Anthony Thompson v. Eric Holder, Jr.
OPINION and JUDGMENT filed : The petition for review is DENIED. Decision for publication. Ronald Lee Gilman (AUTHORING), John M. Rogers, and Jeffrey S. Sutton (CONCURRING IN PART AND IN THE JUDGMENT), Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0122p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LORETTA E. LYNCH, Attorney General,
On Petition for Review of an Order of the
Board of Immigration Appeals
No. A076 507 897.
Decided and Filed: June 12, 2015
Before: GILMAN, ROGERS, and SUTTON, Circuit Judges.
ON BRIEF: Black P. Somers, BLAKE P. SOMERS LLC, Cincinnati, Ohio, for Petitioner.
Manuel A. Palau, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
GILMAN, J., delivered the opinion of the court in which ROGERS, J., joined, and
SUTTON, J., joined in part. SUTTON, J. (pp. 14–15), delivered a separate opinion concurring
in part and in the judgment.
RONALD LEE GILMAN, Circuit Judge. Petitioner Anthony Thompson, a native of
Jamaica, was arrested on marijuana-trafficking charges in Cleveland, Ohio in March 1999.
While he was detained, an officer of the former Immigration and Naturalization Service (INS)
Thompson v. Lynch
processed Thompson and personally issued him a Notice to Appear.
Soon thereafter, the
immigration court in Cleveland mailed Thompson notice of his upcoming removal hearing.
Thompson failed to appear at the hearing and was ordered removed in absentia. Fourteen years
later, Thompson moved to reopen his removal proceedings, arguing that he did not receive notice
of the 1999 hearing. The immigration judge (IJ) denied Thompson’s motion and the Board of
Immigration Appeals (BIA) upheld that order. Thompson now petitions this court for review.
For the reasons set forth below, we DENY his petition.
Factual and procedural background
The relevant facts in this case are not disputed and were aptly summarized by the BIA as
The respondent was arrested by the Cleveland police department in 1999
because he was present at a house during a controlled drug delivery at 7305
Colfax Road, Cleveland, Ohio 44104, and he was placed under an immigration
detainer. The Notice to Appear was issued on March 9, 1999, and it alleged that
the respondent entered the United States on an unknown date at an unspecified
location. The respondent received personal service of the Notice to Appear, which
he signed, and which listed his address as 2761 E. 126 Street, Cleveland, Ohio
44120. It informed him about his responsibility to inform immigration authorities
about any address changes and the consequences for failure to appear. The Form
I-213 also listed the respondent's address as 2761 E. 126 Street, Cleveland, Ohio
44120. A hearing notice was mailed to the respondent at the E. 126 Street address
informing him of a hearing scheduled for December 17, 1999. It was not returned
by the Postal Service.
Following a hearing conducted in absentia on December 17, 1999, at
which [Thompson] failed to appear and the legacy Immigration and
Naturalization Service (INS) presented evidence regarding his removability, an
Immigration Judge found him subject to removal as charged, determined that he
had abandoned all potential applications for relief, and ordered him removed from
the United States. A copy of the removal order was mailed to the respondent at
the E. 126 Street address and it was not returned by the Postal Service.
Over 14 years later, on March 13, 2014, [Thompson], through counsel,
filed a motion to rescind his in absentia removal order. He alleged that the INS
officer who interviewed him in the Cleveland jail told him that the house on
Colfax Road was a “drug house,” and that he should move to a different house.
[Thompson] further claimed that he told the INS officer that he knew a woman
who lived at the E. 126 Street address. However, after his release from jail, he
Thompson v. Lynch
indicated that the woman refused to permit him to live at the E. 126 Street address
and that he therefore resided at the Colfax Road address. [Thompson] alleged that
it was error for the INS officer to list the E. 126 Street address on the Notice to
Appear because he did not inform the officer that he resided at that address. He
did not deny that he received and signed the Notice to Appear, which contained
detailed information about an alien's responsibility to inform immigration
authorities about any address changes and about the consequences for failure to
. . . In a decision dated August 2, 2014, the Immigration Judge denied the
respondent's motion to reopen because the hearing notice was mailed to the
E. 126 Street address listed in the Notice to Appear and the Notice to Appear
informed him of his responsibility to report any address changes. Although he
claimed that he did not live at the E. 126 Street address, the Immigration Judge
noted that he had not provided any information about where he was living in
1999, and that his affidavit about his residence in 1999 was insufficient
corroboration. Furthermore, the respondent did not report his Colfax Road address
as his residence after he allegedly learned that he could not live at the E. 126
Street address and therefore he did not fulfill his obligation to report any address
changes as set forth in the instructions contained in the Notice to Appear. Finally,
the Immigration Judge observed that the respondent did not take any action to
resolve his immigration status even though he knew he had been placed in
removal proceedings when he signed the Notice to Appear in 1999, and he did not
indicate whether he was eligible for any form of relief in 1999 which would have
motivated him to appear for his hearing.
