F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

O D I L I A D E J E S U S V E L A S Q U E Z

E S C O V A R , P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 10-73714

Ag ency No. A088-753-610

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Submitted J uly

11, 2014 * Pasadena, California

F iled September 29, 2014

B efore: B arry

G. Silverman, Richard C. Tallman, and J ohnnie B . Rawlinson, Circuit J u d g es.

O pinion by

J udg e Tallman; D issent by

J u dg e Rawlinson

* T h e p an el u n a n i m o u sl y co n clu d es th is case is su itab le f o r d ecisio n

w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).V E L A S Q U E Z -E S C O V

A R V

. H O L D E R 2

SUMMARY * *

Im m igration

The panel g ranted Odilia d e J e sus Velasquez -Escova r’ s petition fo r r e v iew of the B oard of I mmig r ation Appeals’ denial of her motion to reopen an in absentia removal order.

The panel held that the BI A a b used its discretion in finding that Velasquez w a s n o t entitled to notice o f her deportation hearing . The panel wrote that aliens a re entitled
to notic e unless they fail to g ive a c u r rent address to the
g overnment, or fail to let the go vernment know when they
move, and held that Velasquez did neither. The pa n e l h e l d that the B I A a

rbitrarily discounted Velasq u ez ’s unrefuted claim without providing a reason, because the two reasons it provided did n ot support its decision. The panel h e l d that this c ourt could not affirm the B I A ’s d ecision pursuant to 8 C.F .R. § 1003.15(d)(1), which p laces the burden on an alien
to inform the immig ration c o u rt that the g overnment used the
wrong address on a No t i ce to Appear, because the B I A ’s decision did not invoke that reg ulation, and b e cause the NTA itself d id not ment i on § 1003.15(d)(1) or otherwise put Velasquez on notice.

Dissenting

, J udg e Rawlinson would find that the B I A did
not act in an arbitrary

or irrational fashion, and that it g ave a reasoned ex planation for its ruling

. J udg e Rawlinson would find Velasquez ’s failure to provide her current address to the
ag ency in wri t i n g fatal to her c ase. J u dg e Rawlinson would

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.V E L A S Q U E Z -E S C O V

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. H O L D E R 3

find that § 1003.15(d)(1) should apply to this case. Apply ing

an abuse of d iscretion standard o f review, J udg e Rawlinson would find no abuse, and would deny the petition.

COUNSEL

Alejandro Garcia, Commerce, California, for Petitioner.

Tony West, Assistant Attorney General, C i vil Division; Holly M. Smith, Senior L itig ation Counsel, O ffice of I mmig r ation L itig ation; Claire L

. W orkman, Trial A ttorney , C i vil Division, United States D epartment of J ustice, W ashi n gton, D.C., for Respondent.

OP INION

TAL L MAN, Circuit J u dg e:

At the o utset of her removal proceeding s, Odilia de J e sus Velasqu e z -Escovar g ave immig ration officials her current address in L os Ang eles. B ut those officials did not properly record it. I nstead, they recorded another outdated address a nd then sent Velasquez ’s hearing notice there. Velasquez never g ot that notice and, without it, she did not know w hen to appear for her d eporta t i o n hearing

. Understandably

, she failed to appear and was ordered removed in absentia. W h en she found out about that order, V elasquez mo v e d to reopen. An I mmig ration J u dg e denied that motion, a nd the B oard o f I mmig r a t i o n A p peals affirmed. I n so doing

, it a bused its discretion. According ly

, we g rant Velasquez ’s petition for review.V E L A S Q U E Z -E S C O V

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. H O L D E R 4

I

Odilia de J esus V e l asquez -Escovar is Guatemalan. She il l e gally entered the United States around 1990, settling in L o s Ang eles. She has four children; two are native-b o r n citiz ens o f the United S t a t e s. She admits that she remains here unlawfully

.

