Luz Meyers v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14721
____________________
LUZ ELENA MEYERS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A087-252-574
____________________
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2 Opinion of the Court 20-14721
Before J ORDAN, L UCK , and L AGOA , Circuit Judges.
L UCK , Circuit Judge:
Luz Meyers, a native and citizen of Colombia, petitions for
review of the denial of her motion to reopen removal proceedings
under 8 U.S.C. section 1229a(b)(5)(C). Meyers, in her motion, ar-
gued that the immigration judge should reopen proceedings be-
cause she “did not receive notice” of her removal hearing. 8 U.S.C.
§ 1229a(b)(5)(C)(ii). After considering the evidence, the immigra-
tion judge denied the motion to reopen because Meyers had not
met her burden to show she did not receive notice of her removal
hearing. Because the immigration judge’s decision was not arbi-
trary or capricious, we deny Meyers’s petition for review.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Meyers first entered the United States in 1998 on a B2 tourist
visa. In 2008, while renting a house on Pecan Run Radial in Ocala,
Florida, Meyers married a United States citizen who moved in with
her.
That same year, Meyers’s husband petitioned the Depart-
ment of Homeland Security on her behalf to grant her permanent
resident status. The petition listed the Pecan Run address as Mey-
ers’s current address and the one where she “intend[ed] to live.”
The department conditionally approved the petition in 2009. But
Meyers failed to petition to remove the conditions, so the depart-
ment terminated her permanent resident status in 2011.
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20-14721 Opinion of the Court 3
In June 2013, the department sent Meyers a notice to appear
at her removal proceedings. The notice to appear was sent by reg-
ular mail to the Pecan Run address and charged Meyers as remov-
able. It ordered her to appear before an immigration judge on a
date and time “to be set.” It also warned that if Meyers didn’t ap-
pear, the immigration judge may order that she be removed in her
absence.
Two weeks later, the immigration court sent Meyers—also
by regular mail to the Pecan Run address—a notice of hearing. The
notice of hearing set Meyers’s removal hearing for July 11, 2013, at
8:30 A.M. in Orlando, Florida. Like the notice to appear, it warned
that if Meyers failed to appear, the hearing could be held without
her. It also warned that if the hearing was held in her absence an
order of removal could be entered against her.
The hearing was held as scheduled on July 11, but Meyers
didn’t appear. The immigration judge conducted the hearing in
Meyers’s absence, or “in absentia,” under 8 U.S.C. section
1229a(b)(5)(A), and ordered that Meyers be removed to Colombia.
The immigration judge found that: (1) Meyers “was provided writ-
ten notification of the time, date[,] and location” of the hearing;
(2) Meyers was “provided a written warning that failure to attend
th[e] hearing . . . would result in the issuance of an order of re-
moval in [her] absence”; and (3) the department “submitted docu-
mentary evidence relating to [Meyers] which established the truth
of the factual allegations” charged in the notice to appear. Like the
notices, the removal order was mailed to the Pecan Run address.
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4 Opinion of the Court 20-14721
Meyers did not appeal the 2013 removal order to the Board
of Immigration Appeals. Instead, in August 2019—six years after
she was ordered removed—Meyers filed a motion to reopen re-
moval proceedings under 8 U.S.C. section 1229a(b)(5)(C). Meyers
argued she was “eligible to reopen . . . on three grounds,” but only
the first ground—lack of notice—is relevant to her petition.
Meyers argued that “[w]hen [a] [c]ourt considers a motion
to reopen, the central inquiry is whether or not the alien actually
received notice” of the removal hearing. Meyers submitted an af-
fidavit stating that she didn’t receive notice of her removal hearing.
She said that both she and her ex-husband left the Pecan Run ad-
dress in 2010 after they separated. So, Meyers explained, she “no
longer resided at [the Pecan Run] address” when the department
mailed the notice to appear and notice of hearing because she had
moved in with a friend. Meyers admitted that she never provided
the department with an updated mailing address. But she said that
she didn’t provide an updated address because her original attorney
told her “to not file anything.” When Meyers retained new counsel
in 2019, that attorney requested Meyers’s records from the depart-
ment and discovered the order of removal.
The department opposed reopening removal proceedings.
It responded that Meyers couldn’t “on the one hand fail to update
her address as required, and on the other hand use that same failure
to claim a lack of notice.”
The immigration judge denied Meyers’s motion to reopen
proceedings. The immigration judge acknowledged that an in
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20-14721 Opinion of the Court 5
absentia removal order can be rescinded at any time under 8 U.S.C.
section 1229a(b)(5)(C)(ii) if the movant shows she didn’t receive a
written notice satisfying 8 U.S.C. section 1229(a). The immigration
judge concluded, however, that Meyers did not satisfy her burden
of showing she lacked notice.
Under In re M-R-A-, 24 I. & N. Dec. 665, 671 (B.I.A. 2008), the
immigration judge explained, a “properly addressed notice . . . is
presumed to have been received by [an] addressee” if it is “sent [by]
regular mail according to normal office procedures.” The immi-
gration judge also explained that the presumption is rebuttable and
weaker than the one that applies when notice is sent by certified
mail. Under this framework, the immigration judge first found that
the weaker presumption applied to Meyers’s motion. The immi-
gration judge cited evidence that the Pecan Run address was Mey-
ers’s mailing address—specifically, Meyers’s own affidavit
acknowledged she rented the house on Pecan Run, and she listed
that house’s address when applying for residency. The immigra-
tion judge also cited how “[Meyers] concede[d] that the [notice to
appear], notice of hearing, and in absentia order were sent to her
[Pecan Run] address.” The immigration judge then found that
Meyers didn’t overcome the presumption. The immigration judge
reasoned that Meyers conceded that the notice to appear and no-
tice of hearing were mailed to the Pecan Run address, that Meyers
“by her own admission” never notified the department that she
moved out of the Pecan Run house, and that Meyers produced no
evidence that the notice documents were returned as undeliverable
by the post office.
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6 Opinion of the Court 20-14721
Meyers appealed the immigration judge’s order to the
board. On appeal, Meyers acknowledged that a noncitizen “may
be served with a [notice to appear] or [notice of hearing] by regular
mail.” And she acknowledged that the department did that here
by mailing the notice to appear and notice of hearing to the Pecan
Run address in 2013. But, Meyers pointed out, she provided the
Pecan Run address to the department “years earlier.” Thus, she
contended, the department “did the same thing” here that the Im-
migration and Naturalization Service did in In re G-Y-R-, where the
board concluded that “the entry of an in absentia order is pre-
cluded” if the noncitizen “did not receive the [n]otice to [a]ppear
and the notice of hearing it contains.” 23 I. & N. Dec. 181, 189–90
(B.I.A. 2001) (en banc).
The board affirmed the immigration judge’s order “without
opinion.” Meyers then petitioned for our review.