(citations omitted) (brackets added).
The BIA affirmed the IJ’s decision.
It found that the IJ was justified in ordering
Thompson’s removal in absentia because either (1) Thompson did not actually live at
East 126 Street and failed to “fulfill his obligation to report his address change,” or (2) he did
live at the East 126 Street address but failed to receive the mailed notice due to “some failure in
the internal workings of the household” (quoting Matter of G-Y-R-, 23 I. & N. Dec. 181, 189
(BIA 2001)). The BIA did not attribute Thompson’s failure to appear to any mistake by the
Thompson v. Lynch
Standard of review
“A motion to reopen is a form of procedural relief that asks the Board to change its
decision in light of newly discovered evidence or a change in circumstances since the hearing.”
Dada v. Mukasey, 554 U.S. 1, 12 (2008) (internal quotation marks omitted). We review the
BIA’s denial of such a motion under the abuse-of-discretion standard.
Camaj v. Holder,
625 F.3d 988, 991 (6th Cir. 2010). The BIA abuses its discretion only when its determination
was made “without a rational explanation, inexplicably departed from established policies, or
rested on an impermissible basis such as invidious discrimination against a particular race or
group.” Id. (quoting Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006)). Where, as here,
the BIA provides its own reasoning for the denial, rather than summarily affirming the IJ, we
review only the BIA’s decision. Cordova v. Gonzales, 245 F. App’x 508, 511-12 (6th Cir.
The BIA did not abuse its discretion in finding that Thompson failed to rebut the
presumption of receipt of notice
Notice of removal proceedings
Removal proceedings under the Immigration and Nationality Act are initiated when an
alien is provided with notice of the proceedings through service of a Notice to Appear. 8 U.S.C.
§ 1229(a)(1). A Notice to Appear must provide the alien with notice of particular information,
including the nature of the proceedings against him, the acts or conduct alleged to be in violation
of law, and the time and place at which the removal proceedings will be held. Id. § 1229(a)(1).
Where, as here, the Notice lists the hearing time as “to be set,” “the Immigration Court shall be
responsible for scheduling the initial removal hearing and providing notice to the government
and the alien of the time, place, and date of hearing.” 8 C.F.R. § 1003.18(b).
An alien may be served with a Notice to Appear (or notice of the time and place of the
removal hearing) either in person or by mail. 8 U.S.C. § 1229(a)(1). Pursuant to § 1229(c),
service by mail is considered sufficient if there is proof of attempted delivery to the last address
provided by the alien in accordance with § 1229(a)(1)(F).
Section 1229(a)(1)(F), in turn,
Thompson v. Lynch
requires that the Notice inform the alien of his affirmative duty to provide “the Attorney
General” with a written record of (1) “an address and telephone number (if any) at which the
alien may be contacted,” and (2) “any [subsequent] change of the alien’s address or telephone
number.” Change-of-address notifications provided to either the Attorney General or to the
immigration court—both of which are under the Department of Justiceʼs umbrella—are
sufficient to satisfy § 1229(a)(1)(F). Qumsieh v. Ashcroft, 134 F. App’x 48, 50-51 (6th Cir.
Reopening of removal proceedings
Failure to appear at a removal hearing may result, as it did here, in the IJ’s ordering that
the alien be removed in absentia. 8 U.S.C. § 1229a(b)(5). The immigration court may rescind
an in absentia removal order and reopen proceedings in one of three circumstances: (1) the alien
files a motion within 180 days of the removal order and demonstrates that he failed to appear due
to exceptional circumstances, (2) the alien files a motion at any time showing that he failed to
appear because he was in federal or state custody, or (3) the alien files a motion at any time
showing that he did not receive proper written notice. Id. § 1229a(b)(5)(C). Thompson’s motion
proceeds under the third category.