I n 2007, Velasquez returned b riefly to Guatemala. On her
way back to L o s Ang eles, she was pulled over in Refug io, Tex as, by local police. Those officers calle d federal immig ra t i on officials, who met Velasquez at the Calhoun Count y J a il. There, she admitted h er alienag e and was transported to the Corpus Christi B order Patrol Station f o r processing

. Velasquez claims that t h e Corpus Christi-based immig ration officials asked her f or her current address. She
say s that she told them that she a nd her d a u gh t e r s had just moved to 14001 Vanowen Street, V an Nuy s, California. Nex t, she c laims she was asked whether she had ever lived at 11827 V alerio Street in L os Ang eles. Petitioner say s she told them th a t she had lived at Valerio Street, b ut that the Vanowen a ddress was her current one. Velasquez say s the
ag ents told h er that they found the Valerio address b y looking
up her “ identification number,” w hich she assumes meant the number on her California state identification card.

After h and-serving Velasquez with a N otice to Appear (NTA), immig ration authorities released her. The NTA charg ed h e r as removable and ordered her to appear in L os Ang eles for a

n immig ration hearing at a date a nd time “to be

s e t” later. T he NTA mistakenly listed the Valerio S t r e et address a s Velasquez ’s c u rrent address. W e do n ot knowV E L A S Q U E Z -E S C O V

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. H O L D E R 5

whether V elasquez noticed the error, but we do know that she never brought it to the g overnment’s attention.

NTA in hand, Velasquez returned to California. Since her return, she has lived at the Vanowen address. She spent roug h ly six months reg ularly visiting an attorney ’s office to check on the status of her ca s e

. Eventually she g ave up. Having r e ceived no further word from the g overnment, she assumed her case had been c losed. She was wrong . F ifteen months after Velasquez stopped visiting the lawy e r—which

was a lmost two y ears after she was arrested in Tex as—the immig ration c ourt mailed a notice setting a date and time for Velasquez to appear. T h e notice went to Velasquez ’s old address o n V alerio Street, not her current address on Vanowen. Velasquez d id not receive the notice, did not appear, and w as ordered removed in absentia. A c opy of the removal order was sent to the Valerio address and r eturned a s undeliverable.

Roug h ly six months later, Velasquez was detained b y I mmig r a tion and Customs Enforcement. (The record does not say why .) W h ile detained, she learned of t h e outstanding removal order and immediately filed a motion to reopen. She
arg ued that she should not h a v e l o s t her rig ht to a h earing because the g overnment improperly recorded—and then sent notice to—an old a d dress, rather than the cur r e n t one she claims to have g iven them. T he g overnment arg ued that it

was her burden to tell it that it had the wrong address because she should have noticed the e rror on the NTA. The I J ag reed

w ith the g overnment and denied the motion to reop e n

. T h e B I A dismissed Velasquez ’s appeal of that denial. Velasquez now petitions for review.V E L A S Q U E Z -E S C O V

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. H O L D E R 6

II

W e have jurisdiction u nder 8 U.S.C. § 1252(a)(1) (2012). Our review includes the “validity of the notice provided to the alien” and “the reasons f o r the alien’s absence” from the hearing

. 8 U.S.C. § 1229a(b)(5)(D) (2012).

III

W e review the denial of a motion to reopen for abuse o f discretion. Hamazaspyan v. Holder , 590 F .3d 744, 747 (9th Cir. 2009). Here, the B I A reviewed the I J ’s decision de novo,

so we review only the B I A’s decision. Hosseini v. G onzales

, 471 F .3d 953
, 9 57 (9th Cir. 2006). T he B I A abuses its discretion w hen it acts “arbitrarily

, irrationally

, or contrary to the law.” Lainez-Ortiz v. I NS
, 96 F .3d 393, 395 (9th Cir. 1996).

IV

There i s o nly one q

uestion here: Did the B I A abuse its discretion when it decided that Velasquez was not entitled to notice under the immig ration s t a tutes? The answer is “y es” because n either of the B I A ’s two reasons support its decision. I t is arbitrary to discount Petitioner’s unrefuted claim without providing a reason.

