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Interim Decision #4240
Matter of Ifeanyi Emmanuel DIJI, Respondent
Decided September 3, 2026
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) When mailing a notice to appear by regular mail, the Department of Homeland Security
can rely on the most recent address the alien has provided.
(2) For purposes of an in absentia removal proceeding, written notice of the proceedings
is sufficient if mailed to the most recent address the alien provided, which includes an
address the alien provided before the issuance of the notice to appear. Matter of G-Y-R-,
23 I&N Dec. 181 (BIA 2001) (en banc), overruled.
FOR THE RESPONDENT: Joy J. Al-Jazrawi, Esquire, Houston, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter Yoon, Counsel
BEFORE: Board En Banc: MALPHRUS, Chief Appellate Immigration Judge; GORMAN
and RADICS, Deputy Chief Appellate Immigration Judges; CREPPY, HUNSUCKER,
GOODWIN, MONTANTE, MAHTABFAR, GALLOW, VOLKERT, CHABAN, and
HANSELL, Appellate Immigration Judges. Dissenting Opinions: MULLANE, Appellate
Immigration Judge; GEMOETS, Appellate Immigration Judge.
GORMAN, Deputy Chief Appellate Immigration Judge:
The respondent appeals the Immigration Judge’s June 18, 2025, decision
denying the respondent’s motion to reopen and rescind an April 7, 2023, in
absentia order of removal. The respondent has also filed a motion for
emergency stay pending appeal. The Department of Homeland Security
(“DHS”) opposes the appeal.
The Board requested and received
supplemental briefs from both parties. We will dismiss the appeal and deny
the motion as moot.
I. FACTUAL AND PROCEDURAL HISTORY
On April 29, 2019, DHS served the respondent a notice to appear
(“NTA”) by regular mail alleging that he is removable as a visa-overstay
pursuant to section 237(a)(1)(B) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1227(a)(1)(B) (2018). Approximately six notice of
hearing forms were later mailed to the respondent, with only one of those
notices being returned as undeliverable. The final notice of hearing, dated
November 3, 2022, informed the respondent of a master calendar hearing on
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Interim Decision #4240
April 6, 2023. That notice was not returned as undeliverable. The respondent
failed to appear for the hearing and was ordered removed in absentia.
On June 10, 2025, the respondent filed a motion to reopen and rescind his
in absentia order of removal. However, he did not attach any evidence to his
motion; instead, he only submitted arguments from counsel. See Matter of
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980) (noting that
“[c]ounsel’s arguments are not evidence”). Specifically, counsel argued that
the respondent’s NTA was mailed approximately 1 year after the respondent
last sought benefits from United States Citizenship and Immigration Services
(“USCIS”). The respondent claims that he moved after USCIS denied his
benefit requests. According to his motion, no further communication was
necessary once he was advised to depart the country due to the expiration of
his status.
The Immigration Judge denied the respondent’s motion to reopen,
concluding that the respondent had not overcome the presumption of
effective service. The Immigration Judge determined that the respondent’s
motion was untimely and there was no basis for the assertion that the
respondent lacked notice.
See INA § 240(b)(5)(C)(ii), 8 U.S.C.
§ 1229a(b)(5)(C)(ii) (2024); 8 C.F.R. § 1003.23(b)(4)(ii) (2026). The
Immigration Judge denied the respondent’s alternative request to reopen
proceedings sua sponte.
On appeal, the respondent contends the Immigration Judge erred in
denying the motion to reopen because he did not receive either his notice to
appear or his notice of hearing. See INA § 239(a)(1)-(2), 8 U.S.C.
§ 1229(a)(1)-(2) (2024). The respondent claims that DHS mailed his NTA
to an address he had previously provided to USCIS. The respondent explains
that, in January 2019, he moved to a new address and that he first become
aware of his removal proceedings when he appeared for his adjustment of
status interview with USCIS on June 3, 2025. 1
The respondent’s arguments in support of reopening directly implicate
our holding in Matter of G-Y-R-, 23 I&N Dec. 181, 183 (BIA 2001) (en
banc), where a divided Board held that the INA precludes “the entry of an in
absentia order of removal when the alien has not received the Notice to
The respondent has submitted additional evidence on appeal concerning his marriage to
a United States citizen and his desire to adjust status. Since we decline to disturb the
Immigration Judge’s decision, the respondent is ineligible for adjustment of status due to
his in absentia order of removal. See INA § 240(b)(7), 8 U.S.C. § 1229a(b)(7) (2024).
