United States Court of Appeals
                       For the First Circuit



No. 14-1766

                        ALAN SOARES RENAUT,

                            Petitioner,

                                v.

         LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL,*

                            Respondent.



              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS



                              Before

                   Howard, Thompson, and Barron,
                          Circuit Judges.




          William P. Joyce, with whom Joyce & Associates P.C. was
on brief, for petitioner.
          Kiley Kane, Senior Litigation Counsel, Office of
Immigration Litigation, United States Department of Justice Civil
Division, with whom Joyce R. Branda, Acting Assistant Attorney
General, and Julie M. Iversen, Senior Litigation Counsel, were on
brief, for respondent.



     * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as the respondent.
June 3, 2015
             THOMPSON,   Circuit   Judge.      Alan   Soares   Renaut   is   a

Brazilian citizen who unlawfully entered the United States, was

detained at the Arizona border, failed to attend his deportation

hearing, and was ordered by an immigration judge ("IJ") to be

removed from the country. Renaut, who claims he was never notified

that his removal hearing had been scheduled, asked an IJ to reopen

his case.    The IJ declined, and on its appellate review, the Board

of Immigration Appeals ("BIA") affirmed the IJ's denial.

             Now on appeal, Renaut argues that the IJ applied the

wrong legal standard in reviewing his motion, and that when its

turn came around, the BIA ignored the IJ's error and engaged in

its own (impermissible) factfinding to affirm.

             We agree that the IJ dropped the ball and applied the

wrong   legal   standard   in   reviewing     Renaut's   motion   (albeit    a

different legal error from the one Renaut identified).              The BIA

likewise missed by affirming the IJ based on that incorrect legal

principle.      Therefore, we vacate the BIA's decision and remand

Renaut's case to the BIA.

                                 BACKGROUND

             The relevant facts are undisputed.          Renaut is a native

and citizen of Brazil who entered the United States through the

Arizona-Mexico border in January 2003 without being inspected by

an immigration officer.         He was detained upon entry and, while


                                   - 1 -
detained, personally served with a Notice to Appear before the

Immigration Court in Florence, Arizona, for a to-be-scheduled

removal hearing.    The notice charged Renaut with removability,

pursuant to the Immigration and Nationality Act ("the Act"), which

provides that "[a]n alien present in the United States without

being admitted or paroled, or who arrives in the United States at

any time or place other than as designated by the Attorney General,

is inadmissible."   8 U.S.C. § 1182(a)(6)(A)(i).   The notice also

warned: "You are required to provide the [government], in writing,

with your full mailing address . . . . You must notify the

Immigration Court immediately by using [a change of address form]

whenever you change your address . . . during the course of this

proceeding."

          Renaut was detained for about two months before being

released from a detention facility.    On March 3, 2003, he asked

that his case be moved to the Boston Immigration Court.     In his

written motion, which was filed on his behalf by a representative,1

Renaut stated that "[h]earing notices and other documents may be

sent to the respondent at . . . 6 Corregidor Rd." in Framingham,




     1 We refer to Renaut's counsel as a "representative" because
Renaut now questions whether the person paid to represent him was
actually an attorney.

                              - 2 -
Massachusetts.   The motion was allowed on March 14, 2003, and

Renaut's case was transferred.

          On January 28, 2004, the Boston Immigration Court mailed

a notice to the Corregidor Road address to inform Renaut that he

was scheduled to appear for a removal hearing on March 2, 2004.

According to Renaut, he lived at the Corregidor Road home with a

friend for a few months after his release, but even after moving

out, continued to receive and collect his mail there. The friend's

sworn statement conveyed the same story.    The hearing notice was

returned to the court, however, with a stamp on the envelope that

read, "ATTEMPTED, NOT KNOWN."2     Renaut thus did not receive the

hearing notice, and did not appear for the hearing. An immigration

judge in absentia ordered his removal from the United States to

Brazil.

          Fast-forward eight years.      In February 2012, Renaut

married his now-wife, who is a United States citizen.    She filed

a form I-130 Petition for Alien Relative on her hubby's behalf

(U.S. citizens and lawful permanent residents may file this type

of petition to help certain relatives become lawful permanent

residents).   On April 9, 2013, Renaut also asked an immigration



     2 According to the government (and undisputed by Renaut),
"attempted, not known" means that delivery was attempted, but the
addressee was "not known" at the address.

