Board of Immigration Appeals — Manuel Duran Appeal

226 Pages·2016·20.85 MB·English

Jeremy Jong (NJ066472014) DETAINED
Lead Attorney
Southeast Immigrant Freedom Initiative
Southern Poverty Law Center
PO Box 1092
Jena, LA 71342
Phone: [phone]
Fax: [phone]
Email: [email protected]

Counsel for Respondent

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION
REVIEW BOARD OF IMMIGRATION APPEALS

)
In the Matter of: )
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Duran Ortega, Manuel Leonidas ) File No. A
)
Respondent. )
)

BRIEF IN SUPPORT OF RESPONDENT’S APPEAL FROM THE ORDER OF THE
IMMIGRATION JUDGE DENYING MOTION TO REOPEN PROCEEDINGS
DETAINED

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION
REVIEW BOARD OF IMMIGRATION APPEALS

)
In the Matter of: )
)
Duran Ortega, Manuel Leonidas ) File No.
)
Respondent. )
)

BRIEF IN SUPPORT OF RESPONDENT’S APPEAL FROM THE ORDER OF THE
IMMIGRATION JUDGE DENYING MOTION TO REOPEN PROCEEDINGS

Respondent Manuel Leonidas Duran Ortega appeals the Immigration Judge’s April 24,
2018 order denying his Motion to Reopen Proceedings (“MTR”). The Immigration Judge erred
in (1) finding that the Department of Homeland Security (“DHS”) met its notice requirements
under the Immigration and Nationality Act (“INA”) when it sent Mr. Duran Ortega a notice of
hearing to an incomplete address that was subsequently returned to sender; (2) finding that Mr.
Duran Ortega did not demonstrate materially changed circumstances in El Salvador that
warranted reopening his proceedings to permit him to apply for asylum; and (3) refusing to
reopen his proceedings sua sponte in light of the serious constitutional issues surrounding his
arrest and detention.
STATEMENT OF FACTS AND PROCEDURAL HISTORY

