Background
Omar Rolando Ricardo Jacques, a Jamaican citizen detained by Immigration and Customs Enforcement, sought withholding of removal based on the danger he faced in Jamaica following his politically active mother’s murder. An immigration judge twice granted withholding, concluding that Jacques’s Utah misdemeanor conviction for possessing marijuana with intent to distribute did not bar relief as a particularly serious crime.
The Department of Homeland Security appealed both decisions. During the first appeal, the Board of Immigration Appeals mailed the notice and briefing schedule to an address different from the detention address DHS had reported. During the second appeal, DHS notified the immigration authorities that Jacques had been detained at another address since 2021, but neither DHS nor the BIA resent the appeal materials there. Jacques filed no brief in either appeal, and the BIA ultimately ruled that his conviction was a particularly serious crime and denied withholding.
The Court’s Holding
The Ninth Circuit held that Jacques’s due process rights were violated. When DHS informs the BIA that a detained noncitizen is located somewhere other than the address used for appeal notices or a briefing schedule, and the government takes no additional reasonable steps to provide notice, the notice is not reasonably calculated to reach the detainee. The government’s mailing failures prevented Jacques from participating in both administrative appeals.
The majority also found actual prejudice because Jacques could have challenged whether his Utah conviction categorically qualified as a drug-trafficking aggravated felony, a prerequisite to applying the more stringent particularly-serious-crime framework from Matter of Y-L-. The court did not decide that categorical question; it held only that the issue remained sufficiently open that Jacques’s participation might have affected the outcome.
The court granted the petition, vacated the BIA’s orders sustaining both DHS appeals, and remanded with instructions to re-notice DHS’s appeal from the immigration judge’s June 6, 2022 decision at Jacques’s correct detention address and issue a new briefing schedule. Judge Bennett dissented, reasoning that the conviction categorically qualified as a drug-trafficking aggravated felony, that Jacques therefore could not show prejudice, and that the majority improperly developed an argument he had not adequately presented.
Key Takeaways
- Notice to a detained noncitizen is constitutionally inadequate when the government knows the mailing address differs from the detainee’s reported location but takes no reasonable follow-up steps.
- A petitioner shows prejudice when the lack of notice may have prevented a potentially outcome-changing argument, even if the reviewing court does not resolve that argument’s ultimate merits.
- The Ninth Circuit returned the case to the BIA for a properly noticed appeal and briefing, rather than directing that withholding of removal be granted.
Why It Matters
The decision places responsibility on the government to respond when its own records indicate that appellate materials were mailed to the wrong detention facility. For detained noncitizens, merely sending papers is insufficient when the government knows its chosen address is ineffective.
The ruling also illustrates that prejudice from defective notice can rest on a meaningful, unresolved legal argument. Here, uncertainty over whether the Utah offense was categorically a drug-trafficking aggravated felony entitled Jacques to an opportunity to defend the immigration judge’s favorable ruling before the BIA.