, and declined to follow the contrary approach of the Fifth and Sixth Circuits.

         As a threshold matter, the panel concluded that Diaz Martinez had sufficiently exhausted the argument that she lacked notice of the charges in the amended NTA.

         Next, the panel held that the BIA abused its discretion in denying the appeal of the IJ's denial of her motion to reopen, explaining that her removal order relied on Diaz Martinez's admissions to the amended NTA, despite the fact that there was no evidence in the record that she received the required notice of the amended NTA. The panel also concluded that this due process violation prejudiced Diaz Martinez, noting that: 1) she had plausible grounds for discretionary relief; 2) the failure to serve her deprived her of the opportunity to seek a continuance in light of the amended factual allegations; 3) she lacked notice of facts she would need to prove to qualify for relief; and 4) the order was not supported by substantial evidence, as it was based on an ineffective NTA. The panel thus remanded to the BIA with instructions to reopen the removal proceedings.

         Because the panel determined that the removal order was defective, the panel stated it would not reach Diaz Martinez's petition for review of her second motion to reopen.

         Dissenting, Judge Clifton agreed with the majority that this court has subject matter jurisdiction over Diaz Martinez's first motion to reopen. However, Judge Clifton dissented because: 1) Diaz Martinez failed to exhaust before the BIA the argument that the majority relies upon; and 2) to obtain relief based on a purported due process violation, a petitioner must demonstrate prejudice, and Diaz Martinez did not.

          OPINION

          KATZMANN, JUDGE.

         Petitioner Celia Diaz Martinez ("Diaz Martinez") challenges the denials, by an immigration judge ("IJ") and Board of Immigration Appeals ("BIA"), of two motions to reopen her removal proceedings. Diaz Martinez sought to reopen her removal proceedings after an IJ issued an in absentia removal order when she failed to appear at an immigration hearing. She filed the first motion to reopen ("first MTR") with an IJ, who denied the motion shortly after suggesting that Diaz Martinez would have time to review the record and amend the motion. Diaz Martinez then appealed to the BIA for review of the denial and, before the BIA denied that appeal, Diaz Martinez pro se petitioned for review of the IJ's denial of her first MTR to this court. The BIA subsequently denied her appeal. With new counsel, Diaz Martinez filed a second motion to reopen ("second MTR") with the BIA, which the BIA also denied and Diaz Martinez petitioned for review.

         Whether we have jurisdiction to review the denial of the first MTR, where Diaz Martinez filed her petition before the BIA issued a final decision, is an issue of first impression for our court. Diaz Martinez argues that we have subject matter jurisdiction over her pro se petition because the BIA issued a decision before this court considered the merits of her case, thus curing any defect in her premature filing in this court. Assuming jurisdiction, Diaz Martinez asks us to void the IJ's in absentia removal order and remand this case to the BIA to reopen because (1) she lacked notice of the amended charges against her; (2) she lacked notice of the time of her final removal hearing; (3) the IJ and BIA wrongly ignored the statements of Diaz Martinez's counsel; (4) the IJ should have waited to rule on Diaz Martinez's MTR because of her history of diligence; and (5) the BIA abused its discretion by not reopening the case sua sponte. Diaz Martinez further argues that the BIA should have granted Diaz Martinez's second MTR.

         We determine that we have jurisdiction over the petition for review of the first MTR, as the petition ripened prior to consideration on the merits here. Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii), we conclude that Diaz Martinez lacked notice of the amended charges, and therefore the removal order was unsupported by substantial evidence and the BIA abused its discretion in failing to reopen her proceedings. Accordingly, we grant the petition for review. We do not reach Diaz Martinez's alternative arguments.

         I. Factual and Procedural Background

         Diaz Martinez is a 47-year-old citizen of El Salvador without legal status in the United States. Diaz Martinez has five U.S. citizen children, two of whom have medical issues.

         On February 9, 2007, Diaz Martinez was served in person with a notice to appear ("2007 NTA") and taken into immigration custody. She was charged with violating section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA") as "an alien present in the United States who has not been admitted or paroled." 8 U.S.C. § 1182 (2007). The 2007 NTA alleged the following facts:

1) You are not a citizen or national of the United States;
2) You are a native of El Salvador and a citizen of El Salvador;
3)You arrived in the United States at or near San Ysidro, California, on or about August 25, 1989;
4) You were not then admitted or paroled after inspection by an Immigration Officer.

The 2007 NTA was stamped as received by the Department of Justice on February 15, 2007 and stamped as an exhibit by the IJ on March 5, 2007. On March 7, 2007, Diaz Martinez was released on bond from immigration custody in Florence, Arizona.