In order to prevail on his claim of nonreceipt, Thompson must overcome the presumption
of delivery that arises when a Notice to Appear or notice of hearing is properly addressed and
mailed to the last address provided by the alien. See Ba v. Holder, 561 F.3d 604, 607 (6th Cir.
2009) (citing Matter of M-R-A-, 24 I. & N. Dec. 665, 673 (BIA 2008)). “To do so, [Thompson]
must show: (1) that he provided the court with a correct, current address; and (2) that the notice
was never received.” See Timchenko v. Holder, 485 F. App’x 813, 815 (6th Cir. 2012) (citing
Ba, 561 F.3d at 607) (brackets added).
This circuit, in assessing nonreceipt claims like
Thompson’s, has looked to the following nonexhaustive list of evidence, both direct and
circumstantial, as set forth in Matter of M-R-A:
(1) the respondent’s affidavit; (2) affidavits from family members or other
individuals who are knowledgeable about the facts relevant to whether notice was
received; (3) the respondent’s actions upon learning of the in absentia order, and
whether due diligence was exercised in seeking to redress the situation; (4) any
prior affirmative application for relief, indicating that the respondent had an
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incentive to appear; (5) any prior application for relief filed with the Immigration
Court or any prima facie evidence in the record or the respondent’s motion of
statutory eligibility for relief, indicating that the respondent had an incentive to
appear; (6) the respondent’s previous attendance at Immigration Court hearings, if
applicable; and (7) any other circumstances or evidence indicating possible
nonreceipt of notice.
Ly v. Holder, 327 F. App’x 616, 622 (6th Cir. 2009) (quoting Matter of M-R-A, 24 I. & N. Dec.
There is no dispute that the immigration court mailed Thompson’s notice of hearing to
the East 126 Street address. As a result, only two related issues were before the BIA:
(1) whether Thompson’s address was on Colfax Road or on East 126 Street at the time that the
immigration court mailed the notice; and (2) whether Thompson lived up to his obligation to
supply the immigration court with his current address, as required by 8 U.S.C. § 1229(a)(1)(F).
The BIA posited two possible scenarios relating to these issues, both of which end poorly
for Thompson. Option one: Thompson’s address was 2761 East 126 Street as indicated in the
Notice to Appear. In this scenario, Thompson fulfilled his duty to report his current address
under § 1229(a)(1)(F)(i), but his motion to reopen should be denied because the court mailed the
notice of hearing to the proper address and Thompson failed to rebut the presumption of
delivery. Option two: Thompson’s address was 7305 Colfax Road, as he now claims. Under
this scenario, Thompson failed to provide the immigration court with his updated address as
required by 8 U.S.C. § 1229(a)(1)(F)(ii). Having failed to do so, Thompson has no basis to
object to his lack of notice and, pursuant to § 1229a(b)(5)(B), to his removal in absentia.
But Thompson presents a third option. He argues that, although the East 126 Street
address was listed on the Notice to Appear,
this was not the “last address provided by” Mr. Thompson, as required by
8 U.S.C. § 1229(a). While the E. 126 Street address was an address that Mr.
Thompson told the immigration officer about during his interview, it was not the
address he provided as his address or even as somewhere he could receive mail.
It was simply the address of a woman he knew, and he described it as such. The
“last address provided” by Mr. Thompson, therefore, is not E. 126 Street, but
Thompson v. Lynch
(Emphasis in original.) In other words, Thompson argues that even though the Notice to Appear
did not list his current address, he did not violate the requirements of § 1229(a)(1)(F)(ii) because
he gave his current address to the immigration officials and never changed his residence prior to
the court’s mailing of his hearing notice. Cf. 8 U.S.C. § 1229(a)(1)(F)(ii) (“[T]he alien must
provide the Attorney General immediately with a written record of any change of the alien’s
address or telephone number.”).