A

Th e immig ration statutes g overning notice do three thing s:

(1) They create a rig

ht to notice;V E L A S Q U E Z -E S C O V

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. H O L D E R 7

(2) T h ey create an ex ception to that rig ht for aliens w h o do not fulfill two simple oblig a tions; and

(3) They describe those oblig ations.

Two provisions create t h e r i ght to notice. F irst, 8 U .S.C. § 1229(a)(1) r equires that “ I n removal proceeding s

. . . written notice (in this section referred to as a ‘notice to appear’) shall be g iven in person to the alien (or, if per sonal service is n ot p racticable, throug h servic e b y mail

. . . )

. . . specify ing

. . . [ t] he time and place at which the proceeding s will be held.” Sometimes the NTA leaves the hearing time “to be set,” as it did here. Section 1 229(a)(2)(A) covers those

cases and cases where h earing s are continued: “ [ I ] n the case of any chang e o r postp o n e m e nt in time and place

. . . a written notice shall b e g iven in person to the alien (or, if personal service is not practicable, throug h service by mail

. . . ).” B e tween them, these two provi s i o n s c reate, at a minimum, a r ig ht to “written notice” “serv [ e d ] by mail.” 8 U.S.C. § 1229(a)(2)(A).

That r i g ht is “subject to subparag raph (B ).” Id. Subparag raph (B ) creates the ex ception: “[ A] written notice shall not be required

. . . if the alien has failed to provide the

a d d r e s s r e q u i r e d u n d e r p a r a g r a p h [ 2 8 U

. S

. C

. § 1229(a)] (1)(F ).” 28 U.S.C. § 1229(a)(2)(B ); see also 28 U.S.C. § 1229a(b)(5)(B ) (identical ex ception in provision dealing specifically with absentia proceeding s). The “address required” lang uag e refers to the section that describes the two simple o b l i ga t ions that a liens must perform to retain their rig ht to notice.V E L A S Q U E Z -E S C O V

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. H O L D E R 8

Those two oblig ations are:

(1) “[ T] he alien m ust immediately [ upon service of the NTA] provide (or h a ve provided) the Atto rney General with a written r ecord of an address and telephone number (if any

) at which the alien may be

c o n t a c t e d r es p e c t i n g [ t h e r e m o v a l ] proceeding ,” and

(2) “[ The alien] must provide the Attorney General immediately with a written record of an y c h ang e of the alien’s address o r telephone number.”

28 U.S.C. § 1229(a)(1)(F )(i)–(ii). These a r e the only two address-related oblig ations that the statutes impose on aliens. (A reg ulation, as we will see, may add a third.)

Put simply

, aliens are entitled to notice unless they f ail to
g ive a current address to the g overn m e n t or fail to let the
g overnment know when they move. Here, Velas q u e z did neither. She claims that she g a ve the Corpus Christi-based immig ration o fficials h e r c urrent address on Vanowen Street

a n d that she never moved. Nothing in the record r efutes either claim. According ly

, the statutes e ntitled h er to notice.

B

The B I A’s contrary decision was an abuse o f d i s cretion. The B I A decided that Velasquez w as not entitled to notice for
two reasons. F irst, the B I A concluded that Velasquez was not entitled t o n o tice because she failed to provide the
g overnment with her address: “the respondent was informedV E L A S Q U E Z -E S C O V

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. H O L D E R 9

of her oblig ation to inform the I mmig ration Court of her mailing address. She did not do so. The respondent therefore i s not entitled to receive actual notice of her hearing .” J u s t before it wrote that Velasquez “did not” tell the g overnment her address, t h e B I A wrote that Velasquez “alleg edly i nformed the DHS that she w as living with h er daug ht er s at 14001 Vanowen Street.”

