New BIA Decision on In Absentia Removal: Matter of Nivelo Cardenas

On August 5, 2020, the Board of Immigration Appeals (BIA) decided Matter of Nivelo Cardenas, 28 I&N Dec. 68 (BIA 2020), holding that “where an alien who has been personally served with a notice to appear advising him of the requirement to notify the Immigration Court of his correct address fails to do so and is ordered removed in absentia for failure to appear for the scheduled hearing, reopening of the proceedings to rescind his order of removal based on a lack of proper notice is not warranted under section 240(b)(5)(C)(ii) of the Act.”

In the case on review, the respondent listed his street address as the town of “Patcbogue,” New York. Notice was sent to the court at that address and returned to the immigration court stamped “ATTEMPTED, NOT KNOWN.” The respondent’s correct address was in the town of “Patchogue,” New York. The respondent never received the notice that was sent to the wrong address. He was ordered deported in absentia, without ever appearing in immigration court.

The respondent later filed a motion to reopen arguing that he did not receive notice of the hearing. The immigration judge rejected the motion, and the BIA affirmed. Even though it was undisputed that he did not receive the notice of the hearing, the BIA found that “he was on notice that he had a duty to correct his address information . . .”

The lack of an adequate system for providing notice of hearings is a serious problem in immigration court. In Nivelo Cardenas, the respondent received a notice to appear, but it did not contain the time and date of the hearing. At oral argument in Pereira v. Sessions, 138 S. Ct. 2105 (2018), we learned this is normal. Counsel for the government revealed that “almost 100 percent” of notices to appear issued over the preceding three years had omitted the date and time of the court hearing.

In a recent study of in absentia removal, Steven Shafer and I argue that the U.S. immigration court should learn from other court systems that have designed innovative programs to remind people about their court dates. For example, county programs in Arizona and Colorado have slashed in absentia rates in half after unrepresented individuals were called by telephone to remind them about their upcoming misdemeanor court hearings.

IE