The Ninth Circuit granted a petition for review under similar facts in
Thompson’s narrow reading of the immigration statutes is not without support. Based on
a strikingly similar set of facts, a divided panel of the Ninth Circuit recently granted a petition for
review in Velasquez-Escovar v. Holder, 768 F.3d 1000 (9th Cir. 2014). The petitioner in
Velasquez-Escovar claimed that, although she verbally gave immigration officials her current
address, the officials recorded a different, outdated address on her Notice to Appear. Despite the
error, Velasquez signed the Notice to Appear, and the immigration court subsequently mailed her
hearing notice to the address contained therein. Because she no longer lived at that address, she
never received the notice. And because she never received the notice, Velasquez did not appear
at her removal proceeding. She was thus ordered removed in absentia. An IJ denied her
subsequent motion to reopen and the BIA affirmed, finding that Velasquez was not entitled to
notice for two reasons: (1) she “was informed of her obligation to inform the Immigration Court
of her mailing address [but] did not do so”; and (2) “it was incumbent on Velasquez to ensure
that a correct address was supplied [but] she did not do so.” Id. at 1004 (alterations omitted).
The Ninth Circuit rejected both of the BIA’s rationales. First, the court’s majority
concluded that the BIA abused its discretion by irrationally rejecting Velasquez’s assertion that
she had, in fact, provided officials with her current address: Per the majority, “[t]he claim is
facially plausible and supported by Velasquez’s declaration. There is no contrary evidence, and
no adverse credibility finding.” Id. As to the BIA’s second line of reasoning, the Ninth Circuit
held that the BIA abused its discretion by taking the Notice to Appear’s instructions too far:
That advisal says only that “You are required to provide the DHS, in writing, with
your full mailing address and telephone number.” Nothing in the advisal
mentions or fairly implies any continuing duty, much less a continuing duty to
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correct the government. Once the alien provides an address and phone number,
the alien’s work is done. If the BIA meant to say otherwise, then it abused its
Id. at 1004-05.
In dissent, Judge Johnnie Rawlinson was of the opinion that the petition should be denied
given the deferential abuse-of-discretion standard. Id. at 1006 (Rawlinson, J., dissenting). She
particularly took issue with the notion that the BIA could abuse its discretion by enforcing an
applicable regulation, namely 8 C.F.R. § 1003.15(d)(1), which the government had raised in its
brief. That regulation provides that “if the address on the . . . Notice to Appear is incorrect, the
alien must provide to the Immigration Court . . . a written notice of an address . . . at which the
alien can be contacted.” 8 C.F.R. § 1003.15(d)(1). As Judge Rawlinson reasoned, “the BIA
could not act arbitrarily or irrationally by imposing an obligation that has been memorialized in a
regulation.” Velasquez-Escovar, 768 F.3d at 1007 (Rawlinson, J., dissenting).
The majority, however, deemed the regulation irrelevant with regard to Velasquez
because (1) the BIA did not invoke the regulation in its opinion, and (2) “the NTA [Notice to
Appear] itself never mentions [the regulation] or otherwise puts aliens on notice that an NTA
with an incorrect address is their problem . . . . It never says anything like ‘if the address listed
on the front of this form is incorrect, it is your responsibility to notify the immigration court.’”
Id. at 1005-06.
The key facts in the case before us are quite similar to those in Velasquez.
Thompson and Velasquez allegedly provided immigration officials with their correct addresses,
only to have those officials transcribe the wrong address onto their respective Notices to Appear.
Both individuals signed their Notices to Appear despite the erroneous addresses and, as a result,
failed to receive the notices of hearing mailed to them. Consequently, both were ordered
removed in absentia and later moved to reopen the proceedings against them. And in each
instance, their motions were denied by an IJ and the BIA on the basis that the petitioners had
failed to comply with the requirement that they inform the government of their current mailing
address, thereby forfeiting the right to notice of any subsequent removal proceedings against
Thompson v. Lynch
We thus respectfully disagree with our concurring colleague’s characterization that this
case is “materially distinct” from Velasquez. In particular, we see no basis in the record for the
concurrence’s suggestion that “[u]nlike Velasquez, Thompson knew where the government
believed he could be reached,” Concurring Opinion, p. 14. The two records instead indicate that
neither individual was aware of the allegedly erroneous address on their respective forms. But
both had reason to realize the mistake because each signed their Notice to Appear. Furthermore,
the concurrence’s rationale that we can deny Thompson’s petition based solely on his failure to
meet the address-reporting requirements of 8 U.S.C. § 1229(a)(1)(F) does not avoid the conflict
between this case and Velasquez because that rationale would have been equally applicable to the
facts before the Ninth Circuit.