I n o ther words, the B I A concluded that Velasquez “ did not” provide her current a ddress after acknowledg ing that she claims she did. This is arbitrary because the B I A g ives no

reason f or discounting Velasquez ’ s claim. And t h e r e is no

reason it could g ive. The claim is facially plausible a nd supported by Velasquez ’s declaration. There is no contra ry evidence, and no adverse credibility finding

. So far as we can tell, the B I A d isbelieved Velasquez for no reason. I t can not do that.

The B I A ’s second r eason is n o b etter. The B I A wrote that “even assuming [ Velasquez ] told the of f icer that [ Valerio]

was h er prior address and that o f ficer misunderstood [ Valerio] to be her current addr e ss, it would not chang e the result of this case.” I t w e n t on: “[ Velasquez ] was on notice throug h the address on the N TA and the advisal included with it that she h a d a duty to notify the I mmig ration Court o f her
current a dd r e ss. I n other words, it was incumbent on [ Velasquez ] to ensure that a correct address was supplied

. . . . [ S ] he did n ot do so.” This reason is as inconsistent as the last. The B I A say s that “it was incumbent on [ Velasquez ] to

ensure that a c orrect addres s w a s supplied” and then concludes that “she did not do so.” B u t V e l asquez ’s unrefuted claim is that she did supply the correct address—Vanowen Street.V E L A S Q U E Z -E S C O V

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. H O L D E R 10

Possibly

, the B I A meant to say that Velasquez was required to “ensure that the correct address was written d o w n ” instead of that she was required to “ensure that t h e correct address was supplied

. ” This too would be an abuse o f discretion because it ta k e s the N TA a dvisal’s meaning a nd stretches it too far. Th at advisal say s only that “You a re required to provide the DHS, in w riting

, with y o ur full mailing address and tele p h one number.” Nothing in the advisal mentions or fairly implies a n y c o ntinuing d

uty , much less a con t i n u ing duty to correct the g overnment. Once the alien provides an address and phone number, the alien’s work is done. I f the B I A meant to say otherwise, then it abused its discretion.

C

Rather than defend the B I A’s reasoning

, the g overnment

r e l i e s on three alternate g rounds to defend the r esult b e low. F irst, the g overnment points to 8 C.F

. R

. § 1003.15(d)(1). This reg ulation provides that “if the address on the

. . . Notice
to Appear is incorrect, the alien must provide to the I mmig r a tion Co u r t where the charg ing document has been filed, within f

ive day s of service of that document, a written notice of an address and telephone number at which the alien

can be co n t a c t e d .” 8 C.F .R. § 1003.15(d)(1). I n effect, this
reg ulation adds a third o blig ation to the two mentioned in the

s t a t u t es. I n other words, the statutes require aliens to ( 1 ) provide an address and (2) tell the g overnment if they move, and the r e gu l a t ion demands that they also ( 3) tell the
g overnment if it puts the wrong address on the NTA.

W e ag ree with the g overnment that the reg ulation fits the situation here. Velasque z admits receiving the NTA, which bears an incorrect address. The reg ulation— a n d c ommonV E L A S Q U E Z -E S C O V

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. H O L D E R 11

sense—put the burden o n the alien to inform the immig r ation
court that the g o vernment g ot it wrong

. B ut b e c ause the B I A’s d ecision failed to invoke § 1003.15(d)(1), either by its

name or b y its log ic, this court cann ot rely on it to affirm. E.g., Navas v. I.N.S. , 217 F .3d 646, 658 n.16 ( 9th Cir. 2 000) (holding that we cannot affirm the B I A “on a g round upon which it did not rely ”). 1

Moreover, the N TA itself never mentions § 1 003.15(d)(1)

or otherwise p uts aliens on n otice tha t a n N TA with an incorrect address is their p roblem. Rather, th e N TA warns aliens that they will b e r e m oved in absentia if they f ail to appear and that the “g overnment shall not be required to provide [ them] with written n o t i c e ” if they f ail to provide a current address or fail to notify the g overnment when they

move. 2 This tracks the st atutes b ut not the reg ulation. I t

1 T h e dissen t arg u es th at th e P etitio n er h ad an o b lig atio n to p ro v id e h er ad d ress in w ritin g to th e ag en cy