         Over the course of three years, Diaz Martinez diligently attended numerous hearings in immigration court and communicated her address changes to the Government (i.e., the Department of Homeland Security). Diaz Martinez's first master calendar hearing was scheduled for May 1, 2007 at 8:30 a.m. On May 1, the IJ granted her pro se motion for a change of venue to the immigration court in Los Angeles, California. On May 17, 2007, the Los Angeles immigration court served Diaz Martinez by mail with a notice of hearing, scheduling a master calendar hearing at the Los Angeles immigration court for June 13, 2007 at 9:00 a.m. On June 13, 2007, the immigration court served her in person with a new notice of hearing, scheduling a master calendar hearing for February 25, 2008 at 9:30 a.m. On February 12, 2008, the immigration court issued another new notice of hearing, scheduling an individual hearing for June 2, 2008 at 9:30 a.m. The certificate of service box indicates that the new notice was served by mail to both Diaz Martinez and her then-counsel. On February 25, 2008, Diaz Martinez was served in person[1] with another notice of hearing, again scheduling an individual hearing for June 2, 2008 at 9:30 a.m. On June 2, 2008, the immigration court served Diaz Martinez and her attorney in person with a new notice of hearing, reassigning Diaz Martinez's case to a new IJ and scheduling a master calendar hearing for November 25, 2008 at 9:30 a.m. That same day, Diaz Martinez filed a change of address form with the immigration court. On December 3, 2009, the immigration court issued a new notice of hearing, scheduling a master calendar hearing for June 23, 2010 at 8:30 a.m. The notice indicated that it was served by mail on Diaz Martinez's counsel at the time.

         On June 23, 2010, Diaz Martinez and her then-counsel appeared before the immigration court, and the court issued a notice of hearing for another master calendar hearing. The notice was served on Diaz Martinez's counsel in person and indicated that a master calendar hearing would be held on October 27, 2010 at 8:00 a.m., with the "8" partly obscured by a pen marking. The notice also indicated that the next hearing would be a removal hearing and failure to appear would, absent exceptional circumstances, result in ineligibility for certain forms of relief under the INA.

         That same day, June 23, 2010, two other critical events occurred. First, Diaz Martinez submitted a change of address form, providing a new address.[2] The IJ stamped the form as received on June 23, 2010, and Diaz Martinez signed the form, certifying that she had mailed a copy of it to the Government. Second, the Government issued an "Additional Charges of Inadmissibility/Deportability" form ("amended NTA"), which amended the 2007 NTA. The Government lodged no additional charges against Diaz Martinez, but it amended the factual allegations against her. The Government alleged, "You entered the United States at or near an unknown place on or about an unknown date," removing the references to El Salvador and the 1989 entry. A box was checked indicating that the amended factual allegations were "in lieu of," rather than "in addition to," the facts alleged in the 2007 NTA. Thus, the amended NTA no longer included her approximate date or place of entry into the United States. The IJ also stamped the amended NTA as received on June 23, 2010. The certificate of service section of the form listed Diaz Martinez's old address, not the new address provided on June 23, 2010, and the boxes for means of service (in person, certified mail, regular mail, and oral notice) were all left blank. Neither the Government nor Diaz Martinez signed the certificate of service box. The record does not provide any other evidence that Diaz Martinez or her counsel were served by mail or in person with the amended NTA.

         On October 27, 2010, Diaz Martinez was not present at the hearing, and the IJ ordered her removed in absentia. The IJ marked the following as her finding: "At a prior hearing the respondent admitted the factual allegations in the Notice to Appear and conceded removability. I find removability established as charged." The IJ's final order concluded that "[t]he respondent shall be removed to EL SALVADOR on the charge(s) contained in the Notice to Appear."

         Diaz Martinez claims that in October 2010, she went to the Los Angeles immigration court for her hearing, but the courtroom was locked, and court staff told her that the IJ was not present. According to Diaz Martinez, court staff told her that she would receive notice of a new hearing date and time in the mail. Diaz Martinez did not receive a new notice of hearing. Diaz Martinez then made payments to a notario who had previously helped her so that he would reopen her case. She later learned that he never did so, and she instead had been ordered removed. In 2014, she hired new counsel to reopen her case, but he died in a car accident, and no motion to reopen was filed.