Even the most striking difference between the two cases—the fact that Thompson filed
his motion to reopen 14 years after his hearing date as opposed to Velasquez who waited only 6
months—is not as significant as it might first appear. According to the Ninth Circuit, Velasquez
“spent roughly six months [after her Notice to Appear] regularly visiting an attorney’s office to
check on the status of her case. Eventually she gave up. Having received no further word from
the government, she assumed her case had been closed. She was wrong.” Velasquez-Escovar,
768 F.3d at 1002. But 15 months after “giving up,” Immigration and Customs Enforcement
officers detained her on unrelated grounds. At that point she discovered the outstanding removal
order against her, and only then did she proceed to file her motion to reopen. That is, had she not
been detained, she presumably would have continued taking no action on her case for an
indefinite period of time in the mistaken belief that the case had been closed.
We respectfully disagree with the outcome in Velasquez
Given the factual similarities between the two cases, we would arguably be obliged to
grant Thompson’s petition if Velasquez were a binding precedent in this circuit. But the Ninth
Circuit’s holding in Velasquez is in fact persuasive authority only and, after careful
consideration, we respectfully disagree with our sister circuit’s conclusion.
The majority opinion in Velasquez determined that the BIA abused its discretion based on
two purported errors.
First, the Ninth Circuit determined that, even though 8 C.F.R.
§ 1003.15(d)(1) “fit the situation,” it was not relevant in Velasquez’s case “because the BIA’s
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decision failed to invoke § 1003.15(d)(1), either by its name or by its logic.” Velasquez-Escovar,
768 F.3d at 1005. The Ninth Circuit’s reasoning rests on the following guidance from the
Supreme Court: “[A] reviewing court, in dealing with a determination or judgment which an
administrative agency alone is authorized to make, must judge the propriety of such action solely
by the grounds invoked by the agency.” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
The key phrase in the above excerpt, for our purposes, is “the grounds invoked.”
Although the BIA failed to cite the relevant regulation in either Velasquez’s or Thompson’s case,
the regulation’s content clearly undergirds the logic of “the grounds invoked” in each. Judge
Rawlinson made the same point in her dissent in Velasquez. Velasquez-Escovar, 768 F.3d at
1007 (“Because [the BIA’s opinion] reflects the requirements of the regulation, there was no
abuse of discretion.”) (Rawlinson, J., dissenting). Here, the BIA’s reliance on § 1003.15(d)(1) is
clear from its determination that “[i]f [Thompson] was not living at the E. 126 Street
address . . . , then it was his responsibility to immediately notify immigration authorities of his
We agree with Judge Rawlinson’s analysis on this point.
contrary to our concurring colleague’s suggestion, we have not “needlessly implicate[d]”
Chenery in our analysis. Concurring Opinion, p. 14. Rather, Thompson relies heavily on
Chenery and its progeny for his argument that we should follow the Ninth Circuit’s lead and
grant his petition for review.
The Velasquez majority’s second rationale for granting review was the failure of the
Notice to Appear to explicitly alert aliens that they have an obligation under
8 C.F.R. § 1003.15(d)(1) to correct any government errors made on that form. Rather, the Notice
to Appear warns that one must (1) provide the government with a current address, and (2) alert
the government of any changes thereto. These requirements track the statutory language found
in 8 U.S.C. § 1229(a)(1)(F)(i)-(ii). But the Ninth Circuit’s reading of the Notice to Appear
ignores the fact that the form also warns aliens that the address on the NTA, if not updated, will
be used by the government for future immigration-related communications: “You will be
provided with a copy of this form. Notices of hearing will be mailed to this address.” The form
goes on to caution that “[i]f you fail to attend the hearing . . . , a removal order may be made by
the immigration judge in your absence.” Thompson signed his Notice to Appear despite this
Thompson v. Lynch
admonition and the fact that the form listed an address where he knew he could not be reached.
We are left to wonder how Thompson expected the government to contact him regarding his
pending removal hearing when the form he signed listed an incorrect address.
The fact that the immigration official made the alleged error does not absolve Thompson.
Thompson had both the opportunity to provide his current, correct address at the time he
received the Notice to Appear and the obligation to ensure that the INS had an address at which
he could be reached throughout the proceedings. This obligation necessarily included a duty to
correct the address listed on the Notice to Appear, particularly since the Notice to Appear
informed him that all future mailings would be sent to the address listed on the form.