. D issen tin g O p i n i o n , p p

. 1 5

– 1 6

. Ho w ev er, n eith er th e B IA n o r th e Im m i g ratio n J u d g e raised th is i ssu e, th eref o re, sim ilar to t h e reg u lato ry in v ocatio n of § 1 0 0 3 .1 5 (d )(1 ), th is Co u rt can n ot af

fi r m t h e B IA o n g ro u n d s u p o n w h ich it d id n o t rely

. Fu rth erm o re, th e g ov ern m en t ’ s b rief d id n o t raise th e w ritten ad d ress issu e, th u s it i s w aiv ed

. See So la v. H o ld er , 7 20 F.3 d 1 1 3 4 (9 th Cir. 2 0 1 3 ).

2 T h e w h o l e w arn i n g read s:

Fa ilure to a ppea r: Yo u are req u ired to p ro v id e th e DHS, in w

ritin g , w ith y o u r f

u l l m ailin g ad d ress an d telep h o n e n

u m b e r

. Yo u m

u st n o tif y th e Im m ig ratio n Co u rt im m e d i a tely b y u sin g F o rm EOIR- 3 3 w h en ev er y o u c h a n g e y ou r ad d ress o r t elep h o n e n u m b er d u rin g th e co u rs e o f th i s p ro ceed in g

. Yo u w ill b e p ro v i ded

w ith a c o p y o f th is f

o rm

. No tices o f h earin g w ill b e

m ailed to t

h is ad d ress. If y o u d o n o t su b m i t Fo r m EOIR- 3 3 an d d o n o t o t

h erw i se p ro v id e a n a d d ress at

w h ich y o u m ay be reach ed d u rin g p ro ceed in g s, t h en th eV E L A S Q U E Z -E S C O V

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. H O L D E R 12

never say s any

thing like “if the address listed on the front of this form i s incorrect, it is y our responsibility to notify the immig ration court.”

And this omission may precl ude the g overnment from relying on the reg ulation in cases like this. According to the B I A, aliens cannot b e held to the two statutory o blig ations until the g overn m ent g ives them n otice of those o blig ations by serving the NTA. In re G-Y -R-
, 23 I

. & N. D e c

. 1 8 1, 184–86 (B I A 2001) (en banc). I n o ther w ords: no notice, no oblig ation. 3 B y that log ic, even a liens who have been served

an NTA cannot be held to the add r ess oblig ation in § 1003.15(d)(1) because the N TA does not mention it. Thus,

even if the B I A had relied o n § 1003.15(d)(1) here, the B I A ’s own precedent would still compel us to reverse.

Nex t the g overnment relies on dicta i n Hamazaspyan v

. Holder

, 590 F .3d 7 44, 746 n.3 (9th Cir. 2 0 0 9 )

. T here, the immig ration court sent a mis-addressed h ea ring notice to Hamaz aspy an and no n o t i c e at all to h is lawy er. H a m a zaspyan , 590 F .3d at 7 45–46. N either appeared, a n d Hamaz aspy an was ordered removed in a bsent ia. Id. The I J and B I A d en i e d his motion to reopen, but w e g ranted his

Go v e r n m en t sh all n o t b e req u ired to p ro v id e y o u w i th

w ritten n o tice o f y o u r h earin g

. If y o u f ail to atten d th e h earin g at t

h e tim e an d p lace desig n ated o n th is n o tice,

o r an y d ate an d t im e later d irected b y th e Im m ig ratio n Co u rt, a r e m ov al o rd er m ay b e m ad e b y th e i m m i gr a tio n j u dg e i n y o u r ab sen ce, an d y o u m ay b e arrested an d d etain ed b y

th e DHS.