STANDARD OF REVIEW
Because the board summarily affirmed the immigration
judge’s order “without opinion,” we review the immigration
judge’s reasoning as if it were the board’s. Dragomirescu v. U.S. Att’y
Gen., 44 F.4th 1351, 1353 (11th Cir. 2022). We review for an abuse
of discretion the denial of a motion to reopen removal proceedings,
Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007), and that
review is “limited” to determining whether the denial was “arbi-
trary or capricious,” Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319
(11th Cir. 2009) (citation omitted). We review de novo any under-
lying legal conclusions. Li, 488 F.3d at 1374.
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20-14721 Opinion of the Court 7
DISCUSSION
Meyers argues that her case should have been reopened be-
cause it is “undisputed” that she didn’t receive written notice, citing
her affidavit’s statement that she didn’t live at the Pecan Run ad-
dress when notice was mailed. Under those circumstances, she
contends, the board’s In re G-Y-R- decision required reopening pro-
ceedings. We disagree. Because the immigration judge’s finding
that Meyers failed to satisfy her burden of showing she never re-
ceived notice was not arbitrary or capricious, we conclude the im-
migration judge didn’t commit an abuse of discretion by denying
her motion to reopen the removal proceedings.1
We begin by describing the relevant statutory framework.
The Immigration and Nationality Act establishes “an intricate set
of procedures” for removing noncitizens. Dragomirescu, 44 F.4th at
1354 (citing 8 U.S.C. §§ 1229, 1229a). The removal process “often
1 The government argues that, under 8 U.S.C. section 1252(d)(1), we cannot
review Meyers’s “Matter of G-Y-R- claim” because she didn’t exhaust it and ex-
haustion is jurisdictional. The Supreme Court has since clarified that sec-
tion 1252(d)(1)’s exhaustion requirement is not jurisdictional; instead, it is a
claim processing rule. See Santos-Zacaria v. Garland, 598 U.S. 411, 419 (2023).
We assume without deciding that Meyers satisfied the exhaustion require-
ment because her petition fails on the merits. See Donnelly v. Controlled Appli-
cation Rev. & Resol. Program Unit, 37 F.4th 44, 56 (2d Cir. 2022) (“[W]e may
assume that [claim processing] rules are satisfied to resolve the case on other
grounds.”); Ponce v. Garland, 70 F.4th 296, 300–02 (5th Cir. 2023) (acknowledg-
ing that the petitioner did not raise an issue before the board in a motion to
reconsider, but rejecting the petitioner’s argument on the merits because sec-
tion 1252(d)(1) is not jurisdictional).
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8 Opinion of the Court 20-14721
includes multiple hearings before an immigration judge,” and the
noncitizen “generally has a right to be present” at these hearings.
Dacostagomez-Aguilar v. U.S. Att’y Gen., 40 F.4th 1312, 1315 (11th
Cir. 2022) (citations omitted). But if the noncitizen fails to appear,
the immigration judge can order that she be removed in absentia if
she received “written notice” of the hearing as “required under par-
agraph (1) or (2) of [8 U.S.C.] section 1229(a).” 8 U.S.C.
§ 1229a(b)(5)(A); see Dacostagomez-Aguilar, 40 F.4th at 1315 (“[S]kip-
ping a hearing does not strip the immigration court of its power.”).
“[W]ritten notice” is “sufficient for purposes of [sec-
tion 1229a(b)(5)(A)]” if given “at the most recent address provided
under section 1229(a)(1)(F).” 8 U.S.C. § 1229a(b)(5)(A).
Section 1229(a) refers to two kinds of written notice. See id.
§ 1229(a)(1)–(2). Either type of written notice may be given to the
noncitizen “in person” or, “if personal service is not practicable,
through service by mail.” Id. § 1229(a)(1), (2)(A).
The first type of written notice is a “notice to appear.” Id.
§ 1229(a)(1). “Akin to a charging document,” a notice to appear
informs the noncitizen of the factual allegations, the “obligation to
keep [the department] apprised of any changes to [her] address,”
the “time and place at which [her] removal hearing will be held,”
and that—if she fails to appear—“the immigration judge can order
[her] removed . . . in [her] absence.” Dragomirescu, 44 F.4th at 1354
(citations omitted).
Although a notice to appear is sent to the noncitizen “in
every removal case,” the second type of written notice—a notice
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20-14721 Opinion of the Court 9
of hearing—is only required if “the time or place of [the original]
removal hearing . . . change[s]” or additional hearings are sched-
uled. Id. at 1354–55 (citing 8 U.S.C. § 1229(a)(2)); see also Da-
costagomez-Aguilar, 40 F.4th at 1317. A notice of hearing contains
the updated time or place of the hearing. Dragomirescu 44 F.4th at
1355. And, like a notice to appear, a notice of hearing informs the
noncitizen that failing to appear may result in the immigration
judge ordering removal in her absence. 8 U.S.C. § 1229(a)(2)(A)(ii).
If the noncitizen is ordered removed in absentia without
written notice, there are two ways she can seek relief. Under the
first option, she can directly appeal the removal order to the board
under 8 C.F.R. section 1003.38(a). Or, under the second option,
she may file a motion to rescind the removal order under 8 U.S.C.
section 1229a(b)(5)(C).
The second option, section 1229a(b)(5)(C), allows for an in
absentia removal order to “be rescinded . . . upon a motion to reo-
pen,” but only “if the alien demonstrates that [she] did not receive
notice in accordance with paragraph (1) or (2) of section 1229(a).”
Id. § 1229a(b)(5)(C)(ii). That means if the noncitizen missed “the
original hearing” the burden is on her to show she did not receive
a notice to appear as required by section 1229(a)(1). Dacostagomez-
Aguilar, 40 F.4th at 1316–17 (“[Section 1229a(b)(5)(C)(ii)] keeps
th[e] [removal] order in place unless an alien shows that he did not
receive the required notice. . . . [T]he notice that matters is the no-
tice for the hearing missed.”). Or, if she missed “any
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10 Opinion of the Court 20-14721
rescheduled . . . or additional hearing,” she must show she did not
receive a notice of hearing as required by section 1229(a)(2). Id.
Meyers chose the second option and moved to rescind her
removal order under section 1229a(b)(5)(C)(ii). As Meyers
acknowledged in her motion to reopen under that provision, “the
central inquiry is whether or not [she] actually received notice.”
In re M-R-A- controls that inquiry. In re M-R-A- “concern[ed]
the standard to be applied and the evidence to be considered by an
[i]mmigration [j]udge” when a noncitizen moves to reopen pro-
ceedings “claim[ing] that [she] did not receive” notice. 24 I. & N.
Dec. at 667. The board held that “when a respondent seeks to reo-
pen proceedings based on a claim of lack of receipt of notice,” a
“presumption of receipt” applies “to a [n]otice to [a]ppear or
[n]otice of [h]earing sent by regular mail [if] the notice was properly
addressed and mailed according to normal office procedures.” Id.
at 673 (noting that this presumption “is weaker than that accorded
to notice sent by certified mail”). If the presumption applies, “the
question to be determined is whether the respondent has presented
sufficient evidence to overcome the . . . presumption.” Id.