A. Statement of Facts
Mr. Duran Ortega was born on January 14, in Ozatlan, El Salvador. See MTR, Exh.
A (Affidavit of Manuel Leonidas Duran Ortega) ¶ 1. In 2005, while working as a television
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station manager, Mr. Duran Ortega began receiving threats from a man working for a different
television station, and fled El Salvador in June of 2006. Id. ¶ 2.
Mr. Duran Ortega entered the United States on June 28, 2006 and Customs and
Border Protection (“CBP”) arrested him the next day. Id. ¶ 3. Mr. Duran Ortega provided an
address to CBP where he could receive mail. Id. ¶ 3. The address was the mailing address
for an apartment complex. Id. CBP then gave Mr. Duran Ortega some forms in English. Id.
¶ 4. They did not orally translate or otherwise inform Mr. Duran Ortega of his obligation to
attend future court hearings and to keep the Court advised of future address changes. Id.
On August 18, 2006, the Immigration Court mailed notice of Mr. Duran Ortega’s
January 31, 2007 master calendar hearing to 6428 Idlewild, Charlotte, NC 28212, but that
notice was returned to the Immigration Court by the U.S. Postal Service marked “Return to
Sender - Insufficient Address – Unable to Forward.” See MTR, Exh. B (Notice of Hearing in
Removal Proceedings and Returned Mailing Envelope). Nothing in the record indicates that
Mr. Duran Ortega was ever successfully served with the notice. At all times relevant, Mr.
Duran Ortega was reachable via mail at the Idlewild address. At Mr. Duran Ortega’s January
31, 2007 hearing, the Immigration Judge ordered him removed in absentia. See MTR, Exh.
C (Immigration Judge Decision). Mr. Duran Ortega only discovered that he had been
ordered removed in 2014, when he consulted with an immigration attorney, who advised
Mr. Duran Ortega not to file a motion to reopen. See MTR, Exh. A ¶ 5.
Mr. Duran Ortega eventually moved to Memphis, Tennessee. He was involved with
several media outlets there and eventually founded Memphis Noticias, a news outlet
dedicated to community reporting for the Memphis-area Latino community. Id. ¶ 6. Through
Memphis Noticias, Mr. Duran Ortega has frequently covered racial profiling and abuse by
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the Memphis Police Department (“MPD”) against members of the black and Latino
communities and cooperation between ICE and the MPD. See MTR, Exh. D (Memphis
Noticias Articles and Posts).
This coverage was often embarrassing to the MPD. For example, on July 19, 2017,
after the MPD had claimed to not be cooperating with ICE, Mr. Duran Ortega posted an
interview with a woman who allegedly witnessed ICE and MPD conducting a joint
operation. Id. The MPD was not happy about this and asked Mr. Duran Ortega to take down
the post. See MTR, Exh. E (Text Messages from Memphis Police Department). Similarly,
on February 9, 2018, Mr. Duran Ortega called MPD “negligent” in their handles of the case
of Bardomiano Perez Hernandez, who had been murdered in December of 2017, but whose
body had remained in a police impound lot until it was discovered two months later by his
friend. See MTR, Exh. F (Robbery, Murder Suspects Found Hiding in Attic).
On April 3, 2018, Mr. Duran Ortega was covering a peaceful protest at the Shelby
County Criminal Justice Center against MPD’s cooperation with the ICE for Memphis Noticias.
See MTR, Exh. H (Ice Arrests Journalist who Covered Protest against Agency’s Policies). The
protest was part of the MLK50, a commemoration of the fiftieth anniversary of Martin Luther
King Jr.’s death. See MTR, Exh. I (Rolling Block Party Ends at County Jail). During the protest,
Mr. Duran Ortega was wearing his press credentials and filming when a MPD officer told him to
step back. See MTR, Exh. A ¶ 13. Mr. Duran Ortega immediately complied, but two MPD
officers nonetheless handcuffed and arrested him. Id. The police charged him with disorderly
conduct and obstruction of a highway or passageway, but those charges were dismissed by the
Shelby County Criminal Court on April 5, 2018. See MTR, Exh. Z (Shelby County Criminal
Justice System Portal Case Information). An hour and a half after the charges were dismissed,
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the Shelby Country Sherriff’s Office released Mr. Duran Ortega to Immigration and Customs
Enforcement (“ICE”).
B. Decision of the Immigration Judge
On April 8, 2018, Mr. Duran Ortega filed a Motion to Reopen Proceedings (“MTR”)
with the Atlanta Immigration Court. See MTR. Through counsel, Mr. Duran Ortega argued
that since 2007, there has been increased persecution of journalists and individuals espousing
pro-transparency and anti-corruption political views in El Salvador, and that this constituted a
material change in country conditions which rendered his MTR timely. Id. at 3-9. Mr. Duran
Ortega also demonstrated that the was prima facie eligible for asylum, withholding of
removal, and relief under the Convention Against Torture, because he had a well-founded fear
of persecution on the basis of his political opinion and particular social group as a Salvadoran
journalist. Id. Mr. Duran Ortega also contended that he did not receive proper notice of his
January 31, 2007 master calendar hearing date, and that the Immigration Court should use its
discretion to reopen the case given the extraordinary circumstances and constitutional
concerns resulting from his targeting by the MPD and ICE in response to his journalistic
activities.
On April 24, 2018, the Immigration Judge denied Mr. Duran Ortega’s MTR. I.J. at 8.
The Immigration Judge held that, even though the 2006 Notice of Hearing was returned to
DHS marked “incomplete address,” the statutory requirements of notice had been met. I.J. at
4. Furthermore, the Immigration Judge concluded that, despite the copious evidence submitted
by Mr. Duran Ortega demonstrating mounting levels of violence and intimidation against
Salvadoran journalists focused on rooting out corruption, he had failed to demonstrate
materially changed country conditions in El Salvador. Id. at 7. In so deciding, the Immigration
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Judge took administrative notice of and cited extensively from a 2017 U.S. State Department
Country Report for El Salvador, without providing Respondent any notice or opportunity to be
heard concerning the conclusions in the report. Id. at 6-7. Further, the Immigration Judge
failed to examine critical sources cited in the 2017 report, which demonstrated that violence
targeting Salvadoran journalists has increased in the years since Mr. Duran Ortega was
ordered removed. The report and source are included herein. Exhs. 1, 2.
STATEMENT OF ISSUES PRESENTED FOR REVIEW
1. Whether the Immigration Judge erred in finding that Mr. Duran Ortega was properly
ordered removed in absentia
2. Whether the Immigration Judge erred in finding that there was no material change in
country conditions in Mr. Duran Ortega’s case
3. Whether the Immigration Judge erred in finding that this case did not present exceptional
circumstances warranting sua sponte reopening
STANDARD OF REVIEW
The Board reviews an Immigration Court’s decision de novo as to questions of law. 8
C.F.R. §§ 1003.1(d)(3)(ii). The Board reviews an Immigration Court’s findings of fact under the
“clearly erroneous” standard. 8 C.F.R. §§ 1003.1(d)(3)(i)-(ii).
Mixed questions of law and fact, such as question of whether the facts in the record meet
a statutory requirement, are reviewed by the Board de novo. See Matter of V-K-, 24 I&N Dec.
500, 501-02 (BIA 2008) (“we conclude that an Immigration Judge’s prediction or finding
regarding the likelihood that an alien will be tortured may be reviewed de novo because, like a
conclusion relating to whether a statutorily prescribed chance of persecution or level of hardship
exists, it relates to whether the ultimate statutory requirement for establishing eligibility for relief
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was met and is therefore a mixed question of fact and law”). Here, Mr. Duran Ortega appeals the
Immigration Judge’s finding that the facts of his case did not meet the statutory requirements for
reopening his case under INA §§ 240(c)(7)(C) and 240(b)(5)(C). I.J. at 4, 7. Therefore, the Board
should review the Immigration Judge’s decision de novo.
As argued below, before the Immigration Court can order a respondent removed in
absentia, DHS must meet its statutory burden of establishing that that respondent was provided
with written notice his immigration proceedings. INA § 240(b)(5)(A). In cases where this burden
is not met, the ordinary 180 day deadline for a motion to reopen does not apply and an in
absentia removal order should be rescinded. INA § 240(b)(5)(C).
An applicant who is subject to a final order of removal and wishes to reopen the
proceedings must move to reopen within 90 days of the date on which the removal order became
final. INA § 240(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Nevertheless, the time limit is inapplicable
if the applicant can demonstrate “changed country conditions arising in the country of nationality
or the country to which removal has been ordered, if such evidence is material and was not
available and would not have been discovered or presented at the previous proceeding.” INA
§ 240(c)(7)(C)(ii); see 8 C.F.R. § 1003.2(c)(3)(ii).
For the purposes of a motion to reopen, an applicant need not prove his entitlement to
relief. See Matter of L-O-G-, 21 I. & N. Dec. 413, 419 (BIA 1996) (“In considering a motion to
reopen, the Board should not prejudge the merits of a case before the alien has had an
opportunity to prove the case.”). Rather, an applicant must only show that he is prima facie
eligible for relief, which requires that “the evidence reveals a reasonable likelihood that the
statutory requirements for relief have been satisfied.” Matter of S-V-, 22 I&N Dec. 1306, 1308
(BIA 2000).
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ARGUMENT
I. The Immigration Judge Erred in Finding that Mr. Duran Ortega Was Properly
Served with his NTA and Notice of Hearing

