The U.S. Court of Appeals for the Ninth Circuit recently issued an opinion in Urquia-Yanez v. Blanche, finding the petitioner — who was ordered removed in absentia when she failed to appear in immigration court removal proceedings — was not denied “due process” when neither DHS nor the court provided her a Spanish translation of a notice explaining her obligation to update her address with the government. It was a remarkably common-sense opinion from the notoriously “immigrant-friendly” circuit court.
Wendy Urquia-Yanez
The petitioner, Wendy Urquia-Yanez, is a Honduran national who was apprehended after she entered the United States illegally in April 2012 near Hidalgo, Texas.
She spent five days in DHS custody, and was released with a Notice to Appear (“NTA”, the charging document in removal proceedings, which is similar to a complaint in criminal court) charging her with removability under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA) as an alien present in the United States who had not been admitted or paroled.
That NTA informed Urquia-Yanez that she was scheduled to appear in immigration court in San Antonio, Texas, included the U.S. address that she had provided to DHS, in Hanford, Calif. (in the San Joaquin Valley south of Fresno, which is under the jurisdiction of the San Francisco Immigration Court, “SFR”), and which told her that if she moved, she needed to file a change of address with the government.
Thirteen days after she was released, the SFR immigration court mailed the alien a hearing notice at the Hanford address, telling her to appear at that court on February 28, 2013.
She failed to appear at SFR on the scheduled date and time and was ordered removed in absentia.
Eight years later, in May 2021, Urquia-Yanez filed a motion with SFR to reopen her case, arguing the NTA (not the SFR hearing notice) “was defective” as “it did not comply with the statutory requirement to provide the date and time for the hearing”, and consequently the immigration judge who ordered her removed “lacked jurisdiction to conduct the proceedings that culminated in her removal order”.
Alternatively, she argued, she should be excused for failing to show up on the hearing date in SFR because she had only remained in Hanford briefly before relocating to Visalia, Calif. (south of Hanford in the San Joaquin Valley), and was “was unaware of her obligation to inform the immigration court of her change of address and therefore could not be charged with constructive notice of documents sent to her prior address”.
The immigration judge denied that motion, but instead of appealing the denial, she filed a motion with the judge to reconsider the denial, contending again the SFR court lacked jurisdiction and that she didn’t know she was under an obligation to update her address.
The immigration judge denied that motion as well, finding she had constructive notice of the SFR hearing date that had been sent to her last known address and that the NTA had specifically warned her that she was required to update her address — which she failed to do when she moved to Visalia.
She appealed that denial to the Board of Immigration Appeals (BIA), arguing again that she didn’t receive notice of the February 2013 hearing and did not know she was required to update her address.
The BIA dismissed the appeal, finding (inter alia) that she received proper notice of the February 2013 hearing, which had been sent to her Hanford address.
In response (and showing an interest in her case that she had failed to demonstrate for the eight-plus years before her initial motion), Urquia-Yanez filed a petition for review with the Ninth Circuit under section 242 of the INA.
The Statutory Consequences of Failing to Appear in Removal Proceedings
Section 240 of the INA governs removal proceedings, and under paragraph (b)(5) therein, an immigration judge must order an alien (“respondent” in those proceedings) removed in absentia if the alien receives notice of the hearing and DHS “establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable”.
More specifically, that paragraph mandates the entry of an in absentia order if DHS, in accord with section 239(a)(1) of the INA, served the respondent with an NTA that included the time and place at which the removal hearing was scheduled to be held, or under section 239(a)(2), the respondent received notice from the immigration court of a change in the time or place that hearing would be held.
Pursuant to section 240(b)(5)(C) of the INA, an in absentia removal order may only be rescinded if: (1) the alien files a motion to reopen within 180 days, showing “exceptional circumstances” why the respondent was unable to appear; (2) the respondent shows he or she did not receive that notice required under sections 239(a)(1) or (2) of the INA; or (3) the alien was in federal or state custody and couldn’t attend.