Under this framework, “all relevant evidence submitted to
overcome the weaker presumption of delivery must be consid-
ered.” Id. at 674. Relevant rebuttal evidence includes:
(1) the respondent’s affidavit; (2) affidavits from fam-
ily members or other individuals who are knowledge-
able about the facts relevant to whether notice was
received; (3) the respondent’s actions upon learning
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20-14721 Opinion of the Court 11
of the in absentia order, and whether due diligence
was exercised in seeking to redress the situation;
(4) any prior affirmative application for relief, indicat-
ing that the respondent had an incentive to appear;
(5) any prior application for relief filed with the
[i]mmigration [c]ourt or any prima facie evidence in
the record or the respondent’s motion of statutory el-
igibility for relief, indicating that the respondent had
an incentive to appear; [and] (6) the respondent’s pre-
vious attendance at [i]mmigration [c]ourt hearings, if
applicable.
Id. This list is nonexhaustive because “[e]ach case presents differ-
ent facts and circumstances.” Id. Immigration judges “are neither
required to deny reopening if exactly such evidence is not provided
nor obliged to grant a motion, even if every type of evidence is
submitted.” Id.
Because Meyers sought the same relief as the In re
M-R-A- movant—rescinding a removal order based on a lack of no-
tice—the immigration judge applied In re M-R-A-’s framework and
found that Meyers failed to show she didn’t receive notice. See id.
at 666–67. The immigration judge’s finding wasn’t “arbitrary or
capricious.”2 See Zhang, 572 F.3d at 1319. “[T]he hearing missed”
2
We reject the government’s argument that our decision in Dominguez v. U.S.
Attorney General, 284 F.3d 1258 (11th Cir. 2002), controls. Dominguez addressed
a due process claim and, as we’ve recently explained, “our statements [in
Dominguez] about the . . . statutory [notice] requirements for in absentia re-
moval were dicta.” Dragomirescu, 44 F.4th at 1356 n.4.
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12 Opinion of the Court 20-14721
was the July 11, 2013, 8:30 A.M. hearing, meaning “the notice that
matters” is the notice of hearing because it set that date and time.
See Dacostagomez-Aguilar, 40 F.4th at 1317. So, to reopen proceed-
ings under section 1229a(b)(5)(C)(ii), Meyers had the burden to
“demonstrate[] that [she] did not receive notice in accordance with
paragraph . . . (2) of section 1229(a).” 8 U.S.C. § 1229a(b)(5)(C)(ii);
see Dacostagomez-Aguilar, 40 F.4th at 1317–19. That’s “a heavy bur-
den.” Zhang, 572 F.3d at 1319 (“[M]otions to reopen are disfavored,
especially in removal proceedings.” (citation omitted)); see also Ali
v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006).
The immigration judge’s finding that Meyers did not meet
her burden was not arbitrary or capricious. As the immigration
judge explained, there was evidence Meyers resided at the Pecan
Run house. Meyers rented that house after entering the United
States and lived there with her ex-husband. She gave the depart-
ment the Pecan Run address as her current address and the one
where she intended to live when applying for residency status.
When the department notified Meyers in 2009 that it conditionally
approved the application, its notice listed the Pecan Run address as
her address. Meyers never notified the department that she later
moved out of the house. So, in 2013, when Meyers was charged as
removable, three different documents were sent by regular mail
and addressed to her at the Pecan Run house—a notice to appear,
a notice of hearing, and the removal order. None of the three doc-
uments were returned as undeliverable by the post office. And
Meyers did not challenge her removal order for six years.
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20-14721 Opinion of the Court 13
Meyers argues that the immigration judge’s application of
In re M-R-A- was arbitrary and capricious because “[In re]
M-R-A- has no bearing on the outcome of this case.” Instead, she
maintains, the “[immigration judge] was bound to apply [In re]
G-Y-R- to reopen this case.” Her “position is that [In re G-Y-R-] and
[In re] M-R-A- apply to distinct situations and claims.” She argues
that under In re G-Y-R-, “the ‘last address’ or the ‘most recent ad-
dress’ provided by the alien ‘in accordance with subsection (a)(1)(F)
[of section 1229]’ will necessarily be an address arising from the al-
ien’s receipt of . . . the [n]otice to [a]ppear.” See 23 I. & N. Dec. at
187–88 (citations omitted). She contends that, because notice here
was “sent to the wrong address” under section 1229(a), In re
G-Y-R- dictates that she can’t be charged with receiving it. In re
M-R-A-, she says, “supplies the analysis to determine ‘whether a re-
spondent has presented sufficient evidence to overcome the pre-
sumption’” of receipt.
We agree with Meyers that In re G-Y-R- and In re M-R-A- gov-
ern “distinct situations and claims.” But In re G-Y-R- did not address
a situation and claim like Meyers’s.
In re G-Y-R- considered whether an immigration judge may
enter a removal order in absentia in the first place if the respondent
“ha[d] never been notified of the initiation of removal proceed-
ings.” Id. at 183. The Immigration and Naturalization Service had
mailed a notice to appear to the respondent, but the post office re-
turned the notice to the service as undeliverable. Id. at 182. Then,
after the respondent failed to appear at her removal hearing, the
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14 Opinion of the Court 20-14721
immigration judge found that she lacked notice of the hearing and
terminated removal proceedings. Id.
The service appealed to the board, arguing that the immi-
gration judge erred by terminating removal proceedings. Id. at
182–83. The immigration judge, the service contended, “should
have . . . ordered the respondent removed in absentia” under sec-
tion 1229a(b)(5)(A) because it attempted to deliver the notice to her
“most recent address provided under section [1229](a)(1)(F).” Id.
at 182–83, 185–86 (quoting 8 U.S.C. § 1229a(b)(5)(A)). The board
rejected that argument, concluding that it was “proper for the
[i]mmigration [j]udge to terminate proceedings.” Id. at 192. The
board explained that section 1229a(b)(5)(A) didn’t authorize in ab-
sentia removal because, although “the [s]ervice mail[ed] the
[n]otice to [a]ppear to the last address it ha[d] on file for the al-
ien, . . . the record reflect[ed] that [she] did not receive the [n]otice
to [a]ppear, and the notice of hearing it contain[ed].” Id.
This is not an In re G-Y-R- case because In re G-Y-R- addressed
a different situation. There, the immigration judge denied the ser-
vice’s request for in abstentia removal because the notice to appear
was never delivered to the respondent. Id. at 182. The respond-
ent’s notice to appear—which was the “only notice of the date,
time, and place of her removal hearing”—was returned to the de-
partment by the post office as undeliverable. Id. at 183; see also id.
at 182 (“We understand . . . that the respondent did not receive the
[n]otice to [a]ppear because it was returned to the [s]ervice by the
[p]ostal [s]ervice.”); id. at 186 (“This case . . . involves constructive
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20-14721 Opinion of the Court 15
notice in the form of undelivered written notice.”); id. at 188 (“In this
instance, the [n]otice to [a]ppear never reached the respondent, and
the advisals were never conveyed.”); id. at 192 (“The record clearly
reflects that the [n]otice to [a]ppear never reached the respond-
ent.”).