A. The Immigration Judge’s Reasoning

In light of the uncontroverted evidence that showed that Mr. Duran Ortega never actually
received the Notice of Hearing mailed by the Atlanta Immigration Court on August 18, 2006
informing him of a January 31, 2007 master calendar hearing, Mr. Duran Ortega argued that his
in absentia removal order should be rescinded due to improper notice, and his motion to reopen
proceedings should be granted. Mr. Duran Ortega further argued that initial notice to appear was
not properly served, because it was given to him in English, which he could not read at the time,
and did not have a date and time for a subsequent hearing.
The Immigration Judge rejected both these arguments. He first found that, since Mr.
Duran Ortega had allegedly provided the address “
,” and the Immigration Court sent the Notice of Hearing to that address, the notice
requirements had been met—even though the Notice of Hearing was returned to the sender; i.e.,
to the Immigration Court, and was never delivered. I.J. at 4. According to the Immigration Judge,
DHS had no duty in carrying its burden for an in absentia order to conduct due diligence and
identify whether “ ” was a proper address, or was missing a necessary thoroughfare
identifier: rather, Mr. Duran Ortega was required to identify his “error” and submit a correct
address. Id. The Immigration Judge also found that the NTA did not need to contain a date and
time for the upcoming hearing to be valid, nor did it need to be printed or explained in Spanish, a
language that Mr. Duran Ortega could understand. Id. at 3.

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