Accordingly, we need not discuss this proffered evidence further.
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Appear and thus does not know of the particular address obligations
associated with removal proceedings.” However, over the years, this practice
has vindicated the position of the dissent, which described the majority’s
holding as being “at odds with the plain language of the statute and
incompatible with any effort to create an effective immigration court
system.” Id. at 194 (Jones, dissenting). As Matter of G-Y-R- is plainly
inconsistent with the language, structure, and purpose of the INA, we now
overrule it.
II. DISCUSSION
A. Statutory Language
As with all statutory interpretation issues, we start with the plain language
of the statute itself. Matter of Forjoe, 29 I&N Dec. 463, 467 (BIA 2026)
(citing Jimenez v. Quarterman, 555 U.S. 113, 118 (2009)). Section 239 of
the INA, 8 U.S.C. § 1229, governs the initiation of removal proceedings.
Subsection (a)(1) of that provision, 8 U.S.C. § 1229(a)(1), provides that
“written notice” in the form of a notice to appear “shall be given in person to
the alien (or, if personal service is not practicable, through service by mail to
the alien or to the alien’s counsel of record, if any).” An NTA must specify,
among other matters:
(i) The requirement that the alien must immediately provide (or have provided)
the Attorney General with a written record of an address and telephone number (if
any) at which the alien may be contacted respecting proceedings under section 240.
(ii) The requirement that the alien must provide the Attorney General immediately
with a written record of any change of the alien’s address or telephone number.
(iii) The consequences under section 240(b)(5) of failure to provide address and
telephone information pursuant to this subparagraph.
INA § 239(a)(1)(F), 8 U.S.C. § 1229(a)(1)(F). 2 Section 239(c) of the INA,
8 U.S.C. § 1229(c) (2024), provides that “[s]ervice by mail under this section
shall be sufficient if there is proof of attempted delivery to the last address
provided by the alien in accordance with subsection (a)(1)(F).”
Congress has also set forth the established procedures for in absentia
removal proceedings. Section § 240(b)(5)(A) of the INA, 8 U.S.C.
§ 1229a(b)(5)(A) (2024), provides:
Although the statute still references the Attorney General, the functions of the former
Immigration and Naturalization Service were transferred to DHS on March 1, 2003,
pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, § 402, 116 Stat.
2135, 2177-78 (Nov. 25, 2002).
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Any alien who, after written notice required under paragraph (1) or (2) of section
239(a) has been provided to the alien or the alien’s counsel of record, does not attend
a proceeding under this section, shall be ordered removed in absentia if the Service
establishes by clear, unequivocal, and convincing evidence that the written notice
was so provided and that the alien is removable (as defined in subsection (e)(2)).
The written notice by the Attorney General shall be considered sufficient for
purposes of this subparagraph if provided at the most recent address provided under
section 239(a)(1)(F).
The relevant regulation further provides that an alien shall be ordered
removed in absentia if, inter alia, it is established that he or she received
“written notice of the time and place of proceedings and written notice of the
consequences of failure to appear.” 8 C.F.R. § 1003.26(c)(2) (2026); see also
Matter of Laurent Castro, 29 I&N Dec. 419, 420–421 (BIA 2026) (holding
that, where an alien did not appear at a hearing after having been properly
served with notice of the missed hearing, and DHS provided evidence of the
alien’s removability, the Immigration Judge erred in continuing removal
proceedings rather than entering an in absentia removal order).
The INA provides two methods by which an in absentia removal order
may be rescinded: (1) if the alien files a motion to reopen within 180 days
of the order, demonstrating that his or her failure to appear was because of
exceptional circumstances; or (2) if the alien files, at any time, a motion to
reopen demonstrating that he or she did not receive notice or that he or she
was in Federal or State custody and failed to appear through no fault of his
or her own. INA § 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C) (2018); 8 C.F.R.