Here, however, the immigration judge ordered in absentia
removal after finding that Meyers (unlike the In re G-Y-R- respond-
ent) received “written notification of the time, date[,] and location”
of her removal hearing. Both a notice to appear and notice of hear-
ing had been sent to Meyers’s Pecan Run address by regular mail—
where she admittedly lived and where she told the department she
intended to live when applying for residency. She continued living
there after the department conditionally approved her application,
and she never told it that she moved elsewhere. And, critically,
after the notices were sent to the Pecan Run address by regular
mail, those documents were never returned as undeliverable. See
Mauricio-Benitez v. Sessions, 908 F.3d 144, 149–51 (5th Cir. 2018)
(concluding it wasn’t an abuse of discretion for the immigration
judge to apply the presumption of receipt because the notice of
hearing wasn’t returned as undeliverable); Navarette-Lopez v. Barr,
919 F.3d 951, 953–55 (5th Cir. 2019) (same, despite the noncitizen’s
affidavit “stat[ing] that she had moved from place to place” over
the years). Unlike In re G-Y-R-, this is not a situation where we
know the noncitizen did not receive the notice because the notice
came back as undelivered.
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16 Opinion of the Court 20-14721
This is also not an In re G-Y-R- case because In re G-Y-R- ad-
dressed a different claim. In re G-Y-R- involved the first option for
challenging the immigration judge’s in absentia removal decision.
There, the service claimed on direct appeal that the respondent was
removable in absentia under section 1229a(b)(5)(A). See 23 I. & N.
Dec. at 182–83. Under that provision, the service had the burden
to establish that the petitioner received written notice satisfying
section 1229(a)(1) or (2). See 8 U.S.C. § 1229a(b)(5)(A) (providing
that an immigration judge shall proceed in absentia “if the [s]ervice
establishes by clear, unequivocal, and convincing evidence that the
written notice was . . . provided” (emphasis added)). Because the
service did not satisfy its burden, the immigration judge found that
sufficient notice wasn’t provided and denied the service’s request
for removal (which the board affirmed). In re G-Y-R-, 23 I. & N.
Dec. at 182, 192.
Here, on the other hand, Meyers brought a claim under the
second option—section 1229a(b)(5)(C)—to rescind an in absentia re-
moval order and reopen proceedings. Under the second option,
the burden flips. Meyers was the one with the burden and she had
to show that she lacked notice of her removal hearing. See 8 U.S.C.
§ 1229a(b)(5)(C)(ii) (“[A]n order [of removal] may be rescinded . . .
upon a motion to reopen filed at any time if the alien demonstrates
that the alien did not receive notice in accordance with paragraph
(1) or (2) of section 1229(a) . . . .” (emphasis added)). In re G-Y-R- did
not consider—because it involved a different claim—when a
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20-14721 Opinion of the Court 17
movant like Meyers satisfies her burden to reopen proceedings. See
23 I. & N. Dec. at 183.3
3 The dissenting opinion adds that the board’s decision was arbitrary and ca-
pricious because the board did not follow its precedent in In re Anyelo, 25 I. &
N. Dec. 337 (B.I.A. 2010). But Meyers never made this argument in her initial
brief, and “we do not consider claims not raised in a party’s initial brief.” APA
Excelsior III L.P. v. Premiere Techs., Inc., 476 F.3d 1261, 1269 (11th Cir. 2007).
Even if we did, In re Anyelo (like In re G-Y-R-) is not “factually . . . identical” to
our case. In In re Anyelo (as in In re G-Y-R-), there was no dispute that the
noncitizen did not get the notice: the evidence showed that the In re Anyelo
respondent filed a change-of-address form with the post office. 25 I. & N. Dec.
at 338; see also Sun v. U.S. Att’y Gen., 543 F. App’x 987, 991 (11th Cir. 2013)
(“[W]e have distinguished this case from In re G-Y-R- and [In re] Anyelo on the
basis that the [notice to appear] in those cases was returned by the Postal Ser-
vice, and the aliens in those cases could not be charged with notice.”). Here,
though, whether Meyers received notice was disputed. Her notice was not
returned by the post office—it was delivered—and there’s no evidence that
Meyers told the government that she changed her address. See Sun, 543 F.
App’x at 991 (“By contrast, the [notice to appear] was not returned by the
Postal Service in this case, and [the petitioner] could properly be charged with
receipt of the [notice to appear] and the [n]otice of [h]earing.”). So the immi-
gration judge properly applied In re M-R-A- to resolve the factual dispute.
The dissenting opinion makes four points in reply. First, it chides us
for relegating the discussion of In re Anyelo to a footnote. But using a footnote
to respond to a dissenting opinion puts us in good company. See, e.g., Andy
Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 534–38 nn.10–
14, 540–44 nn.16–19, 547–48 nn.21–22 (2023) (responding to a dissenting opin-
ion in footnotes); Biden v. Nebraska, 143 S. Ct. 2355, 2368 n.3, 2371 n.5, 2375
n.9 (2023) (same); 303 Creative LLC v. Elenis, 600 U.S. 570, 595–601 nn.3–7
(2023) (same); Counterman v. Colorado, 600 U.S. 66, 77–82 nn.4 & 6–7 (2023)
(same); Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 131–44 nn.4–10 (2023)
(same).
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18 Opinion of the Court 20-14721
The immigration judge found that Meyers did not satisfy her
burden because she admittedly lived at the Pecan Run address, told
the department that she lived there when applying for residency,
and never told the department that she moved somewhere else.
The notices of her removal proceedings (and the actual removal
order) were sent to the Pecan Run address by regular mail without
ever being returned as undeliverable. And Meyers never chal-
lenged the removal order during the six years between when it was
Second, the dissenting opinion correctly points out that a party can
raise new authorities on appeal in support of a preserved issue. But that’s not
what happened here. The dissenting opinion raises In re Anyelo, not as an ad-
ditional authority, but as a separate basis to grant Meyers’s petition because
the board arbitrarily and capriciously failed to follow, or to explain why it
didn’t follow, In re Anyelo. The problem is that Meyers never raised this
ground as a basis for granting her petition. And we can’t raise it on our own.
Third, the dissenting opinion claims it was undisputed that Meyers
never received notice of her removal hearing. But, unlike in In re Anyelo,
whether Meyers received the notice was very much in dispute. The evidence
before the immigration judge showed: Meyers admittedly lived at the Pecan
Run address; she applied for residency using the Pecan Run address; she was
granted conditional status while living at the Pecan Run address; there was no
suggestion she filed a change of address form with the post office; the notice
to appear and notice of hearing were sent to the Pecan Run address through
regular mail; neither document was returned as undeliverable (as in In re
G-Y-R-); and Meyers said nothing about her supposedly new address until six
years after she was ordered removed.