                                 - 3 -
judge to reopen the removal proceedings in light of his pending I-

130 petition so that he could ask for adjustment of status to

voluntary departure, arguing that he never received the removal

hearing notice.

          On April 30, 2013, the immigration judge denied the

motion to reopen.   The IJ found that Renaut was "made aware of his

obligation to immediately notify the Immigration Court when he

changed his address . . . and he failed to do so."     The IJ then

found that "although the hearing notice was returned to the Court

as undeliverable, it had been sent to the Respondent at his last

known address," and denied the motion.

          Renaut appealed to the BIA, arguing that the IJ "failed

to appreciate the distinction between the regulatory standards

that govern the entering of an in absentia removal order and the

requirements" to reopen one.      The BIA nonetheless affirmed the

immigration judge's denial because reopening the case was "not

warranted on account of lack of notice," given that Renaut "evaded

delivery of a properly sent [hearing notice] by relocating without

providing the required change of address."

          This appeal followed.

                        STANDARD OF REVIEW

          "In the immigration context, judicial review ordinarily

focuses on the BIA's decision."    Jianli Chen v. Holder, 703 F.3d


                               - 4 -
17, 21 (1st Cir. 2012).       "But where, as here, the BIA adopts

portions of the IJ's findings while adding its own gloss, we review

both the IJ's and the BIA's decisions as a unit."       

            "We review the . . . denial of a motion to reopen for

abuse of discretion."     Chen v. Gonzales, 

, 153 (1st

Cir. 2005) (citation omitted).       "The agency's resolution of such

a motion will stand unless that resolution rests on a material

error of law or a manifestly arbitrary exercise of judgment." Meng

Hua Wan v. Holder, 

, 56 (1st Cir. 2015).

                              DISCUSSION

            As Renaut's Notice to Appear warned, when facing removal

proceedings, an alien must "immediately provide (or have provided)

the Attorney General with a written record of an address . . . at

which   the     alien   may   be    contacted   respecting   [removal]

proceedings."    8 U.S.C. § 1229(a)(1)(F)(i).      An alien must also

keep his address current by "provid[ing] the Attorney General

immediately with a written record of any change of the alien's

address."     

    These address requirements

are important because the Act allows the Immigration Court to serve

notices to appear (and other subsequent notices of scheduling

changes) to an alien "through service by mail."      

                                   - 5 -
             Serious consequences can ensue for an alien who does not

comply with the address reporting requirements.      The Act provides

that "[n]o written notice [of a removal hearing] shall be required

. . . if the alien has failed to provide the address required under

section 1229(a)(1)(F)."      

    And failing to

appear for a removal hearing means that the presiding immigration

judge must order the alien's removal in absentia, so long as "the

[government] establishes by clear, unequivocal, and convincing

evidence that the written notice was so provided and that the alien

is removable."     

    The Act assumes that the

government has met this evidentiary burden if it can show that

notice was sent by regular mail and "there is proof of attempted

delivery to the last address provided by the alien in accordance

with subsection (a)(1)(F)."     

             Despite this presumption of effective delivery written

into the statute, the Act does recognize that even if a notice was

properly sent to someone's last-reported address, he still might

not receive it.       Upon motion, then, an immigration judge may

rescind an in absentia removal order "if the alien demonstrates

that [he] did not receive notice in accordance with [§ 1229(a)(1)

or (2)]."3    

   Thus, an alien's case could


     3 An immigration judge could also rescind "upon a motion to
reopen filed within 180 days after the date of the order of removal

                                 - 6 -
be reopened if he failed to receive notice, so long as he complied

with the statute's address requirements.            "[W]hen considering a

motion to reopen, the central issue is no longer whether the notice

was properly mailed, as it is for the purpose of initially entering

the in absentia order, but rather whether the alien actually

received the notice."      Matter of M-R-A-, 24 I. & N. Dec. 665, 672

(B.I.A. 2008) (citing Lopes v. Gonzales, 

, 84 (2d Cir.

2006)).

