United States Court of Appeals

For the First Circuit 

No. 14-1766 

 ALAN SOARES RENAUT, 

 Petitioner, 

 v. 

 LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL,*

 Respondent. 

PETITION FOR REVIEW OF AN ORDER OF THE 

BOARD OF IMMIGRATION APPEALS 

Before 

Howard, Thompson, and Barron, 

Circuit Judges. 

William P. Joyce, with whom Joyce & Associates P.C. was 

on brief, for petitioner. 

Kiley Kane, Senior Litigation Counsel, Office of 

Immigration Litigation, United States Department of Justice Civil 

Division, with whom Joyce R. Branda, Acting Assistant Attorney 

General, and Julie M. Iversen, Senior Litigation Counsel, were on 

brief, for respondent. 

 * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General 

Loretta E. Lynch has been substituted for former Attorney General 

Eric H. Holder, Jr. as the respondent. 
June 3, 2015 
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THOMPSON, Circuit Judge. Alan Soares Renaut is a 

Brazilian citizen who unlawfully entered the United States, was 

detained at the Arizona border, failed to attend his deportation 

hearing, and was ordered by an immigration judge ("IJ") to be 

removed from the country. Renaut, who claims he was never notified 

that his removal hearing had been scheduled, asked an IJ to reopen 

his case. The IJ declined, and on its appellate review, the Board 

of Immigration Appeals ("BIA") affirmed the IJ's denial. 

Now on appeal, Renaut argues that the IJ applied the 

wrong legal standard in reviewing his motion, and that when its 

turn came around, the BIA ignored the IJ's error and engaged in 

its own (impermissible) factfinding to affirm. 

We agree that the IJ dropped the ball and applied the 

wrong legal standard in reviewing Renaut's motion (albeit a 

different legal error from the one Renaut identified). The BIA 

likewise missed by affirming the IJ based on that incorrect legal 

principle. Therefore, we vacate the BIA's decision and remand 

Renaut's case to the BIA. 

BACKGROUND 

The relevant facts are undisputed. Renaut is a native 

and citizen of Brazil who entered the United States through the 

Arizona-Mexico border in January 2003 without being inspected by 

an immigration officer. He was detained upon entry and, while 
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detained, personally served with a Notice to Appear before the 

Immigration Court in Florence, Arizona, for a to-be-scheduled 

removal hearing. The notice charged Renaut with removability, 

pursuant to the Immigration and Nationality Act ("the Act"), which 

provides that "[a]n alien present in the United States without 

being admitted or paroled, or who arrives in the United States at 

any time or place other than as designated by the Attorney General, 

is inadmissible." 8 U.S.C. § 1182(a)(6)(A)(i). The notice also 

warned: "You are required to provide the [government], in writing, 

with your full mailing address . . . . You must notify the 

Immigration Court immediately by using [a change of address form] 

whenever you change your address . . . during the course of this 

proceeding."

Renaut was detained for about two months before being 

released from a detention facility. On March 3, 2003, he asked 

that his case be moved to the Boston Immigration Court. In his 

written motion, which was filed on his behalf by a representative,1

Renaut stated that "[h]earing notices and other documents may be 

sent to the respondent at . . . 6 Corregidor Rd." in Framingham, 

 1 We refer to Renaut's counsel as a "representative" because 

Renaut now questions whether the person paid to represent him was 

actually an attorney.
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Massachusetts. The motion was allowed on March 14, 2003, and 

Renaut's case was transferred. 

On January 28, 2004, the Boston Immigration Court mailed 

a notice to the Corregidor Road address to inform Renaut that he 

was scheduled to appear for a removal hearing on March 2, 2004. 

According to Renaut, he lived at the Corregidor Road home with a 

friend for a few months after his release, but even after moving 

out, continued to receive and collect his mail there. The friend's 

sworn statement conveyed the same story. The hearing notice was 

returned to the court, however, with a stamp on the envelope that 

read, "ATTEMPTED, NOT KNOWN."2 Renaut thus did not receive the 

hearing notice, and did not appear for the hearing. An immigration 

judge in absentia ordered his removal from the United States to 

Brazil. 

Fast-forward eight years. In February 2012, Renaut 

married his now-wife, who is a United States citizen. She filed 

a form I-130 Petition for Alien Relative on her hubby's behalf 

(U.S. citizens and lawful permanent residents may file this type 

of petition to help certain relatives become lawful permanent 

residents). On April 9, 2013, Renaut also asked an immigration 

 2 According to the government (and undisputed by Renaut), 

"attempted, not known" means that delivery was attempted, but the 

addressee was "not known" at the address. 
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judge to reopen the removal proceedings in light of his pending I130 petition so that he could ask for adjustment of status to 

voluntary departure, arguing that he never received the removal 

hearing notice. 

