     Case: 13-60545    Document: 00512845747     Page: 1   Date Filed: 11/21/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                  No. 13-60545
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
GUSTAVO BARRIOS-CANTARERO,                                      November 21, 2014
                                                                   Lyle W. Cayce
                                                  Petitioner            Clerk

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent




                      Petition for Review of an Order of the
                         Board of Immigration Appeals


Before STEWART, Chief Judge, and JONES and HIGGINSON, Circuit
Judges.

PER CURIAM:
      Petitioner Gustavo Barrios-Cantarero petitions this court for review of
the Board of Immigration Appeals' (“BIA”) decision affirming the Immigration
Judge's (“IJ”) denial of his motion to reopen removal proceedings and rescind
an in absentia removal order. See 8 U.S.C. §§ 1229a(b)(5)(C)(ii) and (c)(7)(C)(ii)
For the following reasons, we GRANT the petition.
      On May 30, 2001, Gustavo Barrios-Cantarero (“Barrios-Cantarero”), a
native and citizen of Guatemala, entered the United States near Fabens,
Texas, with his brother, Adrian Eliseo Barrios-Cantarero (“Adrian Eliseo”).
U.S. Border Patrol agents apprehended the brothers shortly after entry. The
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agents gave each brother a separate Notice to Appear (“NTA”), ordering each
to appear before an immigration judge on “a date to be set” and at “a time to
be set.” Before being released on his own recognizance, Barrios-Cantarero
provided the agents with an address in Fremont, California, where he would
be staying with family. Adrian Eliseo provided the same address.
      On June 28, 2001, the immigration court sent one Notice of Hearing
(”NOH”) to the Fremont, California, address. The NOH was addressed only to
Adrian Eliseo and stated that it served as notice to the “Alien” for a “hearing”
to be conducted on September 25, 2001, in the “above captioned case.”
Problematically, the header of the document contained two case citations, one
for each brother.
      Barrios-Cantarero failed to attend his September 25, 2001, removal
hearing and an in absentia removal order was entered against him. That same
day, the immigration court sent a letter containing a number of documents to
Barrios-Cantarero at his Fremont address. This time, the letter was addressed
directly to Barrios-Cantarero and contained documents pertaining solely to his
proceedings. Among the documents were a copy of the warrant that had been
served upon him while he had been detained, a copy of the NTA, a copy of the
government memorandum notifying the immigration Court that he had been
released on his own recognizance, a copy of the in absentia removal order, and
information regarding the BIA review process.        The letter contained no
reference to the NOH that had been sent to Adrian Eliseo.
      More than a decade later, Barrios-Cantarero moved to reopen his
removal proceedings and rescind the in absentia order, claiming that he failed
to receive proper notice, and in the alternative, that changed conditions in




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                                     No. 13-60545
Guatemala entitled him to reopen proceedings. 1 The IJ denied the motion to
reopen, determining that the petitioner had received proper notice of the
hearing and that conditions in Guatemala had not changed materially since
the time of the original hearing. The BIA affirmed the IJ and this petition for
review followed.
                             STANDARD OF REVIEW
      This Court reviews the denial of a motion to reopen “under a highly
deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303
(5th Cir. 2005). The Board abuses its discretion when it issues a decision that
is capricious, irrational, utterly without foundation in the evidence, based on
legally erroneous interpretations of statutes or regulations, or based on
unexplained departures from regulations or established policies. Zhao,
404 F.3d at 303; Alarcon-Chavez v. Gonzales, 403 F.3d 343, 345 (5th Cir. 2005)
(“[W]e conclude that it was legal error, and therefore abuse of discretion.”). The
BIA's conclusions of law are reviewed de novo, although deference is given to
the BIA's interpretation of immigration regulations if that interpretation is
reasonable. Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir. 2006).
Factual findings are reviewed for substantial evidence.               Zhu v. Gonzales,
493 F.3d 588, 594 (5th Cir. 2007).
                                    DISCUSSION
       Despite the high review bar, the BIA abused its discretion by denying
Barrios-Cantarero’s motion to reopen, because insufficient notice of the
removal proceedings entitled him to reopen proceedings at any time. 8 U.S.C.
§ 1229a(b)(5)(C)(ii)