            Renaut's notice was returned to the Immigration Court,

and thus, the government admits that Renaut did not receive his

notice.    Non-receipt does not, however, end the inquiry.           The BIA

has said, for instance, that an alien can't hide the ball when it

comes time to appear in court, meaning he "cannot evade delivery

of   a   properly   sent   Notice   of   Hearing   by   relocating   without

providing the required change of address and then request reopening

of in absentia proceedings on the basis of a claim that he did not

receive notice."     Matter of M-R-A-, 24 I. & N. Dec. at 675.        Here,

the IJ (and then the BIA) relied on this "no evasion" rule to deny

Renaut's motion.     In response, Renaut contends that even though he

did not update his address after moving from the Corregidor Road




if the alien demonstrates that the failure to appear was because
of exceptional circumstances," 8 U.S.C. § 1229a(b)(5)(C)(i), but
Renaut has not raised such an argument on appeal.

                                    - 7 -
address, he was not evading notice because he continued to receive

mail there after moving out.

          The   IJ   did   not   address   this   assertion,   but   denied

Renaut's motion on the ground that he did not comply with his

obligation to notify the Immigration Court when he "changed his

address," and that "although the hearing notice was returned to

the Court as undeliverable, it had been sent to the Respondent at

his last known address."     The BIA took a similar tack and assumed

(without deciding) that Renaut was telling the truth when he said

"his friend continued to reside on Corregidor Road and was able to

receive mail for him."     Even still, the BIA decided, Renaut's case

could not be reopened because his Notice to Appear "properly

advised the respondent that he was required [to provide] 'your

full mailing address' (as opposed to the mailing address of a

friend)," and because Renaut did not provide his residential

address, he evaded notice.

          According to both the IJ and BIA, then, Renaut could not

have his case reopened because he never bothered to provide the

government with his new residential address after he physically

moved from the Corregidor Road home.       Relocating without providing

an updated residential address -- even if a valid mailing address

is still on file -- categorically amounts to evasion of a hearing

notice, the IJ and BIA assumed.


                                   - 8 -
           We conclude that the IJ and BIA abused their discretion

in so deciding, and that a remand is the appropriate relief to

cure the error.   While evasion is certainly a legitimate reason to

deny a motion to reopen, "evasion" by its nature entails some

wrongdoing, i.e., some effort to actually avoid the notice.           See

Sanchez    v.   Holder,   

,   233   (6th   Cir.   2010)

("[P]roceedings will not be reopened if the alien fails to receive

a hearing notice because the alien's own conduct made him or her

unreachable.").    Particularly concerning is that the BIA does not

offer any authority to support its generally-applicable contention

that Renaut was required to provide a residential address (as

opposed to a valid mailing address), such that he has committed

some lawlessness by his mere failure to provide a residential

address.

           It is also not apparent to us why the BIA (and the

government in its briefing) assume "address" means residential

address.    Renaut's Notice to Appear informed him that he was

"required to provide . . . your full mailing address," and that he

would have to "notify the Immigration Court immediately by using

[a change of address form] whenever you change your address . . .

during the course of this proceeding."          (Emphasis added).     The

notice mentions nothing of a residential or physical address

requirement. Likewise, the Act makes no indication that a physical


                                 - 9 -
address is required.     See 8 U.S.C. § 1229(a)(1)(F)(i) (requiring

alien to provide an address where he "may be contacted respecting

[removal] proceedings"); 

(requiring alien

to "provide . . . a written record of any change of the alien's

address").     We are aware of no BIA precedent explaining that

"address" is defined as a residential one in this context.                The

government even admitted at oral argument that an alien could be

permitted to provide, for instance, a post office box number where

he could be contacted.       Thus, we simply do not see the basis for

the BIA's brusque conclusion that Renaut "evaded" his hearing

notice merely because he asked that his removal communications be

sent to what he claims was a valid mailing address, as opposed to

his (ever-changing) abode.         See also Arrieta v. I.N.S., 

, 432 (9th Cir. 1997) (per curiam) (stating that the BIA erred

by requiring petitioner to provide a residential address, even

though she provided a valid mailing address); Mecaj v. Mukasey,

, 451 (6th Cir. 2008) (unpublished) (concluding

that petitioner "may present evidence that he normally would

receive correspondence at that location, yet did not receive

notice"); Gomez-Palacios v. Holder, 

, 361 (5th Cir.

2009) (finding that petitioner was not entitled to rescission

because "his failure to receive actual notice of the time of his

postponed    hearing   was   the   result   of   not   complying   with   his


                                   - 10 -
obligation to keep the immigration court apprised of his current

mailing address" (emphasis added)).