Finally, the dissenting opinion believes we should grant the petition
because the board did not give a reasoned explanation for rejecting Meyers’
affidavit. But this is yet another issue that Meyers did not raise in her initial
brief. And, again, we cannot raise new issues for her.
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20-14721 Opinion of the Court 19
entered and when she moved for recission. Based on the situation
and claim in this case, the immigration judge’s decision was not
arbitrary or capricious. See Zhang, 572 F.3d at 1319.
CONCLUSION
Thus, Meyers’s petition for review is DENIED.
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20-14721 J ORDAN, J., Dissenting 1
J ORDAN, Circuit Judge, Dissenting.
An immigration judge ordered Luz Meyers removed in ab-
sentia, but she contends that she never received the Notice to Ap-
pear which advised her of the charges against her or of the pending
removal proceeding. This case therefore concerns the statutory
notice required by the Immigration and Nationality Act before a
removal proceeding against a noncitizen can be conducted in ab-
sentia. Fortunately, the BIA addressed and resolved that issue in In
re G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001) (en banc). G-Y-R- holds
that “an [i]mmigration [j]udge may not order an alien removed in
absentia when the [government] mails the Notice to Appear to the
last address it has on file for [the] alien but the record reflects that
the alien did not receive the Notice to Appear, and the notice of
hearing it contains, and therefore has never been notified of the in-
itiation of removal proceedings or the alien’s address [update] obli-
gations under [8 U.S.C. § 1229(a)(1)] of the [INA].” G-Y-R-, 23 I. &
N. Dec. at 192.1
The relevant facts here are the same as those in G-Y-R-. I
respectfully dissent from the majority’s failure to apply G-Y-R- and
its progeny, specifically In re Anyelo, 25 I. & N. Dec. 337 (BIA 2010),
which applied G-Y-R- in the motion to reopen context. I discuss G-
Y-R- in detail and then pivot to what happened to Ms. Meyers.
1 The terms noncitizen and alien are largely interchangeable in the immigra-
tion context. I use noncitizen, but some of the cases, statutes, and sources
cited use the term alien or respondent.
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2 J ORDAN, J., Dissenting 20-14721
I
In G-Y-R-, the noncitizen, after entering the United States
without inspection, filed a request for asylum in 1982. In 1991, she
submitted a form to the government updating her address. Six
years later, sometime in 1997, the government mailed an appoint-
ment notice to her for an asylum interview. The notice was sent
by regular mail to the address she had provided in 1991 (and which
she had failed to update). She did not appear for her asylum inter-
view. See G-Y-R-, 23 I. & N. Dec. at 182.
In July of 1997, the government sent a Notice to Appear to
the noncitizen by certified mail to the address she had provided in
1991. The Notice to Appear was returned undelivered to the gov-
ernment by the U.S. Postal Service. See id. When she did not ap-
pear for her removal hearing, the government moved to proceed
with the hearing in absentia. But the immigration judge refused to
do so, explaining that he was not satisfied that the noncitizen was
aware of the removal proceeding. The immigration judge termi-
nated the removal proceeding without prejudice. See id. His order
was sent by certified mail to the same address on file but it was
returned to the immigration court with the notation “Moved Left
No Address.” See id.
The government appealed the immigration judge’s termina-
tion order to the BIA. It argued that the immigration judge should
have ordered the noncitizen removed in absentia because the
“proper notice of proceedings was effected through ‘attempted de-
livery to the last address provided by the [noncitizen]’ pursuant to
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20-14721 J ORDAN, J., Dissenting 3
. . . [8 U.S.C. § 1229(a)].” Id. The government also asserted that 8
U.S.C. § 1305 “places an affirmative duty on the [noncitizen] to
keep the Attorney General apprised of her whereabouts or face
certain consequences under . . . 8 U.S.C. § 1306[.]” Id. at 182–83.
The BIA dismissed the government’s appeal for a number of
reasons. A summary of its lengthy analysis, which proceeded in
the following sequential steps, is necessary to understand why Ms.
Meyers’ in absentia removal order here cannot stand.
The BIA began by noting that the noncitizen had not been
personally served with the Notice to Appear and that she had not
received any notice of the removal hearing because the certified
mailing had been returned. See id. at 183. Given this factual back-
ground, the BIA framed the issue as follows: “The issue is whether
an [i]mmigration [j]udge may order an alien removed in absentia
when the [government] mails the Notice to Appear to the last ad-
dress it has for an alien, but the record reflects that the alien did not
receive the Notice to Appear, and the notice of hearing it contains,
and therefore has never been notified of the initiation of removal
proceedings or the alien’s address [update] obligations under [8
U.S.C. § 1229(a)(1)] of the [INA].” Id. After setting out the issue,
the BIA provided a number of reasons why removal proceedings
could not be conducted in absentia under such circumstances.
First, under 8 U.S.C. § 1229(a)(1)(F)(1), it is the “Notice to
Appear [which] apprises the alien that he or she has a particular
address obligation respecting removal proceedings: the necessity of
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4 J ORDAN, J., Dissenting 20-14721
providing an address ‘at which the alien may be contacted respect-
ing proceedings under [8 U.S.C. § 1229a].’” Id. at 184.
Second, the “alien must be properly served with the Notice
to Appear before the particular address obligations of removal pro-
ceedings are fixed and the [i]mmigration [j]udge is authorized to
proceed in absentia.” Id. But “if the alien does not actually receive
the mailing, . . . the statute [§ 1229(c)] specifies that the sufficiency
of service will depend on whether there is ‘proof of attempted de-
livery to the last address provided by the alien in accordance with
subsection (a)(1)(F).’ Thus, in cases where the alien does not get the
mailing, only the use of an address that satisfies [§ 1229(a)(1)(F)] of
the [INA] will suffice for the initiation of proceedings.” Id. at 185
(emphasis in original and citation omitted).
Third, “the critical question for in absentia cases involving
mailed notice is whether the notice is mailed to an address that
qualifies as an ‘address provided under [§ 1229(a)(1)(F)].’ If an ad-
dress does not, then the [i]mmigration [j]udge many not enter an
in absentia order of removal because the statutory notice require-
ment has not been satisfied.” Id.
Fourth, an “address taken from an asylum application or a
change of address form that accomplishes actual delivery of the No-
tice to Appear qualifies as a ‘[§ 1229(a)(1)(F)]’ address because the
alien will actually be informed of the initiation of removal proceed-
ings and the rights and obligations that attach.” Id. at 186 (first em-
phasis added). But when only constructive notice (through, for ex-
ample, mailing) has been provided, “an address can be a [§
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20-14721 J ORDAN, J., Dissenting 5
1229(a)(1)(F)] address only if the alien has first been informed of the
particular statutory address obligations associated with removal
proceedings and of the consequences of failing to provide a current
address. Because that information is first communicated in the No-
tice to Appear, the alien must receive the Notice to Appear before
he or she can ‘provide’ an address in accordance with [§
1229(a)(1)(F)] of the [INA].” Id. at 187.
