BIA: 18 Years Is Too Long for Alien to Wait to Update His Address

Why there are almost 600,000 alien absconders, and a helpful PSA

By Andrew R. Arthur on August 19, 2020

The Board of Immigration Appeals (BIA) issued a decision earlier this month in Matter of Nivelo Cardenas, a case dealing with an alien's failure to comply with proper notice of a scheduled removal hearing. It is emblematic of the problems that ICE faces in removing aliens from the United States — even aliens under in absentia orders of removal.

Here are the facts: The respondent, a native and citizen of Ecuador, apparently entered the United States illegally in July 1999, and was shortly thereafter arrested by the INS. INS agents served him with a Notice to Appear ("NTA", the charging document in removal proceedings).

Included with the NTA were documents informing the respondent that he had to appear for his removal proceedings and to provide the immigration court with his correct address, to be updated if he were to move. Such notifications are required under section 239 of the Immigration and Nationality Act, which governs the initiation of removal proceedings.

Here is where it gets interesting. INS released the respondent on August 17, 1999. Before he was released, he signed a Form I-830, promising to report any change of address, and verifying that he lived at a specific street address in Patcbogue, N.Y. The problem is, there is no "Patcbogue" in New York, but there is a "Patchogue" — where the respondent apparently actually resided. He also (ostensibly) provided the agents with a zip code.

In October 1999, the immigration court sent the hearing notice to Patcbogue, and got it back thereafter stamped "ATTEMPTED, NOT KNOWN", with the handwritten notation: "Please return to sender." I personally am familiar with this scenario, as I often get mail sent to one of the five addressees who lived in my suburban Virginia apartment before me. I regularly have to write those words on what appear to be important, incorrectly delivered, mailings.

The respondent did not appear at his January 28, 2000, removal hearing, and was ordered removed in absentia. Unlike the hundreds of thousands of alien absconders under final orders of removal in the United States, ICE actually attempted to execute that order, sending him a "bag and baggage letter" ("B&B", also known informally — in a kind of gallows humor — as a "run letter", because it informs a removable alien that ICE is looking for him or her). It was sent to "Patchogue", N.Y.

The B&B told the respondent to appear at a time and place certain for removal. Of course, he did not do so, but instead filed a Motion to Reopen with the immigration court on November 19, 2018, asserting that he did not receive notice of the January 2000 hearing because it was improperly addressed. He specifically referenced the "Patcbogue"/"Patchogue" discrepancy, and contended that he had in fact provided the correct address, pointing to the B&B.

The immigration judge denied that motion, and the respondent appealed to the BIA. By statute, in order to have his proceedings reopened in accordance with his untimely motion (motions to reopen must be filed within 90 days of the removal order, in most cases), the BIA would have needed to find that the respondent "did not receive notice" of the hearing. They did not do so, denying the motion to reopen.

Specifically, they held that, inasmuch as the respondent received personal service of the NTA informing him that he was obliged, by statute, to report his address correctly, his failure to do so was his fault, and not the government's.

In this instance, the BIA had the I-830 showing that he told INS that his address was in "Patcbogue", and signed a form that confirmed "Patcbogue" was his correct address — again, the address to which the hearing notice was sent. While that was legally sufficient grounds for the BIA to deny the motion, it also referenced the returned hearing notice, concluding that the handwritten notation on it showed that it had been delivered and that "someone who received mail at that address requested that it be returned to sender."

The BIA held that even if the respondent had "inadvertently" given INS the wrong address, it was his responsibility to correct the error, as he was on notice to do so. It also dismissed his contention that he had actually provided the correct address (pointing to the address on the B&B), finding no proof that he had actually given the INS that correct address to begin with.

My take: More likely than not, some local officer looked at the address when he or she was assigned the alien's removal, realized there was no such town, and sent it (successfully) to the correct address.

In an interesting assertion, the respondent claimed that he had gone to his mailbox every day for 18 years, just waiting for his hearing notice, but that it never came. The BIA was having none of it, concluding (somewhat understatedly) that respondent's "failure to update his address for over 18 years indicates a lack of due diligence" and therefore "may properly be found to undermine the veracity of his claim that he has taken actions to maintain his rights in the underlying removal proceedings."

There are a number of takeaways here, not just for aliens in removal proceedings, but for anyone in their own personal dealings (particularly with the government).

First, make sure that you read every piece of paper that any official — government or otherwise — hands to you. If you don't understand it, ask them to explain.

Second (and relatedly), don't sign any document (NTA, contract, Apple IPhone update, etc.) unless you have read it thoroughly.

Third, I will admit that certain commercial entities don't always make it easy, providing you with statements thousands of words (and tens of pages) long to sign or agree to. I am not telling you that it is okay to just click the "I agree" button in such cases, but rather that should you do so, it is at your own risk. Apple, Amazon, Facebook, and any number of other entities employ massive legal departments to fly-speck such documents, and they will be used against you in a court of law if you later complain.

In this case, however, I have reviewed thousands of NTA packets, and the documents therein are pretty straightforward. I know that aliens seeking release will sign anything to get out, but it is their right to be told of their other rights and obligations before they sign anything. It is ICE's obligation to do so, and as, by law, government employees are assumed to have done their jobs correctly, later complaints will likely fall on deaf ears.

Fourth, should an alien (or anyone else for that matter) sign a document without asking for an explanation, the alien should immediately show that document to someone else to have it explained to him or her. Once more, it is their fault if they don't.

Fifth, if you are expecting some sort of notification from the government and don't get it within a reasonable time, start bugging every bureaucrat you can find to determine where it is.

For example, I recently bought a car and was waiting for the title. When it did not arrive in a couple weeks, I fired up the phone lines to the dealership and the Virginia DMV, making myself a pest until I got an answer. Better to do so than to explain myself later to a state trooper on the side of a busy highway. The same goes double for an alien facing removal in dealing with an ICE officer.

With that PSA out of the way, however, this case shows why there were 595,430 alien absconders in the United States as of the end of FY 2019, and why it is so difficult for ICE to remove them. Here, it took the agency 18 years to get around to attempting to remove Nivelo Cardenas, but at least they did so eventually, sending him a B&B for his removal.

That left him four options: (1) Comply and appear; (2) Ignore the notice and stay put; (3) Relocate as soon as possible; and (4) File a motion to reopen.

Options two and three require ICE officers to subsequently try to locate the alien, find the alien, and pick him or her up. Those are labor-intensive activities, and Congress (to its shame and discredit) has deliberately chosen to starve the agency of resources (when its members are not simply asking that it be abolished). That means that there are nowhere near enough officers to deal with absconders — but again, ICE is trying.

Obviously, the respondent chose option number four. Note that his motion to reopen was filed 21 months ago, giving Nivelo Cardenas almost two extra years in the United States — ostensibly in unlawful status. And he now still has options one through three available to him.

Ideally, he will simply comply and return to Ecuador. There are no guarantees that he will do so, however. With due respect to my boss, I hate to agree with the sentiment "It Ain't Over 'til the Alien Wins". Unfortunately, all too often, it isn't.