On April 30, 2013, the immigration judge denied the 

motion to reopen. The IJ found that Renaut was "made aware of his 

obligation to immediately notify the Immigration Court when he 

changed his address . . . and he failed to do so." The IJ then 

found that "although the hearing notice was returned to the Court 

as undeliverable, it had been sent to the Respondent at his last 

known address," and denied the motion. 

Renaut appealed to the BIA, arguing that the IJ "failed 

to appreciate the distinction between the regulatory standards 

that govern the entering of an in absentia removal order and the 

requirements" to reopen one. The BIA nonetheless affirmed the 

immigration judge's denial because reopening the case was "not 

warranted on account of lack of notice," given that Renaut "evaded 

delivery of a properly sent [hearing notice] by relocating without 

providing the required change of address." 

This appeal followed. 

STANDARD OF REVIEW 

"In the immigration context, judicial review ordinarily 

focuses on the BIA's decision." Jianli Chen v. Holder, 703 F.3d 
- 5 - 

17, 21 (1st Cir. 2012). "But where, as here, the BIA adopts 

portions of the IJ's findings while adding its own gloss, we review 

both the IJ's and the BIA's decisions as a unit." Id. (citation 

omitted). 

"We review the . . . denial of a motion to reopen for 

abuse of discretion." Chen v. Gonzales, 415 F.3d 151, 153 (1st 

Cir. 2005) (citation omitted). "The agency's resolution of such 

a motion will stand unless that resolution rests on a material 

error of law or a manifestly arbitrary exercise of judgment." Meng 

Hua Wan v. Holder, 776 F.3d 52, 56 (1st Cir. 2015). 

DISCUSSION 

As Renaut's Notice to Appear warned, when facing removal 

proceedings, an alien must "immediately provide (or have provided) 

the Attorney General with a written record of an address . . . at 

which the alien may be contacted respecting [removal] 

proceedings." 8 U.S.C. § 1229(a)(1)(F)(i). An alien must also 

keep his address current by "provid[ing] the Attorney General 

immediately with a written record of any change of the alien's 

address." Id. § 1229(a)(1)(F)(ii). These address requirements 

are important because the Act allows the Immigration Court to serve 

notices to appear (and other subsequent notices of scheduling 

changes) to an alien "through service by mail." Id. § 1229(a)(1). 
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Serious consequences can ensue for an alien who does not 

comply with the address reporting requirements. The Act provides 

that "[n]o written notice [of a removal hearing] shall be required 

. . . if the alien has failed to provide the address required under 

section 1229(a)(1)(F)." Id. § 1229a(b)(5)(B). And failing to 

appear for a removal hearing means that the presiding immigration 

judge must order the alien's removal in absentia, so long as "the 

[government] establishes by clear, unequivocal, and convincing 

evidence that the written notice was so provided and that the alien 

is removable." Id. § 1229a(b)(5)(A). The Act assumes that the 

government has met this evidentiary burden if it can show that 

notice was sent by regular mail and "there is proof of attempted 

delivery to the last address provided by the alien in accordance 

with subsection (a)(1)(F)." Id. § 1229(c). 

Despite this presumption of effective delivery written 

into the statute, the Act does recognize that even if a notice was 

properly sent to someone's last-reported address, he still might 

not receive it. Upon motion, then, an immigration judge may 

rescind an in absentia removal order "if the alien demonstrates 

that [he] did not receive notice in accordance with [§ 1229(a)(1) 

or (2)]."3 Id. § 1229a(b)(5)(C)(ii). Thus, an alien's case could 

 3 An immigration judge could also rescind "upon a motion to 

reopen filed within 180 days after the date of the order of removal 
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be reopened if he failed to receive notice, so long as he complied 

with the statute's address requirements. "[W]hen considering a 

motion to reopen, the central issue is no longer whether the notice 

was properly mailed, as it is for the purpose of initially entering 

the in absentia order, but rather whether the alien actually 

received the notice." Matter of M-R-A-, 24 I. & N. Dec. 665, 672 

(B.I.A. 2008) (citing Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir. 

2006)). 