§ 1003.23(b)(4)(ii). “Because the respondent’s motion to reopen was
untimely and he was not in custody, he must show that he ‘did not receive
notice’ of the hearing.” Matter of Nivelo Cardenas, 28 I&N Dec. 68, 70
(BIA 2020) (quoting INA § 240(b)(5)(C)(ii), 8 U.S.C. § 1229a(b)(5)(C)(ii)).
B. Matter of G-Y-RIn Matter of G-Y-R-, the alien entered the United States without
inspection and later applied for asylum. 23 I&N Dec. at 182. She then
submitted an Alien Address Report Card, Form I-104, updating her address
with the Immigration and Naturalization Service (“INS”). Id. After failing
to appear for her asylum interview, the INS mailed her NTA via certified
mail. As argued by the INS, the respondent did not receive her NTA because
it was returned by the Postal Service as undeliverable.
The respondent failed to appear for her hearing in Immigration Court.
The INS declined to agree to administrative closure of the proceedings and
moved to proceed with a hearing in absentia. The Immigration Judge
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terminated proceedings without prejudice after expressing concerns that the
alien was not aware of her removal proceedings.
On appeal, a divided Board sitting en banc held that sections 239(a) and
(c) and 240(b)(5) of the INA, 8 U.S.C. §§ 1229(a), (c), 1229a(b)(5),
collectively “preclude the entry of an in absentia order of removal when the
alien has not received the Notice to Appear and thus does not know of the
particular address obligations associated with removal proceedings.” Id. at
183.
In its analysis, the majority attempted to define what it characterized as a
“section 239(a)(1)(F) address.” See INA § 239(c), 8 U.S.C. § 1229(c) (2024)
(stating that “[s]ervice by mail under this section shall be sufficient if there
is proof of attempted delivery to the last address provided by the alien in
accordance with subsection (a)(1)(F)”); INA § 240(b)(5)(A), 8 U.S.C.
§ 1229a(b)(5)(A) (“The written notice by the Attorney General shall be
considered sufficient for [the in absentia] purposes of this subparagraph if
provided at the most recent address provided under section 239(a)(1)(F).”).
The majority stated that an “alien will ‘have provided’ an address at which
he or she can be ‘contacted respecting proceedings’ if any earlier provided
address was effective for receiving the Notice to Appear and the alien has
not provided any written record of an address change.” Matter of G-Y-R-,
23 I&N Dec. at 186 (citing INA § 239(a)(1)(F)(i), 8 U.S.C.
§ 1229(a)(1)(F)(i)).
However, the majority then went on to distinguish “constructive notice in
the form of undelivered written notice.” Id.
The statute allows a hearing to be conducted in absentia, but only when the alien
was sent written notice “at the most recent address provided under section
239(a)(1)(F).” Section 240(b)(5)(A) of the Act. The literal language of this
provision requires that the address be one provided both by the alien and “under
section 239(a)(1)(F).” Id. As we understand the in absentia provisions in section
240(b)(5)(A), when read in light of section 239(a)(1)(F) itself, the alien cannot
provide a “section 239(a)(1)(F)” address (or “have provided” it and therefore not
need to change it) unless the alien has been advised to do so.
In this regard, it is section 239(a)(1)(F) itself that requires the Notice to Appear to
inform the alien of the particular address obligations associated with removal
proceedings. Section 239(a)(1)(F)(i) of the Act. Section 239(a)(1)(F) mandates that
the Notice to Appear also inform the alien of the in absentia consequences of failing
to comply with those address requirements. Section 239(a)(1)(F)(iii) of the Act.
Together, these provisions lead to the conclusion that an address does not become a
section 239(a)(1)(F) address unless the alien receives the warnings and advisals
contained in the Notice to Appear. This conclusion is reinforced by the parallel
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language of section 239(c), which permits service by mail when the address used is
“provided by the alien in accordance with subsection (a)(1)(F).” Section 239(c) of
the Act. Simply put, an alien cannot be expected to provide an address “under” or
“in accordance with” section 239(a)(1)(F) until the alien has been informed of the
particular address obligations contained in section 239(a)(1)(F) itself.