3 T h e d issen t p o i n t s o u

t a d istin ctio n w i th o u

t a d if f eren ce w i t

h resp ect to th e f acts i n In re G-Y-R-

. S

ee Dissen tin g Op i n i o n , p .1 7

– 1 8

. A d ef ectiv e

n o tice an d n o n o tice b o th am o u n t to n o n o tice.V E L A S Q U E Z -E S C O V

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. H O L D E R 13

petition for review, holding “that serving a hearing notice on

an a lien, but not o n the alien’s c ou n s e l o f record, is insufficient . . . .” Id. at 749.

The g overnment does n ot rely on this holding

. Rather, it points to a footnote whe r e w e rejected Hamaz a spy an’s alternative a

rg ument: “[ E ] v en if Hamaz aspy an provided the
g overnment w ith his c orrect address, a nd the g overnment ag ents in co rrectly transcribed what he said, H amaz aspy an would not b e entitled to relief because he failed to correct the mistake when it was b roug h t to his, or his counsel of record’s, attention.” Id. a t 746 n .3. Bu t t h e BI A did not r e ly on Hamazaspyan

. So, for the same re a son that § 1 003.15(d)(1)
cannot s a v e the g overnment, neither can Hamazaspyan

. Navas , 217 F .3d at 658 n.16.

F inally

, the g overnment attempts t o w i n by analog y

. I t say s that this case—where an alien f a i led to correct her address—is like cases where asy lum applicants fail to correct their o wn false testimony

, Ahir v. Muka s e y , 527 F .3d 912, 918 (9th Cir. 2008), or the false testimony of their witnesses, Singh v

. H

older

, 643 F .3d 1178, 1182–83 (9th Cir

. 2011). B ut—ag ain—the B I A did not rely on thi s a nalog y , so we cannot either. Navas
, 2 17 F .3d at 658 n.16. Nor would we if

we could. The analog y does not work because deception a nd carelessness are two different thing s.

V

Althoug h we hold that Velasquez was entitl e d to notice,

we u n d e rstand why the I J
, the B I A, and the g overnment pressed the o pposite result. W hat makes that result so attractive is that it would have been so easy f or Velasquez to notice the error on the NTA and so e a sy for her to correct it.V E L A S Q U E Z -E S C O V

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. H O L D E R 14

A l i t t le dilig ence and common sense on her part could hav e avoided this appeal. B ut neither dilig ence nor common sense

are not i c e

. Notice is notice. And, u nder the circumstances here, Velasquezwas entitled to notice.

P ETITION G RANTED.

RAW L I NSON, Circuit J udg e, dissenting :

I respectfully dissent. Apply ing a n abuse of discretion standard of review, I

would deny

the petition.

W h en ru l i n g on a motion to r eopen immig r ation proceeding s, the B oard of I mmig ration Appeals (B I A) abuses i t s d i s c retion if it acts in an arbitrary or irrational fashion, renders a decision that is contrary to g o verning la w, o r neg lects to g ive a reasoned ex p lanation for its decision. See Movsisian v. Ashcroft , 395 F .3d 1095, 1098 (9th Cir. 2005).

The majority a c c u ses the B I A of “discount[ ing ] P et itioner’s unrefuted claim without providing a reason.” Majority Opinion
, p. 6. Yet, two pag es la t er, the majority articulates two reasons g iven by the B I A for its decision. See id

. , p. 8

. I n any event, there was nothing irrational o r arbitrary a

bout placing the burden u p o n Petitioner o f providing written notice of her address to th e immig r ation authorities. I ndeed, as the majority acknowledg es, there is a reg ulation that so provides. See Majority O p i n i o n , pp. 10 (referencing 8 C.F. R

. § 1003.15(d)(1)). Althoug h the majority c oncludes that the reg ulation ha s n o place in our analy sis of this case, I disag r e e

. I n any e vent, the B I A could
not act arbitrarily or ir r a t ionally by imposing a n oblig ationV E L A S Q U E Z -E S C O V

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. H O L D E R 15

that has been memori a l iz ed in a reg ulation. F o r the same reason, the decision of the B I A was not contrary to g overning law. F inally

, the B I A g ave a reasoned ex planation for i ts ruling

. Cf. Movsisian
, 3 9 5 F.3d at 1098 (“Here the B I A d e n ied Movsisian’s motion to reopen stating in toto: ‘ T h e respondent’s motion to reopen is denied. . . .’”).