As this and other courts have noted in various contexts, including immigration cases,
one’s signature on a form or contract establishes a strong presumption that “[o]ne who accepts a
written contract is conclusively presumed to know its contents and to assent to them.” Haskins
v. Prudential Ins. Co. of Am., 230 F.3d 231, 239 (6th Cir. 2000) (quoting 17A Am. Jur. 2d
Contracts § 224 (1991)); see also, Hanna v. Gonzales, 128 F. App’x 478, 480 (6th Cir. 2005)
(holding that because the petitioner signed, under oath, his adjustment-of-status application, the
law charges him with knowledge of the application’s substance despite his assertion that he was
never actually aware of its contents); Bautista v. Star Cruises, 396 F.3d 1289, 1301 (11th Cir.
2005) (noting that one “who has executed a written contract and is ignorant of its contents cannot
set up that ignorance to avoid the obligation”) (internal quotation marks omitted); United States
v. Puente, 982 F.2d 156, 159 (5th Cir. 1993) (holding that “a defendant who deliberately avoids
reading the form he is signing cannot avoid criminal sanctions for any false statements contained
Even if Thompson were to argue that the warning on the Notice to Appear was too vague
to fully apprise him of his obligation to correct the incorrect address on his form, the maxim that
“ignorance of the law is no defense” curtails such an argument. Put simply, Thompson was
required to comply with 8 C.F.R. § 1003.15(d)(1) regardless of his knowledge thereof. See
Trinidad-Contreras v. Gonzales, 202 F. App’x 943, 945 (9th Cir. 2006) (explaining that
regulations are binding regardless of actual knowledge or the hardship resulting from innocent
ignorance) (citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947)).
Thompson v. Lynch
The propriety of this outcome is supported by the adverse implications of the alternative.
Specifically, the holding in Velasquez renders the requirements of 8 U.S.C. § 1229(a)(1)(F) and
the related threat of in absentia removal relatively toothless. Under Velasquez, an alien can
ignore an incorrect address listed on her Notice to Appear, skip her removal hearing, and then
reopen the proceedings against her at any time in the future by claiming that the error was the
government’s fault. Although there is nothing in the record to suggest that Thompson (or
Velasquez, for that matter) intentionally created this unfortunate situation, Thompson’s lack of
diligence in correcting the mistaken mailing address has led to the very problem that the relevant
statutory and regulatory provisions are designed to avoid. For these reasons, we conclude that
the BIA did not abuse its discretion by declining to reopen Thompson’s case.
The BIA’s opinion, however, appears to have relied in part on a misreading of
Thompson’s arrest records. Thompson argued below that the records corroborated his claim that
he lived on Colfax Road at the time that his hearing notice was mailed by the immigration court.
But the BIA mistakenly concluded that “the arrest records reflect only that he was arrested at the
Colfax Road address without any indication that this address was his residence.” This reading of
the arrest records is inaccurate.
Thompson attached the “Offense/Incident Reports” for three individuals—himself,
Haieema Winsom, and Cynthia Tell—to his motion to reopen. Each report includes two separate
address fields: one labeled “Primary Arrested” and the other labeled “Arrest Location.” The
former address field falls under the heading of “Arrestee: Present Information,” and the latter is
part of the section entitled “Arrest Information.” For Thompson and Winsom, the addresses
listed in each field are the same: “7305 COLFAX RD.” That is not the case for Tell, however.
Although her “Arrest Location” was also the Colfax address, her “Primary Arrested” is listed as
“11602 CROMWELL AV.” This strongly indicates, consistent with Thompson’s motion to
reopen, that Tell was arrested while visiting the residence where both Thompson and Winsom
But the BIA’s apparent misreading of the records is harmless. Although the arrest
records help prove that Thompson lived on Colfax Road at the time he was arrested, they do not
tell us where he resided several months later when the immigration court mailed him the notice
Thompson v. Lynch
of hearing. Only the latter address is relevant to our analysis in light of the requirement that
Thompson “immediately” provide the government with a record of any change to his address.
See 8 U.S.C. § 1229(a)(1)(F)(ii). More importantly, even if Thompson consistently resided on
Colfax Road, that does not change the fact that the Notice to Appear listed the East 126 Street
address. If, as Thompson now claims, the form was filled out in error, then Thompson failed to
comply with 8 C.F.R. § 1003.15(d)(1) by not correcting that mistake.
