Denial of a motion to reopen an in absentia removal order; Dada v. Mukasey; Whether the Notice to Appear (NTA) was “facially deficient” depriving the immigration judge (IJ) of jurisdiction; Pereira v Sessions; Hernandez-Perez v. Whitaker; The Attorney General’s promulgation authority under the Immigration & Nationality Act (INA); 8 USC §§ 1103(g)(2) & 1229a(a); 8 CFR §§ 1003.13 & 1003.14(a); §§ 1003.15(b) & 26; Karingithi v. Whitaker (9th Cir.); Whether petitioner established that he never received the subsequent Notice of Hearing; § 1229a(b)(5)(C); Scorteanu v. INS; Soumah v. Holder (Unpub. 6th Cir.); Mota-Roman v. Holder (Unpub. 6th Cir.); §§ 1229(a)(2)(A)(i)–(ii); Thompson v. Lynch; Ly v. Holder (Unpub. 6th Cir.)

The court denied petitioner-Santos-Santos’s petition seeking to reopen removal proceedings on the basis of a deficient NTA where a subsequent Notice of Hearing was issued stating the “date, time, and place” of the hearing and where he failed to offer evidence that he never received it. Santos-Santos, who entered the country illegally, claimed that the NTA served on him did not provide the “date, time, and place” at which he was required to appear, and that he never received the Notice of Hearing containing that information. When he did not appear, he was ordered removed in absentia, and the immigration court denied his motion to reopen the proceedings. Santos-Santos argued that the removal proceedings were void ab initio because of deficient notice, divesting the IJ of jurisdiction over the matter. However, the court ruled in Hernandez-Perez that jurisdiction is vested where a Notice of Hearing containing the mandatory information is sent after the NTA. Moreover, the INA permits the Attorney General to promulgate regulations governing removal hearings, including the vesting of jurisdiction, and “[n]o references to the time and place of the hearing are required to vest jurisdiction under the regulation. The NTA served on Santos-Santos and filed with the immigration court contained all of the requisite information and satisfies the regulation’s definition of a ‘notice to appear.’” The court also held that Santos-Santos failed to meet his burden of rebutting the presumption of delivery by showing that he never received the Notice of Hearing, which he was required to establish in order to obtain rescission of an in absentia deportation order.