Odilia Velasquez-Escovar v. Eric Holder, Jr.

*1002 OPINION

At the outset of her removal proceedings, Odilia de Jesus Velasquez-Escovar gave immigration officials her current address in Los Angeles. But those officials did not properly record it. Instead, they recorded another outdated address and then sent Velasquez’s hearing notice there. Velasquez never got that notice and, without it, she did not know when to appear for her deportation hearing. Understandably, she failed to appear and was ordered removed in absentia. When she found out about that order, Velasquez moved to reopen. An Immigration Judge denied that motion, and the Board of Immigration Appeals affirmed. In so doing, it abused its discretion. Accordingly, we grant Velasquez’s petition for review.

I

Odilia de Jesus Velasquez-Escovar is Guatemalan. She illegally entered the United States around 1990, settling in Los Angeles. She has four children; two are native-born citizens of the United States. She admits that she remains here unlawfully.

In 2007, Velasquez returned briefly to Guatemala. On her way back to Los Angeles, she was pulled over in Refugio, Texas, by local police. Those officers called federal immigration officials, who met Velasquez at the…

I respectfully dissent. Applying an abuse of discretion standard of review, I would deny the petition.

*1007 When ruling on a motion to reopen immigration proceedings, the Board of Immigration Appeals (BIA) abuses its discretion if it acts in an arbitrary or irrational fashion, renders a decision that is contrary to governing law, or neglects to give a reasoned explanation for its decision. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005).

The majority accuses the BIA of “discounting] Petitioner’s unrefuted claim without providing a reason.” Majority Opinion, p. 1003. Yet, two pages later, the majority articulates two reasons given by the BIA for its decision. See id., p. 1004. In any event, there was nothing irrational or arbitrary about placing the burden upon Petitioner of providing written notice of her address to the immigration authorities. Indeed, as the majority acknowledges, there is a regulation that so provides. See Majority Opinion, p. 1004 (referencing 8 C.F.R. § 1003.15 (d)(1)). Although the majority concludes that the regulation has no place in our analysis of this case, I disagree. In any event, the BIA could not act arbitrarily or irrationally by…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ODILIA DE JESUS VELASQUEZ- No. 10-73714

ESCOVAR,

Petitioner, Agency No.

A088-753-610

v.

ERIC H. HOLDER, JR., Attorney OPINION General, Respondent.

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

Submitted July 11, 2014* Pasadena, California

Filed September 29, 2014

Before: Barry G. Silverman, Richard C. Tallman, and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Tallman; Dissent by Judge Rawlinson

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). VELASQUEZ-ESCOVAR V. HOLDER

SUMMARY**

Immigration

The panel granted Odilia de Jesus Velasquez-Escovar’s petition for review of the Board of Immigration Appeals’ denial of her motion to reopen an in absentia removal order.

The panel held that the BIA abused its discretion in finding that Velasquez was not entitled to notice of her deportation hearing. The panel wrote that aliens are entitled to notice unless they fail to give a current address to the government, or fail to let…