Renaut's notice was returned to the Immigration Court, 

and thus, the government admits that Renaut did not receive his 

notice. Non-receipt does not, however, end the inquiry. The BIA 

has said, for instance, that an alien can't hide the ball when it 

comes time to appear in court, meaning he "cannot evade delivery 

of a properly sent Notice of Hearing by relocating without 

providing the required change of address and then request reopening 

of in absentia proceedings on the basis of a claim that he did not 

receive notice." Matter of M-R-A-, 24 I. & N. Dec. at 675. Here, 

the IJ (and then the BIA) relied on this "no evasion" rule to deny 

Renaut's motion. In response, Renaut contends that even though he 

did not update his address after moving from the Corregidor Road 

 

if the alien demonstrates that the failure to appear was because 

of exceptional circumstances," 8 U.S.C. § 1229a(b)(5)(C)(i), but 

Renaut has not raised such an argument on appeal. 
- 8 - 

address, he was not evading notice because he continued to receive 

mail there after moving out. 

The IJ did not address this assertion, but denied 

Renaut's motion on the ground that he did not comply with his 

obligation to notify the Immigration Court when he "changed his 

address," and that "although the hearing notice was returned to 

the Court as undeliverable, it had been sent to the Respondent at 

his last known address." The BIA took a similar tack and assumed 

(without deciding) that Renaut was telling the truth when he said 

"his friend continued to reside on Corregidor Road and was able to 

receive mail for him." Even still, the BIA decided, Renaut's case 

could not be reopened because his Notice to Appear "properly 

advised the respondent that he was required [to provide] 'your 

full mailing address' (as opposed to the mailing address of a 

friend)," and because Renaut did not provide his residential 

address, he evaded notice.

According to both the IJ and BIA, then, Renaut could not 

have his case reopened because he never bothered to provide the 

government with his new residential address after he physically 

moved from the Corregidor Road home. Relocating without providing 

an updated residential address -- even if a valid mailing address 

is still on file -- categorically amounts to evasion of a hearing 

notice, the IJ and BIA assumed. 
- 9 - 

We conclude that the IJ and BIA abused their discretion 

in so deciding, and that a remand is the appropriate relief to 

cure the error. While evasion is certainly a legitimate reason to 

deny a motion to reopen, "evasion" by its nature entails some 

wrongdoing, i.e., some effort to actually avoid the notice. See 

Sanchez v. Holder, 627 F.3d 226, 233 (6th Cir. 2010) 

("[P]roceedings will not be reopened if the alien fails to receive 

a hearing notice because the alien's own conduct made him or her 

unreachable."). Particularly concerning is that the BIA does not 

offer any authority to support its generally-applicable contention 

that Renaut was required to provide a residential address (as 

opposed to a valid mailing address), such that he has committed 

some lawlessness by his mere failure to provide a residential 

address. 

It is also not apparent to us why the BIA (and the 

government in its briefing) assume "address" means residential 

address. Renaut's Notice to Appear informed him that he was 

"required to provide . . . your full mailing address," and that he 

would have to "notify the Immigration Court immediately by using 

[a change of address form] whenever you change your address . . . 

during the course of this proceeding." (Emphasis added). The 

notice mentions nothing of a residential or physical address 

requirement. Likewise, the Act makes no indication that a physical 
- 10 - 

address is required. See 8 U.S.C. § 1229(a)(1)(F)(i) (requiring 

alien to provide an address where he "may be contacted respecting 

[removal] proceedings"); id. § 1229(a)(1)(F)(ii) (requiring alien 

to "provide . . . a written record of any change of the alien's 

address"). We are aware of no BIA precedent explaining that 

"address" is defined as a residential one in this context. The 

government even admitted at oral argument that an alien could be 

permitted to provide, for instance, a post office box number where 

he could be contacted. Thus, we simply do not see the basis for 

the BIA's brusque conclusion that Renaut "evaded" his hearing 

notice merely because he asked that his removal communications be 

sent to what he claims was a valid mailing address, as opposed to 

his (ever-changing) abode. See also Arrieta v. I.N.S., 117 F.3d 

429, 432 (9th Cir. 1997) (per curiam) (stating that the BIA erred 

by requiring petitioner to provide a residential address, even 

though she provided a valid mailing address); Mecaj v. Mukasey, 

263 F. App'x 449, 451 (6th Cir. 2008) (unpublished) (concluding 

that petitioner "may present evidence that he normally would 

receive correspondence at that location, yet did not receive 

notice"); Gomez-Palacios v. Holder, 560 F.3d 354, 361 (5th Cir. 