Nevertheless, the majority d e t e r m i n e s that the B I A abused its discretion, r ely ing p rimarily on the Petitioner’s a sse r t i on t h a t during an interview with B order Patrol ag e nts, s h e verbally pr o v i d ed a new address to the ag ents. 1 Rather than sending the NTA to the address verbally provided b y Petitioner, the Depar tment o f Homeland Security sent the
not i c e to the address that w as in the ag ency files. I t is this

occurrence that the ma

j o rity relies upon to support its conclusion that the B I A abused its discretion when it denied Petitioner’s motion to reopen.

I n my v iew, the majority ’ s analy sis ig nores the Petitioner’s oblig ation to p rovide her current a d dress to the
ag ency in writing
, a

nd absolved her of the ob lig ation to provide an add r e s s in writing upon service of the NTA. These requirements are fatal to Petitioner’s case.

As the majority notes, 8 U .S.C. § 1229(a)(1)(F )(i) provides th a t the alien must, upon service of the NTA “provide (or h ave provided) t h e Attorney General with a

wr itten record of a

n address

. . . at which the alien may be contacted re s p e c t ing [ r emoval] proceeding s

. . .” (emphasis

1 C h aracterizin g th is in terv iew as “ th e ou tset o f [P etitio n er’ s] rem o v a l
p ro ceed in g s,” is so m ew h at h y p erb o l ic. W e a l l k

n ow th at rem o v al
p ro ceed in g s co m

m en ce w ith th e f

ilin g o f a N o tice to A

p p ear (NT A ). S

ee S a ma yo a -Ma rtin ez v. Ho ld

er , 5 5 8 F.3 d 8 9 7 , 9 0 1

– 0 2 (9 t h Cir. 2 0 0 9 ).V E L A S Q U E Z -E S C O V

A R V

. H O L D E R 16

added). The wisdom of r equiring a writte n r ec o r d of the address is d emonstrated b y the inconclusive he said-she said
nature of the dispute i n this case. I t is undisputed that the petitioner f

ailed to provide a written record of the address that she maintains should have been used.

I am also persuaded that when p etitioner received th e NTA which c ontained an incorrect address, it was incumbent
up o n her to notify the ag e n cy o f her correct address. As the majority acknowledg es, the NTA c ontains a warning that the alien is “required to provi d e the DHS, in writing with [her] full mailing address and telephone number

. . .” Majority Opinion
, p. 1 1 n

. 2 (emphasis added). The majority also confirms that 8 C.F .R. § 1 003.15(d)(1) provides that if the address o n the NTA is incorrect, it is the alien’s oblig ation to provide a c orrect address. S e e id

., p. 10. Nevertheless, the majority absolves Petitioner o f her oblig a tion for two reasons: 1) the B I A did not rely on the reg ulatio n i n r e n dering its decision, and 2) the NTA d id not a dequately inform Petitioner of her o blig ation to correct the a d d ress. See M

ajority Opinion , pp. 10–12.

I am not persuaded to join the absolution. That th e BI A did n ot cite the re gu l a t i o n in its decision does not constitute

an abuse o f discr e t i o n

. Rather, our focus is on whether the decision was contrary to g overning law. See Movsisian
, 395 F .3d at 1098. 2 I t was n o t. T h e NTA warns that the recipient