The arrest records therefore have no impact on our analysis. Under the Immigration and
Nationality Act, the government is entitled to rely on the accuracy of the last address provided by
an alien. Thompson signed the Notice to Appear that listed 2761 East 126 Street as his mailing
address, and he did not subsequently notify the government of a correct and/or changed address.
By mailing a hearing notification to that address, the government fully satisfied its obligation to
provide Thompson with notice of the hearing against him. 8 U.S.C. § 1229(c) (“Service by mail
. . . shall be sufficient if there is proof of attempted delivery to the last address provided by the
alien . . . .”). Whether or not Thompson was actually aware of the immigration official’s error on
the Notice to Appear, the law charges him with the knowledge of that error, which he was
obligated to correct under 8 C.F.R. § 1003.15(d)(1). Accordingly, even taking Thompson’s
version of the relevant events as true, we cannot conclude that the BIA abused its discretion by
refusing to reopen Thompson’s removal proceedings.
For all of the reasons set forth above, we DENY the petition for review.
Thompson v. Lynch
SUTTON, Circuit Judge, concurring in part and concurring in the judgment. I agree with
the majority that the government provided sufficient notice to Anthony Thompson when it
mailed its hearing notice to the address listed in Thompson’s signed Notice to Appear. See
8 U.S.C. §§ 1229a(b)(5)(A), 1229(a)(1)(F), 1229(c). I write separately to make two points.
First, there is an additional reason not to be concerned about Velasquez-Escovar v.
Holder, 768 F.3d 1000 (9th Cir. 2014). The two cases are materially distinct. Velasquez
involved a woman who gave her address to an immigration official. The official mistakenly
wrote down the wrong address. Id. at 1002. In this case, by contrast, no one made a mistake;
there is no dispute that an immigration official wrote down the last address Thompson provided.
And that makes all the difference. Unlike Velasquez, Thompson knew where the government
believed he could be reached.
So unlike in Velasquez’s case, the government mailed
Thompson’s hearing notice to the last address he knowingly provided.
§ 1229(a)(1)(F)(i). I therefore do not think our decision is in tension with the Ninth Circuit’s
Second, the majority needlessly implicates SEC v. Chenery Corp. (Chenery II), 332 U.S.
194, 196 (1947), to disagree with the Ninth Circuit (among others) about its scope. See, e.g.,
Velasquez-Escovar, 768 F.3d at 1005; Island Creek Coal Co. v. Henline, 456 F.3d 421, 426 (4th
Cir. 2006). The immigration judge and Board of Immigration Appeals appear to have relied
exclusively on 8 U.S.C. § 1229(a)(1)(F) in deciding that Thompson had an obligation to
“immediately notify immigration authorities of his correct address, and not wait until 2014.” See
A.R. 5, 53. But the majority affirms the Board’s decision on the basis of a regulation, 8 C.F.R.
§ 1003.15(d)(1), that neither the immigration judge nor the Board invoked. This affirmance is
arguably at odds with the Supreme Court’s repeated statements that “[t]he grounds upon which
an administrative order must be judged are those upon which the record discloses that its action
was based.” SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 87 (1943); see also Chenery II,
332 U.S. at 196. Nor may courts “accept appellate counsel’s post hoc rationalizations for agency
Thompson v. Lynch
action; Chenery requires that an agency’s discretionary order be upheld, if at all, on the same
basis articulated in the order by the agency itself.” Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 168–69 (1962). Chenery demands that an agency express the reasoning behind its
decision, even if it does so with “less than ideal clarity.” Bowman Transp., Inc. v. Ark.-Best
Freight Sys., Inc., 419 U.S. 281, 286 (1974). So while it may be true that the Board implicitly
relied on 8 C.F.R. § 1003.15(d)(1) in its order, I am uncomfortable affirming the Board for that
Fortunately, we do not need to rely on the majority’s reading of Chenery, as there is
another sensible ground for decision: the statute. Thompson signed a document that instructed
him to provide the government, “in writing, with your full mailing address and telephone
number. . . . If you do not . . . provide an address at which you may be reached during
proceedings, then the Government shall not be required to provide you with written notice of
your hearing.” A.R. 116. These instructions derive from 8 U.S.C. § 1229(a)(1)(F), which
required Thompson to inform the government in writing of his address and any change in his
The Board and immigration judge relied on § 1229(a)(1)(F) in upholding the
government’s conduct. I would deny Thompson’s petition on this basis rather than create a
circuit split over Chenery’s meaning that neither party briefed.
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