         In 2017, Diaz Martinez retained new counsel. On June 1, 2017, counsel filed a motion to reopen removal proceedings (the "first MTR") and a motion to stay removal in the immigration court. The first MTR challenged Diaz Martinez's order of removal on due process grounds, arguing that "[d]ue process requires that the alien be provided with notice of proceedings and an opportunity to be heard. Notice must be reasonably calculated to apprise the alien of his or his scheduled hearing and the immigration charges against him." The first MTR further stated that "[t]his motion will be supplemented after counsel has had the opportunity to review the Court's Record of Proceedings." That same day, then-counsel for Diaz Martinez sent a request to the Executive Office for Immigration Review ("EOIR") for audio of "Respondent's hearings, including her removal hearing on October 27, 2010."

         A little over a week later, on June 9, 2010, the IJ denied the first MTR because the motion was not supported by documentary evidence. In a separate order issued that same day, the IJ granted the motion for a stay of removal to enable counsel to review the record and resubmit the MTR. The decision was served on Diaz Martinez's counsel by mail, under a cover letter dated June 12, 2017.

         Diaz Martinez appealed the denial of the first MTR to the BIA. The Government then filed a motion to vacate or terminate the stay of removal, and the IJ granted the motion on July 12, 2017, finding that Diaz Martinez had failed to timely resubmit her motion with supporting documentation.[3] The order terminating the stay of removal was served by mail on Diaz Martinez's counsel on July 13, 2017.

         On August 3, 2017, Diaz Martinez pro se filed a petition for review of the IJ's decision in the Ninth Circuit. On August 22, 2017, her counsel filed with the BIA a brief in support of Diaz Martinez's appeal of the IJ's denial of the first MTR. On October 25, 2017, the BIA dismissed the appeal of the IJ's June 9, 2017 order denying the first MTR. The following day, the Government filed a motion to dismiss Diaz Martinez's federal petition for lack of subject matter jurisdiction. We denied the motion to dismiss without prejudice and ordered further briefing from both parties as to "whether the BIA's October 25, 2017 order cures any prematurity in the filing of this petition." We also granted a motion to stay removal pending the outcome of these proceedings.

         On February 1, 2018, through new counsel, Diaz Martinez filed a second MTR, this time directly with the BIA. The second MTR included a declaration in which Diaz Martinez explained the circumstances around her absence from the October 27, 2010 immigration court hearing, among other things. The BIA denied the MTR on June 20, 2018, finding that it was filed untimely, was number-barred, and included an incomplete declaration. The BIA further concluded that "[w]e also do not find that the respondent's due process rights were violated based on a lack of notice." Diaz Martinez then sought review of the BIA's denial of the second MTR with this court.

         We review the consolidated petitions for review of Diaz Martinez's first and second MTRs.

         II. Jurisdiction

         "[W]e retain jurisdiction to determine our own jurisdiction." Ramirez v. Lynch, 810 F.3d 1127, 1130 (9th Cir. 2016). Diaz Martinez and the Government dispute whether we have jurisdiction over her petition for review of the first MTR, docketed at 17-72186. There is no dispute, however, as to our jurisdiction over her petition for review of the second MTR, docketed at 18-72034. Because the second MTR poses potential procedural obstacles to reaching consideration on the merits that the first MTR does not, we begin with the issue of jurisdiction over the first MTR.[4] Both MTRs seek to challenge an in absentia removal order, which we have jurisdiction to review pursuant to 8 U.S.C. § 1229a(b)(5)(D).

         To determine our jurisdiction we resolve the following issue: can a petition for review of an IJ's final order of removal, prematurely filed with our court prior to a final order from the BIA, ripen into an effective appeal pursuant to Federal Rule of Appellate Procedure 4(a)(2) upon issuance of a final ruling from the BIA? We previously left that question open, "tak[ing] no position on the current circuit split regarding treatment of premature petitions generally." Abdisalan v. Holder, 774 F.3d 517, 527 (9th Cir. 2014) (en banc). We have made clear that, pursuant to statutory requirements, our court's jurisdiction to review immigration court decisions is limited to final orders of removal from the BIA. See Alcala v. Holder, 563 F.3d 1009, 1013 (9th Cir. 2009) (citing 8 U.S.C. § 1252); see also Shaboyan v. Holder, 652 F.3d 988, 989-90 (9th Cir. 2011) (finding that an interim order from the BIA denying a stay of removal did not qualify as a reviewable final order of removal but leaving open the possibility that the order could be reviewed as part of the review of a final order of removal). In Abdisalan, we explained that "when the BIA remands to the IJ for any reason, no final order of removal exists until all administrative proceedings have concluded . . . [W]hen the BIA issues a mixed decision, no aspect of the BIA's decision is 'final' for the purpose of judicial review." 774 F.3d at 526. Thus, while pending administrative proceedings on remand may preclude the ripening of a premature petition to the court, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.