That said, section 240(b)(5)(B) of the INA makes clear that proof of service of written notice of the hearing isn’t a requirement for an in absentia removal order if the respondent fails to file a change of address, provided DHS has complied with section 239(a)(1)(F) of the INA.
That provision requires DHS to warn respondents in the NTA that they “must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting” scheduling of the removal proceedings.
Simply, if DHS warns an alien in the NTA that the alien must provide a change of address, the alien fails to do so, and the hearing notice is sent to a place where the alien no longer resides, by statute the alien’s right to be notified of the hearing has been satisfied and the immigration judge must order the alien removed in absentia.
The Ninth Circuit Opinion
Urquia-Yanez’s petition was assigned to Judges Ryan Nelson (a Trump I appointee), Daniel Collins (ditto), and Lawrence VanDyke (the same).
She admitted that she failed to provide either the San Antonio immigration court or SFR with a change of address when she moved from Hanford to Visalia, and conceded that if she had been properly warned of her obligation to update her address, the hearing notice that was sent by SFR to her Hanford address would have been proper.
In her petition, however, she contended that DHS’s English-language notice of her obligation to provide an updated address was “constitutionally insufficient” because she “is not a native English speaker” and thus she had been denied due process by the BIA.
Interestingly, petitioners before both the Fifth and Sixth Circuits had made nearly identical arguments in the recent past (which both courts rejected), but Urquia-Yanez was apparently the first alien to claim that due process required the U.S. government to provide her with notifications in her native language.
Khan and Reyes-Bonilla
The Ninth Circuit panel made quick work of concurring with its sister circuits and dispensing with the petitioner’s arguments, but not before extending one of its earlier precedents and distinguishing yet another.
In its 2004 opinion in Khan v. Ashcroft, the Ninth Circuit rejected a claim made by an Afghan national who, having appeared at his first immigration court hearing, failed to appear at his second after receiving a hearing notice in English, and was ordered removed in absentia.
Khan contended that the second notice was “constitutionally defective” because he doesn’t understand English and the notice wasn’t translated for him.
The court there, while holding that due process “requires that notice be sufficient to advise aliens ‘of the pendency of the action and afford them an opportunity to present their objections’”, concluded that the second notice was sufficient because it gave him “actual notice” and “was clearly sufficient to advise Khan of the pendency of the action”, because he had requested a continuance and received one.
The panel in Urquia-Yanez, building on Khan, concluded that where “a non-English-speaking adult alien is provided with a formal legal notice in English, is released from custody, and has ample time thereafter to act on the notice”, the English-language notice will usually be constitutionally sufficient because it gives the alien the heads-up that she needs someone who speaks English to explain it to her.
By contrast, in its 2012 opinion in U.S. v. Reyes-Bonilla, the Ninth Circuit held an alien’s English-language waiver of his right to counsel and to appeal a DHS expedited removal order under section 238 of the INA (for aliens convicted of aggravated felonies) violated his due process rights, because the petitioner did not speak English and there was no evidence the waiver had been translated into his native Spanish.
The Urquia-Yanez panel distinguished Reyes-Bonilla, noting that “affirmative waivers of appellate rights in removal proceedings” of the sort in that earlier case are “subjected to a higher standard”, which does not apply to DHS notifications to aliens of their “obligations”.
In the latter instance, the only question is whether the DHS notice was “reasonably calculated to reach and to inform” aliens of “the procedures they must follow to obtain immigration relief” — and here, the court concluded, notice provided in English without translation was sufficient.
“Due Process Is Flexible”
Although the term “due process” is a shibboleth for opponents of immigration enforcement, as the Supreme Court has explained, it’s actually “flexible, and calls for such procedural protections as the particular situation demands”. Those protections, the Ninth Circuit held, do not require DHS to translate warnings to aliens of their obligations to provide address updates to the immigration court.
The Ninth Circuit’s opinion comes down to what should be simple common sense: If you are an alien in removal proceedings and DHS sends you away with a document in a language you don’t understand, you must ask someone to explain it to you or risk being deported. That the court needed to say it at all suggests “common” sense isn’t as common as you might assume.