2009) (finding that petitioner was not entitled to rescission 

because "his failure to receive actual notice of the time of his 

postponed hearing was the result of not complying with his 
- 11 - 

obligation to keep the immigration court apprised of his current 

mailing address" (emphasis added)). 

Along similar lines, we likewise reject the government's 

reading of § 1229a(5)(B). The Act provides that "[n]o written 

notice shall be required [to remove an alien in absentia] if the 

alien has failed to provide the address required under section 

1229(a)(1)(F) of this title." 8 U.S.C. § 1229a(5)(B). The 

government assumes this provision of the statute means that an 

alien is not entitled to notice at all if he changes his 

residential address without informing the Immigration Court. 

Under the government's reading, then, an alien in 

Renaut's situation is outright precluded from arguing that his 

removal proceeding should be reopened for failure to receive notice 

because his physical relocation meant that he was no longer 

entitled to notice of the removal hearing at all. But, as we have 

explained, it is not at all clear that an alien fails to comply 

with the address requirement when he changes residence. And in 

any event, the statute still instructs the government to send 

notice to the alien's last known address, whatever that address 

may be. See 8 U.S.C. § 1229(c); accord Mecaj, 263 F. App'x at 451 

("[B]ecause [the alien] did provide an address, the government 

remained under an obligation to send notice to that address." 

(emphasis in original)). Thus, the mere fact that an alien has 
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changed his residential address neither categorically precludes 

that alien from moving to reopen his removal proceeding nor, once 

he does so, automatically compels a finding that he evaded notice. 

As we indicated above, evasion of a hearing notice is a 

perfectly legitimate reason to deny a motion to reopen. But 

whether Renaut "evaded" his notice is a factual determination that 

must be made upon an evidentiary evaluation. See Matter of M-RA-, 24 I. & N. Dec. at 674 (holding that "all relevant evidence 

submitted to overcome the . . . presumption of delivery must be 

considered"). Problematic here is that the IJ did not make 

sufficient factual findings that would allow us to affirm an 

evasion finding. Namely, Renaut provided evidence to show that he 

was still successfully receiving other mail at the Corregidor Road 

address, even after he moved out. Tellingly, and as the government 

conceded at argument, Renaut's actual removal order was sent to 

the Corregidor Road address and did not get bounced back, which 

suggests that Renaut was being truthful when he said that he could 

still receive immigration-related mail there. No mention of this 

evidence, or Renaut's other justifications for non-receipt, are 

mentioned in the IJ's factual findings. And while the BIA 

acknowledged Renaut's argument that his friend was able to receive 

mail for him at the Corregidor Road address, neither the IJ nor 

BIA made factual findings that resolved whether or not this 
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assertion was true.4 We therefore cannot meaningfully review the 

validity of Renaut's motion. See Rotinsulu v. Mukasey, 515 F.3d 

68, 73 n.1 (1st Cir. 2008) ("Typically, we have found the absence 

of specific findings problematic in cases in which such a void 

hampers our ability meaningfully to review the issues raised on 

judicial review."). This case is thus distinguishable from the 

cases the government relied on in its brief, where the petitioners 

did not receive their notices, which were sent to their last-known 

addresses, because they failed to update their addresses. Shia v. 

Holder, 561 F.3d 19, 20-21 (1st Cir. 2009) (per curiam); Shah v. 

Mukasey, 533 F.3d 25, 28 (1st Cir. 2008). As we have discussed, 

the IJ and BIA made no such finding in the instant case. 

 4 Indeed, the BIA could not have -- it generally is not 

permitted to make factual findings on appellate review. In Re 

Adamiak, 23 I. & N. Dec. 878, 880 (B.I.A. 2006) (citing 8 C.F.R. 

§ 1003.1(d)(3)(iv)). 

Relatedly, we already mentioned that Renaut's primary briefed 

argument concerning the BIA was that the BIA engaged in 

impermissible factfinding to conclude that he, as a factual matter, 

evaded delivery of the notice. But as far as we can tell, Renaut 

did not first raise the claim of impermissible factfinding to the 

BIA in a motion to reconsider, and so we do not have jurisdiction 

to consider that claim. See Meng Hua Wan v. Holder, 776 F.3d 52, 

57 (1st Cir. 2015) (holding that "we lack jurisdiction to hear and 

determine the petitioner's claim that the BIA engaged in 

impermissible factfinding" because that claim was "directed to the 

BIA's actions rather than to anything that happened before the 

IJ," and so first needed to be exhausted with the BIA). However, 

because we read the BIA's decision as adopting and affirming the 

IJ's material errors of law, as opposed to "giv[ing] rise to a new 

issue," id., we do not consider Meng Hua Wan a barrier to reviewing 

Renaut's appeal. 
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We recognize that both Renaut and the government might 

interpret the IJ and BIA decisions differently from the way we do. 