2 Fo r th e sam e reaso n , I d isag ree w ith th e m aj o rity ’ s r e j e c t i o n of th e g o v ern m en t’ s citatio n to th e altern ativ e ru lin g in Ha ma za sp ya n v. H o ld er , 5 9 0 F.3 d 7 4 4
, 7 4 6 n .3 (9 th Cir. 2 0 0 9 ). T h e m aj o rity tak es th e p o s itio n th at b ecau se th e B IA d id n ot ex p licitly qu o te th e g ov ern in g reg u latio n o r case

au th ority

, P etitio n er’ s lack o f co m p lian ce w ith th e reg u latio n m u st b e

ex cu sed

. Ho w ev er, o u r r ev iew is o f th e “ g ro u n d s” u p o n w h ich th e B IA

m ad e its d ecisio n

. S

ee Va rg as-Hern a n d

ez v. Go n za lez

, 4 9 7 F.3 d 9 1 9
,V E L A S Q U E Z -E S C O V

A R V

. H O L D E R 17

must provide the DHS
, in writing

, the recipient’s mailing address. I f the mailing address noted on the NTA is i n c orrect, the direction to p rovide the address in writ i n g

s hould r esonate even more strong ly with the recipient. I n addition, I do not ag ree that the B I A f ailed to invoke the log ic of the reg u lation in its decision. The B I A decision noted that Petitioner was “on notice throug h the [ invalid] a ddress on the NTA and the advi s a l i n c luded with it that she had a duty to notify the I mmig ration Court of h er c u rrent address.

. . . ” (emphasis added). The decision also reasoned th a t “it was incumbent on [ Petitioner] to e n sure that a correct address was supplied to the I mmig r ation Court a fter she wa s p e rsonally served w ith the [NTA] containing the aforementi o n ed advisal.

. . .” There w ould b e n o r e a son for the decision to refer to notify ing the I mmig ration Court of a current address and to supply ing a correct a ddress unless the B I A was referring to the non-current a n d inc orrect address on the NTA. B e cause this reference reflects the requirements of the
reg ulation, there was no abuse of discretion. See Movsisian
, 395 F .3d a t 1098 ) (holding that the B I A abuses its discretion when it acts contrary to the law). I ndeed, as the majority concedes, the g o v erning reg u lation “fits the situation here.

. . .” Majority Opin ion
, p

. 10. B ecause the reg ulation fits, the B I A decision could not be contrary to it, and n o abuse of discretion d eterminat i o n can rationally be predicated on that premise.

F inally

, I d isag ree with the majority ’s reliance on In re GY

- R
, 23 I & N Dec. 1 8 1 (B I A 2001) (en banc) to absolve Petitioner of her oblig ation to provide, in writing

, her current

9 2 1

– 22 (9 th Cir. 2 0 0 7 ). A n d it is u n q u estio n ed th at th e “ g ro u n d ” u p o n

w h ich th e B IA based its d ecisio n w as P etitio n er’ s f ailu re to g iv e th e n otice
as req u ired b y

law

.V E L A S Q U E Z -E S C O V

A R V

. H O L D E R 18

address to the ag ency

. That c a se involved a different circumstance, notably a complete failure to serve the NTA
upon th e a l i en. I n that c ircumstance, the B I A ruled that an alien may not be removed in absentia

when the Service mails the [ N TA] t o the last address i t has on file for an alien, but the record reflects that t h e al ien d id not receive the [ N TA]
, and the n o t i c e of hearing it contai n s, and therefore has never been
not i f i e d o f t h e initiation o f removal proceeding s o r the alien’s address oblig ations under . . . the Act. . . .

Id . at 192.

I n contrast to the facts in G-Y -R
, it is unquestioned that Petitioner received the NTA and the notice of h earing notify ing her of the re m o v a l proceeding s and of her oblig ation to notify the ag ency , in wri t i n g , of her current address. G -Y

-R simply does not support a determination that the B I A abused its discretion in deny ing Petitioner’s motion to reopen.

B e cause the B I A did not act in an arbitrary o r i rrational fashion, rul e contrary to law, or n eg lect to g ive a reasoned

ex p lanation for its d ecision, the denial of th e m o t i o n to

re open did n ot constitute an abuse of discretion. See Movsisian
, 3 9 5 F .3d at 1098. I would d eny the petition for review.