Effective Notice to Appear and In Absentia Removal: Clarification in Merlyn Munguia-Ramos v. U.S. Attorney General

Introduction

Merlyn Judith Munguia-Ramos, a non-citizen facing removal proceedings, petitioned the Eleventh Circuit for review after the Board of Immigration Appeals (“BIA”) affirmed (1) an Immigration Judge’s denial of her motion to reopen and rescind an in absentia removal order and (2) the BIA’s denial of her motion to reconsider. The core dispute was whether Munguia-Ramos had been validly served with a Notice to Appear (“NTA”) that included the time and place of her hearing, as required by the Immigration and Nationality Act (“INA”), and whether the BIA abused its discretion in finding effective service and in denying reconsideration.

Key issues:

• Whether an NTA lacking time/place details can trigger an in absentia removal order.
• The standard for presuming effective service by mail of hearing notices.
• The scope of the BIA’s discretion in denying motions to reopen and reconsider.

Parties:

• Petitioner: Merlyn Judith Munguia-Ramos.
• Respondent: U.S. Attorney General.

Summary of the Judgment

The Eleventh Circuit denied Munguia-Ramos’s petition. It held that:

1. The subsequent notice of hearing, mailed to the address provided by Munguia-Ramos, complied with INA § 239(a)(2) because it specified the time and place of the hearing and the consequences of non-appearance.
2. The BIA did not err in applying a presumption of effective service when the notice was properly addressed and mailed and not returned undeliverable.
3. The BIA did not abuse its discretion in denying reconsideration, as the record supported the finding that Munguia-Ramos had received the notice of hearing by mail.

Therefore, the in absentia removal order remained in effect and the motions to reopen and reconsider were properly denied.

Analysis

Precedents Cited

1. INA § 239(a)(1) & (2), 8 U.S.C. § 1229(a)(1) & (2): Sets out the contents of an NTA (including time/place) and of a notice of change in time/place.
2. Pereira v. Sessions, 585 U.S. 198 (2018): Holds that an NTA must be a single document containing all required information, including time and place, to trigger certain consequences (e.g., the stop-time rule).
3. Niz-Chavez v. Garland, 593 U.S. 155 (2021): Reinforces that piecemeal notices do not satisfy INA § 239(a); an NTA is a single integrated document.
4. Campos-Chaves v. Garland, 602 U.S. 447 (2024): Clarifies that a subsequent notice specifying time/place and consequences counts as a “new” notice under INA § 239(a)(2), entitling a non-citizen to challenge an in absentia removal if that notice was never received.
5. Dragomirescu v. U.S. Atty. Gen., 44 F.4th 1351 (11th Cir. 2022): Endorses a presumption of receipt for notices properly addressed and mailed under ordinary office procedures, barring evidence to the contrary.

Legal Reasoning

The court conducted a two-step review. First, it examined whether the BIA correctly applied the statutory notice requirements and the presumption of service; second, it considered whether the BIA abused its discretion in denying reconsideration.

1. Validity of the Notice of Hearing: Although the original NTA lacked time and place (issued with “date and time to be set”), the government later mailed a notice specifying hearing details. Under INA § 239(a)(2), such a “notice of change” need only include the new date/time, place, and consequences of non-attendance. This subsequent notice was properly mailed to the address Munguia-Ramos provided and was not returned undelivered. Thus, it satisfied the statute and enabled the IJ to order removal in absentia.

2. Presumption of Effective Service: Drawing on Dragomirescu, the court applied the presumption that properly addressed and mailed notices are received unless returned by USPS or rebutted by credible evidence. Munguia-Ramos offered only an unverified attestation of non-receipt, which the BIA could reject as insufficient to overcome the presumption.

3. Motion to Reopen & Reconsideration: A motion to reopen based on lack of notice is timely if filed “at any time” when the non-citizen shows non-receipt (INA § 240(b)(5)(C)). But because the hearing notice was validly served, reopening was unwarranted. For reconsideration, the BIA’s discretionary denial was neither arbitrary nor contrary to its own precedents, as it offered a reasoned explanation for concluding that service was effective.

Impact

This decision provides several key takeaways for immigration practitioners and adjudicators:

• Clarity on Subsequent Notices: A follow-up notice specifying time and place can cure an NTA’s initial defects under INA § 239(a)(2). The case aligns with Campos-Chaves in treating such notices as “new” and binding.
• Service Presumptions Remain Strong: Courts will presume receipt of hearing notices properly addressed and mailed, absent compelling contrary evidence. Merely attesting non-receipt is unlikely to overcome that presumption.
• BIA Discretion Affirmed: The Eleventh Circuit will uphold BIA denials of reopening and reconsideration where the agency furnishes a reasoned explanation and correctly applies notice and service rules.
• Guidance for Non-Citizens: Non-citizens must update addresses and monitor mail. They should keep records of mail receipts, forwarding instructions, or affidavits from roommates/family to rebut presumptions of delivery if service is at issue.

Complex Concepts Simplified

• Notice to Appear (NTA): A document that starts formal removal proceedings. It must tell the non-citizen who they are, what law they allegedly violated, and when/where they must appear.
• Notice of Change in Time or Place: A follow-up notice that only needs to inform a non-citizen of the new hearing date, location, and penalties for failing to show up. It augments, rather than replaces, the original NTA.
• In Absentia Removal: If a non-citizen does not appear at a hearing after proper written notice, an immigration judge can order removal “in absentia.”
• Motion to Reopen: A request to reopen removal proceedings, often based on new evidence or lack of notice. Under INA § 240(b)(5)(C), a missing notice allows reopening at any time.
• Presumption of Service: Courts generally assume that a mailed document was received if it was properly addressed and not returned unopened.

Conclusion

Merlyn Munguia-Ramos v. U.S. Attorney General reaffirms critical principles in immigration procedure:

1. Subsequent hearing notices under INA § 239(a)(2) can cure initial NTA defects.
2. The presumption of effective service by mail is robust and requires strong rebuttal evidence.
3. The BIA’s discretion in denying motions to reopen or reconsider will be upheld when it adheres to statutory criteria and its own precedents.

This decision provides practitioners with clearer guidance on notice requirements and underscores the importance for non-citizens to maintain current contact information and to proactively monitor all communications from immigration authorities.