Fifth, where the Notice to Appear—and its notification of
the in absentia consequences resulting from failure to provide an
updated address—do not reach the noncitizen, it is insufficient for
the government to have generally advised the noncitizen about the
need to update his or her address in another form that does not set
out the in absentia consequences. The “intent [of § 1229(a)(1)(F)]
is to accomplish actual notice,” and the government was wrong to
argue that “the notice requirements of the [INA] are satisfied when-
ever the [government] uses the alien’s last known address—no mat-
ter how old, incomplete, or obviously inadequate that address may
be.” Id. at 189 (emphasis in original). Indeed, “[s]imply mailing the
Notice to Appear to an address authorized under [§ 1229(a)(1)] does
not automatically convert the alien’s last known address into a [§
1229(a)(1)(F)] address.” Id. “In short, the notice requirement lead-
ing to an in absentia order cannot be satisfied by mailing the Notice
to Appear to the last known address of the alien when the alien does
not receive the mailing.” Id. (emphasis in original).
Sixth, an “alien can, in certain circumstances, be properly
charged with receiving notice, even though he or she did not
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6 J ORDAN, J., Dissenting 20-14721
personally see the mailed document. If, for example, the Notice to
Appear reaches the correct address but does not reach the alien
through some failure of the internal workings of the household,
the alien can be charged with receiving proper notice, and proper
service will have been effected. However, if we know that the No-
tice to Appear did not reach the alien and that the alien cannot
properly be charged with receiving it, then the mailing address does
not qualify as a ‘[§ 1229(a)(1)(F)]’ address. In turn, if the mailing
address does not qualify as a [§ 1229(a)(1)(F)] address, then an in
absentia order predicated on mailed notice to that address may not
ensue.” Id. (citation omitted).
Seventh, a noncitizen generally “has an obligation to provide
the [government] with a current address pursuant to the registra-
tion requirements of the [INA],” and “[v]irtually every alien in the
United States is under an affirmative obligation to report address
changes to the Attorney General, regardless of immigration status
or circumstances.” Id. at 190. Although there are various penalties
for failing to update an address, “the entry of an in absentia order
of removal is not one of them.” Id. As a result, “the registration
provisions [of the INA] do not authorize the issuance of an in ab-
sentia order of removal as a consequence of their violation.” Id.
Based on these subsidiary conclusions, the BIA in G-Y-R-
stated its holding this way: “[A]n [i]mmigration [j]udge may not
order an alien removed in absentia when the [government] mails
the Notice to Appear to the last address it has on file for [the] alien,
but the record reflects that the alien did not receive the Notice to
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20-14721 J ORDAN, J., Dissenting 7
Appear, and the notice of hearing it contains, and therefore has
never been notified of the initiation of removal proceedings or the
alien’s address [update] obligations under [8 U.S.C. § 1229(a)(1)] of
the [INA].” Id. at 192. See also Ira J. Kurzban, Immigration Law
Sourcebook 581 (17th ed. 2020) (summarizing G-Y-R-: “If the re-
spondent did not receive the NTA and the notice of hearing it con-
tains and therefore was never notified of the initiation of removal
proceedings or her address obligations under [§ 1229(a)(1)], the IJ
may not enter an in absentia order.”).
Subsequently, the BIA expressly held that G-Y-R- applies with
full force in immigration cases arising in the Eleventh Circuit. See
Anyelo, 25 I. & N. Dec. at 338.2
II
Under 8 U.S.C. § 1229a(b)(5)(C)(ii), an in absentia removal
order can be rescinded “if the alien demonstrates that [she] did not
receive notice in accordance with [§ 1229(a)(1) or (a)(2)].” As laid
out in excruciating detail above, the BIA’s decision in G-Y-R- sets out
2 We recently held that a noncitizen has proper statutory notice for purposes
of in absentia removal under § 1229(a) so long as she receives notice of the
missed hearing under either subsection 1 (the Notice to Appear) or subsection
2 (the Notice of Hearing). See Dacostagomez-Aguilar v. U.S. Att’y Gen., 40 F.4th
1312, 1317–18 (11th Cir. 2022). In doing so, we disagreed with the Ninth Cir-
cuit’s decision in Singh v. Garland, 24 F.4th 1315, 1320 (9th Cir. 2022), cert.
granted, 143 S.Ct. 2688 (2023) (oral argument held on Jan. 8, 2024). See 40 F.4th
at 1318 n.3. Ms. Meyers, of course, did not receive notice under any subsection
of § 1229(a), so Dacostagomez-Aguilar does not control.
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8 J ORDAN, J., Dissenting 20-14721
what notice is required for an immigration judge to issue a removal
order in absentia.
A
The relevant undisputed facts in Ms. Meyers’ case mirror
those in G-Y-R-:
◆ Like the noncitizen in G-Y-R-, Ms. Meyers provided the
government with her Pecan Run address in Ocala years before the
government initiated removal proceedings against her.
◆ Like the noncitizen in G-Y-R-, Ms. Meyers was never
warned prior to the mailing of the Notice to Appear that, if she
failed to update her address, she could be removed in absentia.
◆ As it did with the noncitizen in G-Y-R-, the government
sent the Notice to Appear and a Notice of Hearing to Ms. Meyers
through regular mail at the Pecan Run address, which was the ad-
dress it had on file for her. See A.R. at 64. The Notice to Appear
would have been the first time Ms. Meyers was told that she could
be removed in absentia if she did not update her address, but she
did not receive the Notice to Appear.
◆ At the time the government mailed the Notice to Appear
to her, Ms. Meyers was no longer living at the Pecan Run address.
See A.R. at 84–85.
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20-14721 J ORDAN, J., Dissenting 9
◆ Ms. Meyers never received the Notice to Appear, and
therefore did not know (a) that she had a pending removal proceed-
ing or (b) that she could be removed in absentia. See A.R. at 85.3
In his order, the immigration judge first cited G-Y-R- for the
proposition that “[a]n alien may properly be charged with receiving
the [Notice to Appear] even though she did not personally view the
document.” A.R. at 64. Though this snippet from G-Y-R- was ac-
curate, it was woefully incomplete and taken out of context. What
the BIA explained in G-Y-R- was that “[i]f, for example, the Notice
to Appear reaches the correct address but does not reach the alien
through some failure of the internal workings of the household, the alien
can be charged with receiving proper notice, and proper service
will have been effected.” G-Y-R-, 23 I. & N. Dec. at 189 (emphasis
added). Nothing like that happened here.
In any event, the BIA made clear in G-Y-R- that “if we know
that the Notice to Appear did not reach the alien and that the alien
cannot properly be charged with receiving it, then the mailing ad-
dress does not qualify as a [§ 1229(a)(1)(F)] address. In turn, if the
mailing address does not qualify as a [§ 1229(a)(1)(F)] address, then
an in absentia order predicated on mailed notice to that address
may not ensue.” Id. This case involves the latter scenario, not the
former, and the immigration judge erred by failing to realize this
3 The last two facts are set out in Ms. Meyers’ unrebutted affidavit. The immi-
gration judge, whose order was summarily affirmed by a single member of
the BIA, did not hold an evidentiary hearing and never made a finding discred-
iting or discounting the affidavit.