Accordingly, we find that an address can be a section 239(a)(1)(F) address only if
the alien has first been informed of the particular statutory address obligations
associated with removal proceedings and of the consequences of failing to provide a
current address. Because that information is first communicated in the Notice to
Appear, the alien must receive the Notice to Appear before he or she can “provide”
an address in accordance with section 239(a)(1)(F) of the Act. In cases where the
Service uses the mail to deliver the Notice to Appear to the alien, the “last address”
or the “most recent address” provided by the alien “in accordance with subsection
(a)(1)(F)” will necessarily be an address arising from the alien’s receipt of the
advisals contained in the Notice to Appear.
Id. at 187–88 (footnote omitted).
The majority further stated:
If . . . we know that the alien did not receive the Notice to Appear and the notice
of hearing it contains, then the alien cannot be on notice of either removal
proceedings or the address obligations particular to removal proceedings. In that
instance, the address used by the Service cannot qualify as a section 239(a)(1)(F)
address, and the entry of an in absentia order is precluded.
Id. at 190. The majority also dismissed the INA’s registration requirements
for nearly all aliens, including the requirement that aliens promptly update
their addresses, reasoning that an in absentia order of removal is not one of
the listed penalties for failure to comply with these requirements. Id. at 190;
see INA §§ 262, 265, 8 U.S.C. §§ 1302, 1305 (2024).
Two Board members dissented. Expressly noting Congress’ use of “have
provided” in section 239(a)(1)(F), they observed the majority’s paradoxical
reasoning, where an alien cannot “‘have provided’ an address to the
Immigration Court before he or she has been told to provide one.” Id. at 194
(Jones, dissenting). The dissent further emphasized that “we must ‘give
effect, if possible, to every clause and word of a statute.’” Id. at 193 (Jones,
dissenting) (quoting United States v. Menasche, 348 U.S. 528, 538–39
(1955)).
Noting that the majority’s holding would effectively eliminate the ability
to provide notice by regular mail, the dissent found “that the statute
permits—even intends—that removal proceedings be initiated through the
mailing of a Notice to Appear by regular mail.” Id. at 194 (Jones, dissenting).
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“Once the Service mails the Notice to Appear to the ‘most recent address’
provided by the alien, under section 239(a)(1)(F) of the Act, an Immigration
Judge can order an alien removed in absentia.” Id. (quoting INA § 240(b)(5),
8 U.S.C. § 1229a(b)(5)). “If the last address provided by the alien is
inadequate, it is incumbent on the alien to provide a better one or forfeit the
right to notice.” Id.
C. The Flawed Reasoning of Matter of G-Y-RThe majority’s reasoning in Matter of G-Y-R- is inconsistent with the
INA’s clear text, structure, and operation. See Tuan Anh Nguyen v. INS, 533
U.S. 53, 67–68 (2001) (“We ascertain the purpose of a statute by drawing
logical conclusions from its text, structure, and operation.”). Applying the
majority’s holding across the INA leads to an absurd result that is patently
contrary to Congress’ intent.
While the majority attempted to carefully construct what they styled as
the “section 239(a)(1)(F) address,” its application thwarts Congress’ clear
intent that NTAs may be served by mail. The majority focused on the INA’s
in absentia provisions containing the terms “address provided under section
239(a)(1)(F)” and “address required under section 239(a)(1)(F).” INA
§ 240(b)(5)(A), (B), 8 U.S.C. § 1229a(b)(5)(A), (B). They mentioned a
functionally identical phrase in the INA’s provision discussing service by
mail: “in accordance with subsection 239(a)(1)(F).” INA § 239(c), 8 U.S.C.
§ 1229(c); see also Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 530
(2013) (“The word ‘under’ can mean ‘[i]n accordance with.’”) (quoting
18 Oxford English Dictionary 950 (2d ed.1989)).
It is well-established that “identical words used in different parts of the
same act are intended to have the same meaning.” Sullivan v. Stroop, 496
U.S. 478, 484 (1990) (quoting Sorenson v. Sec’y of Treasury, 475 U.S. 851,
860 (1986)). Applying the same meaning has particular force here, as the
provisions are related. One provision addresses how an NTA in removal
proceedings can be served on an alien. The other addresses a consequence
of an alien failing to appear at those removal proceedings.