      1 Because we resolve the case under the “proper notice” grounds contained in 8 U.S.C.
§ 1229a(b)(5)(C)(ii), we need not address the “changed conditions” argument based on
8 U.S.C. § 1229a(c)(7)(C)(ii).
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                                  No. 13-60545
      The Immigration and Nationality Act (“INA”) requires the government
to give written notice that specifies the “time and place” of removal proceedings
to an alien charged with being subject to removal. 8 U.S.C. § 1229(a)(1)(G)(i).
This written notice must be given either in person or “through service by mail
to the alien or to the alien’s counsel of record.” 8 U.S.C. § 1229(a)(1) & (2)(A).
If an alien proves that he did not receive notice in compliance with the Act, the
alien is entitled to rescind the in absentia ruling and reopen the proceedings.
8 U.S.C. § 1229a(b)(5)(C)(ii).
      Federal regulations give further guidance as to the proper interpretation
of the INA’s requirement that the government give notice “to the alien.”
8 C.F.R. § 103.8(a)(1)(i) states that notice must be “addressed to the affected
party” and the party’s representative of record. After the alien reaches the age
of fourteen, notice is generally sent to directly to the alien, rather than a
guardian. Cf. 8 C.F.R. § 103.8(c)(2)(ii) (requiring notice be given to an adult if
the alien is under fourteen years of age); Lopez-Dubon v. Holder, 609 F.3d 642,
646 (5th Cir. 2010) (affirming propriety of serving a seventeen year old alien).
      The BIA committed legal error by determining that Barrios-Cantarero
was properly given notice through a letter addressed to Adrian Eliseo and
therefore abused its discretion by denying his motion to reopen. The only
document in the record that could possibly amount to notice for Barrios-
Cantarero is a Notice of Hearing in Removal Proceedings addressed solely to
Adrian Eliseo, a third-party alien also subject to removal proceedings. The
body of that letter refers to a hearing in the “case,” a singular noun. Similarly,
the Certificate of Service explains that the document was served by mail on
the “Alien,” once again using a singular noun. The header of the letter does
include two case citations, one for each brother.       But given the singular
language of the letter combined with the fact that it is only addressed to Adrian


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                                    No. 13-60545
Eliseo, the letter therefore only gives notice to Adrian Eliseo and does not
appear to be helpful in providing notice to Barrios-Cantarero.
      Aside from these deficiencies of the document, the federal regulations
interpreting the INA require service of notice by mail to be addressed to the
affected party and his representative of record in order for notice to be proper.
8 C.F.R. § 103.8(a)(1)(i). We review the BIA's conclusions of law de novo, but
defer to the BIA's interpretation of immigration regulations, unless that
interpretation is plainly erroneous or inconsistent with the regulations.
Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir. 2006); Silwany-
Rodriguez v. I.N.S., 975 F.2d 1157, 1160 (5th Cir. 1992). Here, the BIA failed
to apply 8 C.F.R. § 103.8(a)(1)(i) in determining whether Barrios-Cantarero
had received proper notice of his hearing; its proper notice conclusion is owed
no deference. The document is clearly not addressed to Barrios-Cantarero and
therefore cannot be proper notice to him. Under 8 U.S.C. § 1229a(b)(5)(C)(ii),
the lack of sufficient notice entitled Barrios-Cantarero to reopen his
proceedings at any time. Accordingly, the BIA abused its discretion in denying
Barrios-Cantarero’s motion to reopen. 2
      The Department of Justice’s (“DOJ”) arguments why Barrios-Cantarero
was properly served with notice are unpersuasive. First, DOJ argues that the
brothers’ cases had been consolidated, thus allowing the immigration court to
address the letter to a single brother and still properly serve both of them with
notice. DOJ also contends that notice addressed solely to Adrian Eliseo was
proper since Barrios-Cantarero was under eighteen years old and his brother
was an adult. Both positions are unconvincing.




      2   Because the NOH here was not addressed to Barrios-Cantarero, as required, any
issue of “presumed delivery” is not before us.
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                                  No. 13-60545
      The record contains no evidence that the brothers’ cases were
consolidated. In fact, the record suggests the opposite; all prior and subsequent
correspondence and all proceedings dealt separately with each brother. The
immigration court clerk’s letter containing the in absentia order was addressed
solely to Barrios-Cantarero, the in absentia order was entered against Barrios-
Cantarero separately, the removal order was entered against Barrios-
Cantarero    separately,    the   Immigration     and   Customs        Enforcement
memorandum      detailing   Barrios-Cantarero’s     release    was    written   and
submitted to the immigration court separately, and Barrios-Cantarero was
given a separate NTA and warrant when he was apprehended.
      Adrian Eliseo’s status as an adult while Barrios-Cantarero was under
the age of eighteen also fails to cure the government’s notice error. After age
fourteen, notice need not be given to an alien’s guardian.            Lopez-Dubon,
609 F.3d at 646 (affirming propriety of serving a seventeen year old alien).
Indeed, all other correspondence from the government was directed specifically
to Barrios-Cantarero. Moreover, nothing in the record establishes Adrian
Eliseo as Barrios-Cantarero’s representative of record, even if he was Barrios-
Cantarero’s older brother. Therefore arguing for the propriety of the notice
based on Adrian Eliseo’s age still departs from the federal regulation, since it
requires notice be addressed to the affected party.
      Accordingly, the petition for review of the Board of Immigration Appeals
decision is GRANTED.




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