Recall that Renaut argued in his opening brief that the IJ applied 

the standard for a removal order (which focuses on whether a 

hearing notice was properly sent), as opposed to the standard of 

a rescission order (which rides on whether the hearing notice was 

received). Thus, Renaut claimed, the IJ never decided one way or 

another whether Renaut evaded his hearing notice. Renaut then 

urged that the BIA failed to recognize the IJ's error, and instead 

engaged in its own factfinding to conclude that Renaut evaded his 

hearing notice. Renaut changed course at oral argument, however, 

where his counsel additionally argued that the BIA erred in 

applying a blanket rule that anyone who does not provide an updated 

residential address has evaded notice. 

In the government's brief, it acknowledged that Renaut 

was penalized for failing to update his residential address, but 

argued that such a rule was proper under the language of the 

statute. At argument, though, the government also threw us a 

curveball, claiming there that the BIA's decision did not impose 

a categorical ban on motions to reopen when aliens provide only a 

valid mailing address. In fact, the government actually 

acknowledged that some aliens do not have a stable home address, 

so providing a friend's address or a post office box would be 
- 15 - 

appropriate in those situations. The problem with the instant 

case, the government argued, was that Renaut gave no explanation 

as to why he wanted his mail to go to Corregidor Road instead of 

his residential address, even after his friend moved. And that 

failure to explain amounted to evasion of his hearing notice, as 

a matter of fact, according to the government. 

As our discussion shows, we read the IJ and BIA decisions 

as concluding that as a legal matter, Renaut "evaded delivery of 

a properly sent" hearing notice simply because he failed to update 

his physical address, and that because of his evasion, he was not 

entitled to reopening. We believe this is the most sensible 

reading of the two decisions in concert, given that neither made 

factual findings that would allow for the conclusion that Renaut 

evaded his notice as a matter of fact. See Kurzon v. U.S. Postal 

Serv., 539 F.2d 788, 792 (1st Cir. 1976) ("'[W]e must look to (the 

agency's) opinion, not to the arguments of its counsel, for the 

underpinnings of its order.'" (quoting FTC v. Sperry & Hutchinson 

Co., 405 U.S. 233, 246 (1972))). To the extent we have 

misconstrued its intended holding, the BIA has the chance to 

clarify the basis of its decision on remand. 

Finally, the government also argues that even if Renaut 

did not have to provide his physical address, there was another 

reason to deny his motion -- the fact that he sat on the bench for 
- 16 - 

the near-decade that followed the entering of his removal, never 

bothering to follow up with the Immigration Court on when his 

hearing might be scheduled. Sure, in the portion of the decision 

addressing whether exceptional circumstances warranted reopening, 

the IJ did make factual findings that Renaut "failed to make 

diligent efforts to follow up regarding his removal proceedings," 

and that the record lacked evidence that Renaut took any steps to 

"follow up on his case during the more than ten years after his 

Motion to Change Venue to Boston was granted on March 14, 2003." 

But the BIA did not address that issue, and so we won't either. 

See Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004) ("[W]here 

the BIA's decision adopts portions of the IJ's opinion, we review 

those portions of the IJ's opinion that the BIA has adopted."). 

Specifically, while the BIA "ultimately conclude[d] that the 

Immigration Judge properly declined to reopen" based on 

exceptional circumstances, the BIA did not directly address the 

diligence issue, or state whether it agreed with or intended to 

adopt the IJ's factual findings in that regard. Particularly in 

light of our reservations as to whether the IJ considered all the 

evidence Renaut offered up to show that he complied with the 

address requirements, and the lack of factual findings as to 

whether or not he evaded his hearing notice, we still deem the 

appropriate course of action here a remand, which will at least 
- 17 - 

allow the BIA to clarify. See Kurzon, 539 F.2d at 792-93 (noting 

that while "we will accept less than ideal clarity in 

administrative findings," "we ought not to have to speculate as to 

the basis for an administrative agency's conclusion" (citations 

and quotations omitted)). 

For these reasons, we vacate the order of the BIA and 

remand the case for further proceedings consistent with this 

opinion.