19

- 4089 Gomez

- Garcia v. Garland


## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO TATION “ SUMMARY ORDER ” ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 1 8 t h da y of M a y , two thousand twenty

- three

. 3 4 PRESENT: 5 AMALYA L. KEARSE , 6 MICHAEL H. PARK , 7 ALISON J. NATHAN , 8 Circuit Judges. 9

_____________________________________ 10 11 Jorge Estuardo Gomez

- Garcia , 12

Petitioner , 13 14

v. 19

- 4089 15 16 Merrick B. Garland, 17 United States Attorney General , 18
Respondent. * 19

_____________________________________ 20 21 FOR PETITIONER : Randy Olen, Providence, R.I. 22

FO R RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney 23 General ; Carl H. McIntyre, Assistant Director; Justin 24 R. Markel , Senior Litigation Counsel, Office of 25 Immigration Litigation, United States Department of 26 Justice, Washington, D

. C

. 27

* The Clerk of Court is respectfully directed to amend the caption accordingly.2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 1

DECREED that this petition for review of the Board of Immigration Appeals (“BIA”) decision is 2

GRANTED , the BIA’s decision is VACATED , and the case is REMANDED to the BIA for 3
further proceedings. 4
In November 1996, Gomez

- Garcia, a then

- 15

- year

- old native and citizen of Guatemala, 5

entered the United States without inspection. Gomez

- Garcia was found in Kansas, placed in 6
deportation proceedings, and released in to the custody of his uncle, Oscar Daniel Flores . Flores 7
provided his address in Connecticut where Gomez

- Garcia would be staying

. The immigration 8

court mailed notices of Gomez

- Garcia’s deportation hearing to that address in May 1997, 9
November 1997, and January 1998 . Two of the notices were addressed to Gomez

- Garcia and the 10

third was address ed t o Gomez

- Gar c ia in the care of “Oscar Daniel Fores [sic]. ” All three notices 11

were returned as unclaimed

. Gomez

- Garcia and his uncle had moved before the notices were sent 12
and had not filed a change

- of

- address form with the immigration court

. Flores had f iled a change

13

of

- address notice with the p ost o ffice; but the first two notices mailed by the immigration court 14

were address ed only to Gomez

- Garcia and were not sent in the care of Flores; and the third notice, 15

in its “ in care of ” line misspelled Flores’s name. Gomez

- Garcia did not appear at his April 1998 16
hearing and was ordered removed to Mexico or Guatemala in absentia. In 2018, Gomez

- Garcia 17
moved to rescind his deportation order. A n Immigration Judge (“IJ”) denied his motion and the 18

BIA dismissed Gom ez

- Garcia’s appeal of the IJ’s denial. Gomez

- Garcia now appeals. We assume 19
the parties ’ familiarity with the underlying facts, the procedural history of the case, and the issues 20
on appeal. 213 This Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. 1

Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). We review questions of law and the application of 2
law to undisputed facts de novo

. See Padmore v. Holder , 609 F.3d 62, 67 (2d Cir. 2010)

. We 3

review the BIA’s decision to deny a motion to reopen proceedings for abuse o f discretion. Bhanot 4
v. Chertoff , 474 F.3d 71, 73 (2d Cir. 2007). 5
As relevant here, t he BIA found that Gomez

- Garcia was not eligible for rescission of his 6
in absentia deportation order because he had received proper notice of his deportation hearing

. See 7

8 U.S.C. § 1229a(b)(5)(C)(ii). First, the BIA reasoned that Gomez

- Garcia was in constructive 8
receipt of the deportation hearing notices because they were sent to his “last known address and 9

he failed to provide the court with his current address

. ” Certified Admin. Record at 4 (citing 10
Maghradze v. Gonzales , 462 F.3d 150, 15 4 (2d Cir. 2006) ). Second, the BIA concluded that the 11

notice s were proper , despite being addressed to Gomez

- Garcia directly and not to his adult 12
custodian, because Gomez

- Garcia was at least fourteen years old at the time

. The BIA relied on 13
Matter of Cubor

- Cruz , 25 I. & N. Dec. 470 (B.I.A. 2011), which held that 8 C.F.R. 14
§ 103. 5a(c)(2)(ii) (now codified at 8 C.F.R. § 103.8(c)(2)(ii) ) “ governs the service of notice on 15

minors ” and “ only requires notice to be served on an adult when the minor is under 14 years of 16

age

. ” Id. at 472. 17

T he BIA did not analyze , however, whether Maghradze or Matter of Cubor

- Cruz should 18
apply given the particular facts of this case

. U nlike the petitioner in Maghradze , Gomez

- Garcia 19
was a minor when he was held to be in constructive possession of the mailed notice. And unlike 20
the petitioner in Matter of Cubor

- Cruz who was “served in person with a Notice to Appear , ” 25 I. 21
& N. Dec. at 471, it appears that Gomez

- Garcia did not receive actual notice of his hearing date, 224 time, or location , but was deemed to be in constructive notice of the infor mation because the 1
hearing notices were sent to his last known address

. In addition, a s the government points out, the 2

record is not clear whether Gomez

- Garcia’s uncle was notified of Gomez

- Garcia’s obligation to 3
update immigration authorities of any change to the address he had provided

. See Resp. Supp. Br. 4

at 4 n.4

. In light of these circumstances, w e remand to the BIA for further f act

- finding and to 5

consider in the first instance whether Maghradze and Matter of Cubor

- Cruz apply here, and if so, 6
whether such an application would raise due process concerns. 7

We have considered the parties’ remaining arguments and find them to be with out merit. 8
For the foregoing reasons, the petition for review is GRANTED , the BIA’s decision is 9

VACATED , and the case is REMANDED to the BIA for further proceedings. 10

FOR THE COURT: 11 Catherine O ’ Hagan Wolfe, Clerk of Court 12 13 14