Vitalina Lucas Lopez v. Merrick B. Garland, Attorney General

Cincinnati, Ohio - Criminal defense lawyer represented Petitioner after an Immigration Judge (IJ) issued an in absentia removal order. She now now petitions for review of that decision

Vitalina Lopez is a native and citizen of Guatemala who entered the United States in the

1990s without admission or parole. In 2003, the government initiated removal proceedings

against Lopez, charging her with removability under 8 U.S.C. § 1182(a)(6)(A)(i). The

government sent Lopez a Notice to Appear for her removal proceeding that contained a warning

in English that if she failed to attend the hearing, the IJ could order her removal, and she might

be arrested and detained by the Immigration Naturalization Service (INS) as a result. Lopez

failed to appear at her removal hearing as directed, so the IJ ordered her removal in absentia.

Immigration officials detained Lopez a few years later.

On December 6, 2017, Lopez filed a motion with the immigration court to reopen her

removal proceedings, claiming that she was the derivative beneficiary of her husband's pending

application for protection under the Nicaraguan Adjustment and Central American Relief Act

(NACARA). The IJ denied Lopez's motion, finding that Lopez's NACARA-based claims were

untimely and that her motion failed to include the required documents. The IJ also declined to

exercise its discretionary authority to sua sponte reopen Lopez's removal proceedings.

On June 22, 2020, the BIA adopted and affirmed the IJ's decision and dismissed Lopez's

appeal as untimely and without merit. It also rejected Lopez's additional argument on appeal

that the 2004 in absentia order of removal should be rescinded because the Notice to Appear was

delivered in English, not in her native language. And like the IJ, the BIA rejected Lopez's

request that it exercise its discretionary authority to sua sponte reopen her removal proceedings.

Lopez petitions for review of the BIA's decision.

II.

Motion to Reopen. Where, as here, "the BIA provides its own reasoning for denying a

motion to reopen rather than summarily affirming the IJ, we review the BIA's decision as the

final agency determination.” Sanchez v. Holder, 627 F.3d 226, 230 (6th Cir. 2010). Our review

is for abuse of discretion. Id. "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.'”

No. 20-3762 Lucas Lopez v. Garland Page 3

Thompson v. Lynch, 788 F.3d 638, 642 (6th Cir. 2015) (quoting Camaj v. Holder, 625 F.3d 988,

991 (6th Cir. 2010)).

Lopez argues that the BIA abused its discretion when it denied her motion to reopen

because it overlooked the IJ's original error in issuing its 2004 in absentia order of removal. The

BIA may rescind an in absentia order of removal 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. at 643 (citing 8 U.S.C. § 1229a(b)(5)(C)). Lopez argues here, as she did before the BIA, that

she did not receive proper notice. "We review de novo the adequacy of notice, but 'accord a

great deal of deference to the Attorney General's and the [BIA]'s permissible construction of the

statute which they administer.'” Santos-Santos v. Barr, 917 F.3d 486, 491 (6th Cir. 2019)

(quoting Soumah v. Holder, 403 F. App'x 999, 1001 (6th Cir. 2010)).

An alien must be provided written notice of his or her removal proceeding.

8 U.S.C. § 1229(a)(1). And an order of removal can be issued in absentia only if the alien

received proper notice and failed to attend the proceeding. Id. § 1229a(b)(5)(A). Lopez received

notice of her removal proceeding in 2003, and she failed to attend the proceeding the following

year. She argues that the notice violated her due process rights because it did not detail, in her

native language, the consequences of her failing to attend the proceeding. She also argues that

the Rule of Lenity requires us to interpret the Immigration Nationality Act to require notice in

the party's native language. Both arguments are without merit.

First, as we have previously recognized, notice "in English to a non-English-speaker

typically satisfies due process because it puts the alien on notice that further inquiry is needed,

leaving the alien to seek help from someone who can overcome the language barrier.” Patel v.

Sessions, 751 F. App'x 795, 799 (6th Cir. 2018) (quoting Winquan Zhong v. Sessions, 744 F.

App'x 921, 924 (6th Cir. 2018)). Second, we have held time and again that the INA "does not

No. 20-3762 Lucas Lopez v. Garland Page 4

require that the [Notice to Appear] be explained or written in an alien's native language.” E.g.,

Saldana-Navarro v. Whitaker, 759 F. App'x 427, 429 (6th Cir. 2018) (quoting Patel, 751 F.

App'x at 799). Put differently, the BIA did not abuse its discretion in denying Lopez's motion.

Sua Sponte Reopening. Under 8 C.F.R. § 1003.2(a), the BIA has authority to sua sponte

reopen removal proceedings. Lopez argues that the BIA should have exercised that authority in

her case, notwithstanding its denial of her motion to reopen. We, however, "lack jurisdiction to

review a BIA decision declining to exercise its discretionary authority to sua sponte reopen a

removal order.” Cuevas-Nuno v. Barr, 969 F.3d 331, 335 (6th Cir. 2020). The matter ends

there.

We deny Lopez’s petition for review of the BIA’s decision regarding her motion to

reopen and dismiss her petition for review of the BIA’s decision declining to exercise its discretionary authority