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Barrios-Cantarero v. Holder

Facts

Gustavo Barrios-Cantarero, a native and citizen of Guatemala, entered the U.S. with his brother and was apprehended by Border Patrol. Each brother received a separate Notice to Appear (NTA) but only one Notice of Hearing (NOH) was sent to their shared address, addressed solely to his brother. Barrios-Cantarero did not attend the hearing, leading to an in absentia removal order against him. Over a decade later, he sought to reopen the proceedings, claiming he had not received proper notice.

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 agents gave each brother a separate Notice to Appear [**2] ('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.

Issue

Did the Board of Immigration Appeals abuse its discretion by denying Barrios-Cantarero's motion to reopen removal proceedings based on insufficient notice?

Did the Board of Immigration Appeals abuse its discretion by denying Barrios-Cantarero's motion to reopen removal proceedings based on insufficient notice?

Rule

Under 8 U.S.C. 1229a(b)(5)(C)(ii), an alien is entitled to reopen removal proceedings if they did not receive proper notice of the proceedings.

Under 8 U.S.C. 1229a(b)(5)(C)(ii), an alien is entitled to reopen removal proceedings if they did not receive proper notice of the proceedings.

Analysis

The court determined that the BIA erred in concluding that Barrios-Cantarero received proper notice through a letter addressed to his brother. The regulations require that notice be addressed to the affected party, and since the NOH was only sent to Adrian Eliseo, it did not constitute proper notice for Barrios-Cantarero. The BIA's failure to apply the relevant regulation in its decision was a legal error.

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.

Conclusion

The court granted Barrios-Cantarero's petition for review, concluding that the BIA abused its discretion in denying his motion to reopen due to insufficient notice.

Accordingly, the petition for review of the Board of Immigration Appeals decision is GRANTED.

Who won?

Gustavo Barrios-Cantarero prevailed in the case because the court found that he did not receive proper notice of the removal proceedings, which entitled him to reopen the case.

Gustavo Barrios-Cantarero prevailed in the case because the court found that he did not receive proper notice of the removal proceedings, which entitled him to reopen the case.

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