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10 J ORDAN, J., Dissenting 20-14721
critical difference. Simply stated, Ms. Meyers’ Pecan Run address
was not a § 1229(a)(1)(F) address under G-Y-R- because she was
never advised of the in absentia consequences for failing to update
her address before the Notice to Appear was mailed to her. See id.
at 187–89.4
The immigration judge also said that “a properly addressed
notice that is sent via regular mail according to normal office pro-
cedures is presumed to have been received by the addressee.” A.R.
at 64. The majority relies on this reasoning in its opinion, and
points out that Ms. Meyers has the burden of proving non-receipt
of the Notice to Appear under § 1229a(b)(5)(C)(ii). But this analysis
is significantly flawed for a number of reasons.
First, the BIA case that establishes the presumption of deliv-
ery for documents sent through the U.S. Mail is a case in which—
unlike in G-Y-R- and unlike the situation here—the noncitizen failed
to update his address after he was sent a Notice to Appear to his
correct address warning him that he could be removed in absentia
if he did not update his address, and after he appeared at the first
removal hearing. Only in that context did the BIA say that there is
a presumption of receipt for later mailings like a notice changing
the date and location of future hearings. See In re M-R-A-, 24 I. &
4 The immigration judge cited a number of facts about Ms. Meyers’ Pecan Run
address which predated the issuance of the Notice to Appear. Under G-Y-R-
and Anyelo—discussed later—those facts are irrelevant because at that time
Ms. Meyers had not been warned that she might be removed in absentia if she
did not update her address. See G-Y-R-, 23 I & N. Dec. at 187–89.
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20-14721 J ORDAN, J., Dissenting 11
N. Dec. 665, 666, 671, 675 (BIA 2008) (“[T]he DHS sent the respond-
ent, by regular mail, a Notice to Appear . . . initiating removal pro-
ceedings and setting a removal hearing for August 15, 2006. The
respondent appeared for his hearing on that date and received a
written notice for his next hearing scheduled for February 20, 2007.
. . . In this case, the Notice of Hearing dated November 6, 2006,
was sent to the respondent’s current address, yet he claims that he
did not receive it. . . . Once a respondent has received a Notice to Appear,
he must comply with th[e] statutory responsibility [to update his ad-
dress.]”) (emphasis added). M-R-A- therefore does not apply here.
See Kurzban, Immigration Law Sourcebook, at 713 (“Any notice is-
sued after the NTA has been received is sufficient if it is given at the
most recent address provided by the respondent.”) (emphasis
added).
Second, even assuming that the presumption of delivery
from M-R-A- applies, it is not unrebuttable or conclusive; in fact, it
is “weaker than that accorded to notice sent by certified mail.” M-
R-A-, 24 I. & N. Dec. at 673. So “when a respondent seeks to reopen
proceedings based on a claim of lack of receipt of notice, the ques-
tion to be determined is whether the respondent has presented suf-
ficient evidence to overcome the weaker presumption of delivery
attached to notice delivered by regular mail.” Id.
Third, again assuming that M-R-A- applies, the BIA in that
case explained that an immigration judge may consider a “variety
of factors” in determining whether a noncitizen has overcome the
weaker presumption of delivery for notices sent by regular mail,
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12 J ORDAN, J., Dissenting 20-14721
and these include but are not limited to “the [noncitizen’s] affida-
vit[.]” Id. at 674. Here, Ms. Meyers submitted an unrebutted affida-
vit stating that (a) she did not live at the Pecan Run address when
the Notice to Appear was mailed to that address, and (b) she never
received the Notice to Appear. See A.R. at 84–85. The immigration
judge, however, did not hold an evidentiary hearing. Nor did he
discount or discredit her affidavit in any way. That affidavit there-
fore stood and constituted unrebutted evidence of non-delivery of
the Notice to Appear. See Kurzban, Immigration Law Sourcebook,
at 714 (“[W]here the respondent does not receive the NTA which
informs her of the change of address requirement, she may assert
the lack of notice.”) (citing G-Y-R-).5
B
The majority makes much of the fact that this case involves
a motion to reopen under § 1229(b)(5)(c)(ii), which it says flips the
burden to Ms. Meyers. But in a case just like this one, the BIA is-
sued a precedential decision vacating an immigration judge’s denial
of a motion to reopen an in absentia removal order. See Anyelo, 25
I. & N. Dec. at 339. In that case, as here, the noncitizen had failed
to update his address with the government before he was advised
of the in absentia consequences that might result from such a
5 To the extent that the immigration judge refused to consider Ms. Meyers’
unrebutted affidavit, or decided to give it no weight without providing an ex-
planation, he erred. See, e.g., Manning v. Barr, 954 F.3d 477, 486 (2d Cir. 2020)
(“[W]e find error in the IJ’s and BIA’s failure to consider the unrebutted expert
affidavit of Dr. Harriott, which we assume to be credible.”).
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20-14721 J ORDAN, J., Dissenting 13
failure. The government therefore mailed a Notice to Appear to
the old address it had on file. The noncitizen understandably did
not appear, and he was removed in absentia. When he moved to
reopen, the noncitizen submitted an unrebutted affidavit stating
that he did not live at the address where the Notice to Appear was
mailed, and that as a result he did not receive the Notice to Appear.
The immigration judge denied the motion to reopen. Finding G-
Y-R- controlling, the BIA disagreed with the immigration judge and
granted the noncitizen’s appeal. Here’s how the BIA explained its
decision:
It is undisputed that the respondent did not receive
the Notice to Appear, even though it was sent to his
last known address, and that he did not update the
DHS with his current mailing address after he moved
in 2008. Notwithstanding, the respondent cannot be
charged with getting adequate notice under Matter of
G-Y-R-, because he did not receive the Notice to Ap-
pear containing the required warnings and advisals in-
structing him as to his obligations to advise the Attor-
ney General (not merely the post office) of any
change of address. Matter of G-Y-R- therefore con-
trols. Accordingly, the respondent’s appeal will be
sustained, and the record will be remanded to the
[i]mmigration [j]udge for further proceedings.
Id.
In Ms. Meyers’ case, the immigration judge and the BIA did
not cite, much less discuss, Anyelo and its application of G-Y-R- in
the motion to reopen context. That constitutes fatal error.
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14 J ORDAN, J., Dissenting 20-14721
The majority relegates Anyelo to a footnote, and makes three
attempts to argue it away. None are satisfactory.