             Along similar lines, we likewise reject the government's

reading of § 1229a(5)(B).            The Act provides that "[n]o written

notice shall be required [to remove an alien in absentia] if the

alien has failed to provide the address required under section

1229(a)(1)(F) of this title."              8 U.S.C. § 1229a(5)(B).               The

government assumes this provision of the statute means that an

alien   is   not     entitled   to   notice    at   all   if   he   changes      his

residential address without informing the Immigration Court.

             Under    the   government's      reading,    then,     an   alien    in

Renaut's situation is outright precluded from arguing that his

removal proceeding should be reopened for failure to receive notice

because his physical relocation meant that he was no longer

entitled to notice of the removal hearing at all.              But, as we have

explained, it is not at all clear that an alien fails to comply

with the address requirement when he changes residence.                    And in

any event, the statute still instructs the government to send

notice to the alien's last known address, whatever that address

may be.   See 8 U.S.C. § 1229(c); accord 

("[B]ecause [the alien] did provide an address, the government

remained under an obligation to send notice to that address."

(emphasis in original)).         Thus, the mere fact that an alien has


                                     - 11 -
changed his residential address neither categorically precludes

that alien from moving to reopen his removal proceeding nor, once

he does so, automatically compels a finding that he evaded notice.

            As we indicated above, evasion of a hearing notice is a

perfectly legitimate reason to deny a motion to reopen.                  But

whether Renaut "evaded" his notice is a factual determination that

must be made upon an evidentiary evaluation.         See Matter of M-R-

A-, 24 I. & N. Dec. at 674 (holding that "all relevant evidence

submitted to overcome the . . . presumption of delivery must be

considered").      Problematic here is that the IJ did not make

sufficient factual findings that would allow us to affirm an

evasion finding.       Namely, Renaut provided evidence to show that he

was still successfully receiving other mail at the Corregidor Road

address, even after he moved out. Tellingly, and as the government

conceded at argument, Renaut's actual removal order was sent to

the Corregidor Road address and did not get bounced back, which

suggests that Renaut was being truthful when he said that he could

still receive immigration-related mail there.         No mention of this

evidence, or Renaut's other justifications for non-receipt, are

mentioned   in   the    IJ's   factual   findings.   And   while   the   BIA

acknowledged Renaut's argument that his friend was able to receive

mail for him at the Corregidor Road address, neither the IJ nor

BIA made factual findings that resolved whether or not this


                                   - 12 -
assertion was true.4   We therefore cannot meaningfully review the

validity of Renaut's motion.   See Rotinsulu v. Mukasey, 

, 73 n.1 (1st Cir. 2008) ("Typically, we have found the absence

of specific findings problematic in cases in which such a void

hampers our ability meaningfully to review the issues raised on

judicial review.").    This case is thus distinguishable from the

cases the government relied on in its brief, where the petitioners

did not receive their notices, which were sent to their last-known

addresses, because they failed to update their addresses.   Shia v.

Holder, 

, 20-21 (1st Cir. 2009) (per curiam); Shah v.

Mukasey, 

, 28 (1st Cir. 2008).    As we have discussed,

the IJ and BIA made no such finding in the instant case.


     4 Indeed, the BIA could not have -- it generally is not
permitted to make factual findings on appellate review.       In Re
Adamiak, 23 I. & N. Dec. 878, 880 (B.I.A. 2006) (citing 8 C.F.R.
§ 1003.1(d)(3)(iv)).
     Relatedly, we already mentioned that Renaut's primary briefed
argument concerning the BIA was that the BIA engaged in
impermissible factfinding to conclude that he, as a factual matter,
evaded delivery of the notice. But as far as we can tell, Renaut
did not first raise the claim of impermissible factfinding to the
BIA in a motion to reconsider, and so we do not have jurisdiction
to consider that claim. See Meng Hua Wan v. Holder, 

,
57 (1st Cir. 2015) (holding that "we lack jurisdiction to hear and
determine the petitioner's claim that the BIA engaged in
impermissible factfinding" because that claim was "directed to the
BIA's actions rather than to anything that happened before the
IJ," and so first needed to be exhausted with the BIA). However,
because we read the BIA's decision as adopting and affirming the
IJ's material errors of law, as opposed to "giv[ing] rise to a new
issue," 

not consider Meng Hua Wan a barrier to reviewing
Renaut's appeal.

