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Hernandez-Castillo v. Sessions

United States Court of Appeals, Fifth Circuit

November 8, 2017


         Petition for Review of an Order of the Board of Immigration Appeals

          Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.


         Petitioner Juan Antonio Hernandez-Castillo, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals' (BIA) order upholding the denial of his motion to reopen removal proceedings and declining to reopen proceedings sua sponte or to grant administrative closure. Because the BIA did not abuse its discretion in dismissing the petition and declining to administratively close the case and because we lack jurisdiction to review the BIA's refusal to reopen proceedings sua sponte, we DENY in part and DISMISS in part Hernandez-Castillo's petition for review.


         Petitioner Juan Antonio Hernandez-Castillo, a native and citizen of El Salvador, was apprehended by Border Patrol agents on March 15, 2005, after attempting to enter the United States from Mexico without authorization near Eagle Pass, Texas. The following day, Hernandez-Castillo was personally served with a notice to appear. The notice to appear charged Hernandez-Castillo with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) because he had not been admitted or paroled by the appropriate authorities. The notice to appear informed Hernandez-Castillo that he was required to provide the agency with his full mailing address and telephone number in writing. The notice to appear went on to advise him that he must immediately notify the immigration court, using Form EOIR-33, whenever he changed his address or telephone number during the course of the proceedings, and that he would receive any hearing notices at the address provided. The notice to appear also stated that if he did not submit an EOIR-33 form or otherwise failed to provide an address at which he could be reached, the government would not be required to provide him with written notice of his hearing. Moreover, the notice to appear advised Hernandez-Castillo that failure to attend a designated hearing could result in the immigration judge entering an in absentia removal order.

         Hernandez-Castillo signed the notice to appear, acknowledging that he had been provided oral notice in Spanish of the time and place of his hearing and the consequences of failing to appear. The Border Patrol released Hernandez-Castillo on his own recognizance due to a lack of detention funds. Hernandez-Castillo informed the Border Patrol agents that he was trying to travel to Los Angeles, California to live with his sister. He provided a phone number, but several attempts to establish contact at this number were unsuccessful. Hernandez-Castillo did not provide a valid United States address.

         On April 26, 2005, the Department of Homeland Security (DHS) filed the notice to appear in immigration court. On May 4, 2005, a hearing was held at which Hernandez-Castillo failed to appear. The immigration judge sustained the charge of removability and ordered Hernandez-Castillo removed to El Salvador in absentia. More than nine years later, Hernandez-Castillo, through counsel, filed a motion to reopen his removal proceedings and rescind the in absentia removal order. Hernandez-Castillo conceded that he was personally served with a notice to appear that explained his obligation to provide a current telephone number and mailing address and warned him of the consequences of failing to appear at his hearing.

         Nevertheless, Hernandez-Castillo contended that he should be excused from his failure to appear because: (1) he did not receive notice of his hearing date; (2) DHS did not detain him to ensure his appearance but instead released him from physical custody despite the fact that he had not provided the agency with a valid address; and (3) the notice to appear was not filed until forty-one days after the date of issue, which made it "unreasonable" to expect that he could provide a valid address prior to the hearing date of May 4, 2005. For the first time, Hernandez-Castillo also alleged that he was requesting to reopen his case so that he could seek asylum because he feared he would be murdered or tortured by gang members if he returned to El Salvador.

         The immigration judge denied the motion to reopen removal proceedings, concluding that written notice of the hearing was not required because there was no record that Hernandez-Castillo ever provided the immigration court with an address until he filed his motion to reopen. The immigration judge also found that Hernandez-Castillo had received an admonition in Spanish of the consequences of failing to appear. Moreover, the immigration judge rejected the argument that reopening was required because Hernandez-Castillo was released from custody before the notice to appear was filed with the immigration court. The immigration judge noted that even in the absence of a charging document, any address provided to the court would have been "placed in a suspense file in the database to be available when a charging document is filed; not returned, rejected or destroyed." The immigration judge concluded that there were no exceptional circumstances warranting a sua sponte reopening of the case because, among other things, Hernandez-Castillo failed to provide an address to the court and made no attempt to contact the court after release from custody.

         Hernandez-Castillo appealed the immigration judge's decision to the BIA. He argued that the immigration judge had erred in determining that he had failed to meet his burden to provide a valid address and in rejecting his lack-of-notice claim against the government. He further argued that regardless of the BIA's decision as to his other arguments, the BIA should sua sponte reopen his proceedings and grant administrative closure of his case based on "humanitarian factors" and his eligibility for withholding of removal and relief under the Convention Against Torture.

         The BIA affirmed the immigration judge's decision "for the reasons cited therein, " stating that Hernandez-Castillo had failed to fulfill his obligation to provide the immigration court with a valid address and that, consequently, the court was not required to provide notice of the hearing. The BIA agreed with the immigration judge that Hernandez-Castillo's release from custody before he had provided a valid address had "no bearing on his noncompliance with his obligation to provide the [c]ourt with his address." In addition, the BIA found that it was immaterial that the notice to appear was not filed with the court until approximately forty days after Hernandez-Castillo was served, because if he had attempted to provide an address, the court would have placed the address in a suspense file to be available when the charging document was filed. Considering the "totality of the circumstances, " which included Hernandez-Castillo's humanitarian considerations, the BIA upheld the immigration judge's decision. The BIA found that Hernandez-Castillo had not presented any factors "either individually or in the aggregate, " that were "so exceptional as to trigger the limited authority to reopen proceedings sua sponte." The BIA then denied the request for administrative closure on the grounds that the request did not "meet the standards in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012)" because Hernandez-Castillo had "not established prima facie eligibility for any form of relief." Thus, the BIA dismissed the appeal. Hernandez-Castillo timely filed a petition for review.


         We apply a highly deferential abuse-of-discretion standard in reviewing the denial of a motion to reopen removal proceedings. Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). As long as the BIA's decision is "not capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach, " we must affirm it. Id. (citing Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006)). We review the BIA's factual findings under the substantial-evidence test, which prevents us from reversing the BIA's factual determinations unless the evidence compels reversal. Id. In reviewing the denial of a motion to reopen removal proceedings, we review the BIA's order and will evaluate the immigration judge's underlying decision only if it influenced the BIA's opinion. Id.



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