First, the majority says that Ms. Meyers did not raise Anyelo
in her initial brief and has therefore forfeited it. This is simply
wrong. Ms. Meyers has always argued that under G-Y-R- her in ab-
sentia removal order cannot stand because she never received the
Notice to Appear, see Petitioner’s Br. at 11–24, and Anyelo is simply
an application of G-Y-R- in the motion to reopen context. We must
therefore apply Anyelo. As our sister circuits have explained, a party
can raise new authorities on appeal in support of a preserved issue.
See, e.g., Templeton v. Jarmillo, 28 F.4th 618, 622 (5th Cir. 2022) (“A
new precedent is not a new argument; it is support for an existing
argument.”); Alston v. Town of Brookline, 997 F.3d 23, 44 (1st Cir.
2021) (“Whether or not an issue is preserved in the trial court does
not depend on what authorities the arguing party cites to that
court.”); United States v. Rapone, 131 F.3d 188, 197 (D.C. Cir. 1997)
(“Whether Rapone was entitled to a jury trial is a question of law
that we review de novo, and we do not think it appropriate to ignore
relevant legal authority simply because it was not considered in the
court below.”). And when an appellate court tries to answer legal
questions, it “should . . . use its ‘full knowledge of its own [and
other relevant] precedents.’” Elder v. Holloway, 510 U.S. 510, 516
(1994) (citation omitted) (holding that an appellate court address-
ing qualified immunity is not limited to the authorities cited in the
district court). A contrary rule “could occasion appellate affirma-
tion of incorrect legal results[.]” Id. at 515 n.3. See also Templeton,
28 F.4th at 622 (“[T]his court is not restricted to analyzing the issues
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20-14721 J ORDAN, J., Dissenting 15
properly presented only on the authorities cited by the parties.”);
Martin v. United States, 1996 WL 708376, at *1 (7th Cir. Dec. 4, 1996)
(“[A] court is not restricted to the cases the parties discuss.”). The
majority cannot ignore Anyelo.
Second, the majority relies on one of our unpublished cases,
Sun v. U.S. Att’y Gen., 543 F. App’x 987 (11th Cir. 2013), to distinguish
Ms. Meyers’ case from G-Y-R and Anyelo. But if we are going to cite
unpublished cases, I would instead rely on a much more recent de-
cision where we correctly noted, that under Anyelo, “if [the noncit-
izen] had begun receiving mail at another address but failed to no-
tify the government of her change of address, it appears that she
could not be charged with receiving notice under BIA precedent.”
Tomas v. U.S. Att’y Gen., 2021 WL 3910275, at *3 n.2. (11th Cir. Sept.
1, 2021).
Third, the majority says that “whether [Ms.] Meyers received
notice was disputed” and that the immigration judge applied “In re
M-R-A- to resolve [that] factual dispute.” That would be a great
point if it were only true. The reality, however, is that there was no
factual dispute to resolve. Ms. Meyers’ filed an affidavit stating that
she had long since moved from the Pecan Run address and thus did
not receive the Notice to Appear or the Notice of Hearing. Signif-
icantly, the government did not dispute the veracity of her affidavit.
It instead argued that Ms. Meyers could nonetheless be removed in
absentia because she had an obligation to keep her address updated
as an applicant for permanent residency. See A.R. 69. As I have
explained, that is plainly wrong under G-Y-R- and Anyelo—absent
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16 J ORDAN, J., Dissenting 20-14721
service of a Notice to Appear, a noncitizen cannot be removed in
absentia for failing to update her address. The immigration judge,
without passing on Ms. Meyers’ affidavit, simply and improperly
adopted the government’s legally erroneous reasoning.
We should remand for the immigration judge to consider
Ms. Meyers’ affidavit. That is what we did in Tomas, 2021 WL
3910275, at *4 (“Neither the [immigration judge] nor the BIA dis-
counted the affidavits from Tomas or her brother, nor did they dis-
cuss or weigh Tomas’s prior affirmative application for relief. By
basing the denial of Tomas’s motion to reopen solely on one non-
dispositive factor, the [immigration judge] and BIA, without any
reasoned explanation, failed to apply BIA precedent requiring con-
sideration of ‘all relevant evidence’ of the ‘particular circum-
stances.’”). See also Hernandez v. Lynch, 825 F.3d 266, 271–72 (5th
Cir. 2016) (“Because the BIA concluded that [Mr.] Torres Hernan-
dez failed to rebut the presumption of notice without considering
all relevant evidence, it abused its discretion in denying [his] mo-
tion to reopen.”). Though an immigration judge “need not address
specifically . . . each piece of evidence,” it is clear here that the im-
migration judge failed to provide a “reasoned explanation” as to
why G-Y-R- did not apply in light of Ms. Meyers’ unrebutted affida-
vit. See Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 874 (11th Cir.
2018).
III
The rule laid out by the immigration judge and the BIA in
this case is that the mailing of a Notice to Appear to the
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20-14721 J ORDAN, J., Dissenting 17
noncitizen’s last known (and provided) address permits an in absen-
tia removal proceeding (a) even though the noncitizen has not been
previously advised that in absentia removal can result if she does
not update her address, and (b) even though the noncitizen never
actually receives the Notice to Appear containing that warning be-
cause she is no longer living at the old address. This is exactly what
G-Y-R- expressly rejected: “[A]n address can be a [§ 1229(a)(1)(F)]
address only if the alien has first been informed of the particular
statutory address obligations associated with removal proceedings
and of the consequences of failing to provide a current address.
Because that information is first communicated in the Notice to
Appear, the alien must receive the Notice to Appear before he or
she can ‘provide’ an address in accordance with [§ 1229(a)(1)(F)] of
the [INA].” G-Y-R-, 23 I. & N. Dec. at 187 (emphasis in original).
And if any further clarity were needed, the BIA applied G-Y-R- in
Anyelo, 25 I. & N. Dec. at 339, which is identical to Ms. Meyers’ case
in all relevant respects and which similarly arose in the motion to
reopen context.
Put another way, the BIA’s decision in this case amounts to
an arbitrary and capricious departure from G-Y-R- and Anyelo. In
the world of administrative law, an agency must generally follow
its rules and precedents or must explain its departures from them.
See N.L.R.B. v. Sunnyland Packing Co., 557 F.2d 1157, 1160 (5th Cir.
1977) (“[A]n agency must either conform itself to its own prior de-
cisions or else explain the reason for its departure.”). And that prin-
ciple applies with full force to the BIA, as we recently explained in
Zarate v. U.S. Att’y. Gen., 26 F.4th 1196, 1207–08 (11th Cir. 2022).
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18 J ORDAN, J., Dissenting 20-14721
Setting aside a BIA decision which had failed to follow earlier BIA
precedent, we held in Zarate that “an agency is generally required
to ‘follow its own procedure’ when the ‘rights of individuals are
affected.’ In fact, we have found that ‘[t]he BIA can . . . abuse its
discretion by not following its own precedents without providing a
reasoned explanation for doing so.’” Id. (citations omitted).
I would grant Ms. Meyers’ petition for review and remand
the case to the BIA with instructions that it correctly apply G-Y-R-
and Anyelo.
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