In 2001 the BIA handed down its decision on Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001), holding that entry of an in absentia order of removal is inappropriate where the record reflects that the alien did not receive, or could not be charged with receiving, the Notice to Appear that was served by mail at an address obtained from documents filed with the Department of Homeland Security (DHS). The BIA determined that section 239(a)(1) of the Immigration and Nationality Act (INA), authorizes the entry of an in absentia order only after the respondent receives the warnings and advisals contained in the Notice to Appear. Id. at 187.
Later, in 2002, the United States Court of Appeals for the Eleventh Circuit held that it is not a violation of due process to require foreign nationals to inform the government when their address has changed, and that, in fact “aliens have an affirmative duty to notify the Government of a change of address.” Dominguez v. U.S. Att’y Gen., 284 F.3d 1258 (11th Cir. 2002). This decision was made without reference to the BIA’s determination in Matter of G-Y-R. Because the DHS had provided notice to the most recent address provided by the alien in that case, the court held that she received proper notice, even though she had moved. Id. at 1260. In reaching that conclusion, the Eleventh Circuit stated that “an alien’s failure to provide a change of address will preclude the alien from claiming that the DHS did not provide proper notice.”; therefore making an in absentia order valid even if the foreign national did not receive the notice to appear, if they had moved and not informed the government of their new address.
Since 2002 the Board of Immigration Appeals has consistently applied its decision in Matter of G-Y-R- in all appellate circuits except the Eleventh, however, in its recent decision in Matter of Jorge Anyelo, 25 I&N Dec. 337 (BIA 2010), the BIA has determined that the Eleventh Circuit’s decision in the Dominguez case is not in contradiction with Matter of G-Y-R, and therefore Matter of G-Y-R- should be applied uniformly in cases like this one, arising within the Eleventh Circuit.
The BIA has stated in its decision in Matter of Jorge Anyelo, that in making an interpretation of the statute, the phrase “address provided under section 239(a)(1)(F) of the Act” in section 240(b)(5) of the Act means that an Immigration Judge’s authority to enter an in absentia order of removal was contained in that section, and that the Immigration Judge could exercise that authority only if it was established that the written notice complied with section 239(a), which requires the notice to contain warnings and advisals that the alien “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 proceedings under section 240.” INA § 239(a)(1)(F).
The Eleventh’s Circuit’s decision in Dominguez was primarily devoted to the issue of due process rather than statutory interpretation and hence it noted an alien’s affirmative duty to provide the Government with a correct address. The decision also cited section 239(c) of the Act, which states that service by mail is sufficient if there is proof of attempted delivery at an alien’s last known address provided in accordance with section 239(a)(1)(F) of the Act.
In Matter of Jorge Anyelo, the BIA indicates that it does not disagree with the Eleventh Circuit’s decision in Dominguez that due process is not violated by a statute that found notice adequate if sent to an alien’s last provided address. The BIA is stating that, as it held in Matter of G-Y-R-, section 240(b)(5) is not such a statute and that an Immigration Judge therefore has no authority to order an alien’s removal from the United States in absentia unless the alien has received (or can be properly charged with receiving), at his last provided address, the section 239(a)(1)(F) warnings and advisals contained in the Notice to Appear.
Therefore, according to the BIA, the holding in Matter of Jorge Anyelo is in fact consistent with Dominguez, in that the Eleventh Circuit’s decision states that the “statute clearly provides that notice to the alien at the most recent address provided by the alien is sufficient notice.” Dominguez v. U.S. Att’y Gen., 284 F.3d at 1260. And because the court in Dominguez never considered the BIA’s holding in Matter of G-Y-R, that an address does not qualify as “one provided under section 239(a)(1)(F)” unless the notice with the necessary warnings and advisals was received at the most recent address provided because 239(a)(1) of the Immigration and Nationality Act (INA) authorizes the entry of an in absentia order only after the respondent receives the warnings and advisals contained in the Notice to Appear.
The BIA has now stated that it will hereafter apply its holding in Matter of G-Y-R to cases in the Eleventh Circuit, as that decision is in fact consistent with the decision in Dominguez.
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