                               - 13 -
             We recognize that both Renaut and the government might

interpret the IJ and BIA decisions differently from the way we do.

Recall that Renaut argued in his opening brief that the IJ applied

the standard for a removal order (which focuses on whether a

hearing notice was properly sent), as opposed to the standard of

a rescission order (which rides on whether the hearing notice was

received).    Thus, Renaut claimed, the IJ never decided one way or

another whether Renaut evaded his hearing notice.         Renaut then

urged that the BIA failed to recognize the IJ's error, and instead

engaged in its own factfinding to conclude that Renaut evaded his

hearing notice.    Renaut changed course at oral argument, however,

where his counsel additionally argued that the BIA erred in

applying a blanket rule that anyone who does not provide an updated

residential address has evaded notice.

             In the government's brief, it acknowledged that Renaut

was penalized for failing to update his residential address, but

argued that such a rule was proper under the language of the

statute.     At argument, though, the government also threw us a

curveball, claiming there that the BIA's decision did not impose

a categorical ban on motions to reopen when aliens provide only a

valid   mailing    address.    In   fact,   the   government   actually

acknowledged that some aliens do not have a stable home address,

so providing a friend's address or a post office box would be


                                - 14 -
appropriate in those situations.             The problem with the instant

case, the government argued, was that Renaut gave no explanation

as to why he wanted his mail to go to Corregidor Road instead of

his residential address, even after his friend moved.                And that

failure to explain amounted to evasion of his hearing notice, as

a matter of fact, according to the government.

             As our discussion shows, we read the IJ and BIA decisions

as concluding that as a legal matter, Renaut "evaded delivery of

a properly sent" hearing notice simply because he failed to update

his physical address, and that because of his evasion, he was not

entitled to reopening.           We believe this is the most sensible

reading of the two decisions in concert, given that neither made

factual findings that would allow for the conclusion that Renaut

evaded his notice as a matter of fact.           See Kurzon v. U.S. Postal

Serv., 

, 792 (1st Cir. 1976) ("'[W]e must look to (the

agency's) opinion, not to the arguments of its counsel, for the

underpinnings of its order.'" (quoting FTC v. Sperry & Hutchinson

Co.,   

,   246    (1972))).      To   the   extent   we   have

misconstrued its intended holding, the BIA has the chance to

clarify the basis of its decision on remand.

             Finally, the government also argues that even if Renaut

did not have to provide his physical address, there was another

reason to deny his motion -- the fact that he sat on the bench for


                                    - 15 -
the near-decade that followed the entering of his removal, never

bothering to follow up with the Immigration Court on when his

hearing might be scheduled.         Sure, in the portion of the decision

addressing whether exceptional circumstances warranted reopening,

the IJ did make factual findings that Renaut "failed to make

diligent efforts to follow up regarding his removal proceedings,"

and that the record lacked evidence that Renaut took any steps to

"follow up on his case during the more than ten years after his

Motion to Change Venue to Boston was granted on March 14, 2003."

But the BIA did not address that issue, and so we won't either.

See Romilus v. Ashcroft, 

, 5 (1st Cir. 2004) ("[W]here

the BIA's decision adopts portions of the IJ's opinion, we review

those portions of the IJ's opinion that the BIA has adopted.").

Specifically,    while   the   BIA    "ultimately   conclude[d]   that    the

Immigration     Judge    properly     declined   to   reopen"     based    on

exceptional circumstances, the BIA did not directly address the

diligence issue, or state whether it agreed with or intended to

adopt the IJ's factual findings in that regard.           Particularly in

light of our reservations as to whether the IJ considered all the

evidence Renaut offered up to show that he complied with the

address requirements, and the lack of factual findings as to

whether or not he evaded his hearing notice, we still deem the

appropriate course of action here a remand, which will at least


                                     - 16 -
allow the BIA to clarify.    See 

(noting

that   while   "we   will   accept   less   than   ideal   clarity   in

administrative findings," "we ought not to have to speculate as to

the basis for an administrative agency's conclusion" (citations

and quotations omitted)).

           For these reasons, we vacate the order of the BIA and

remand the case for further proceedings consistent with this

opinion.




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