According to the majority in Matter of G-Y-R-, “an address can be a
section 239(a)(1)(F) address only if the alien has first been informed of the
particular statutory address obligations associated with removal proceedings
and of the consequences of failing to provide a current address.” 23 I&N
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Dec. at 187. Yet this conclusion is fundamentally inconsistent with the
INA’s express provision that an NTA may be served by regular mail. 3
The majority’s holding creates what amounts to an inconceivable
paradox. If an address does not become a section 239(a)(1)(F) address unless
the alien receives the warnings and advisals contained in the NTA, by this
logic, DHS could never serve an NTA by mail under section 239(c) of the
INA, 8 U.S.C. § 1229(c), which references section 239(a)(1)(F) addresses.
An NTA is a “case-initiating” document, Niz-Chavez v. Garland, 593 U.S.
155, 164 (2021), and if we took Matter of G-Y-R-’s reasoning to its logical
conclusion, DHS could never serve its case-initiating document by mail
because the respondent would not have been informed of the 239(a)(1)(F)
requirements that must be included in the notice to appear itself. Such a
patently absurd result would be contrary to the clear Congressional mandate
in section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), that an NTA can be
served by regular mail (as opposed to the earlier procedures of certified mail
or reasonable notice).
Reinforcing this conclusion is the INA’s statutory language that an alien
can “have provided” an address in section 239(a)(1)(F)(i) of the INA,
8 U.S.C. § 1229(a)(1)(F)(i). This present perfect tense links a past event to
present circumstances. See Barrett v. United States, 423 U.S. 212, 216
(1976) (stating that the present perfect tense denotes “an act that has been
completed”). Under the Dictionary Act, 1 U.S.C. § 1, “words used in the
present tense include the future as well as the present.” “By implication,
then, the Dictionary Act instructs that the present tense generally does not
Before 1992, the INA stated that “the alien shall be given notice, reasonable under all
the circumstances, of the nature of the charges against him [or her] and of the time and
place at which the proceedings will be held.” Former section 242(b)(1) of the INA,
8 U.S.C. § 1252(b)(1) (1988). Congress later amended the INA (taking effect in 1992) by
adding former section 242B of the INA, 8 U.S.C. § 1252b (Supp. II 1990), which stated
that “written notice shall be given in person to the alien (or, if personal service is not
practicable, such notice shall be given by certified mail to the alien or to the alien’s counsel
of record, if any).” The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C, § 304, 110 Stat. 3009-546, 3009-587,
which is presently controlling, states that “written notice . . . shall be given in person to the
alien (or, if personal service is not practicable, through service by mail to the alien or to
the alien’s counsel of record, if any).” INA § 239(a)(1), 8 U.S.C. § 1229(a)(1). Congress
further established that “[s]ervice by mail under this section shall be sufficient if there is
proof of attempted delivery to the last address provided by the alien in accordance with
subsection (a)(1)(F).” INA § 239(c), 8 U.S.C. § 1229(c); see also Matter of M-R-A-, 24
I&N Dec. 665, 667 n.1 (BIA 2008) (“Congress set forth the new procedures allowing notice
through service by regular mail when it enacted section 304(a)(3) of [IIRIRA].”).
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include the past.” Carr v. United States, 560 U.S. 438, 448 (2010). In this
context, the past event is the alien providing an address before the NTA is
issued. 4
Additionally, the majority in Matter of G-Y-R- erred in stating “that the
legislative history behind sections 239 and 240 of the Act does not provide
meaningful guidance here because the explanatory material simply
paraphrases the language that appears in the statute today.” 23 I&N Dec. at
194 n.3. In describing service under section 239 of the INA, 8 U.S.C. § 1229,
the House Conference Report states “[s]ervice is sufficient if there is proof
of mailing to the last address provided by the alien.” H.R. Rep. No. 104-828,
at 211 (1996) (Conf. Rep.). Regarding in absentia proceedings, the
Conference Report states that “an alien who fails to appear for a hearing may
be ordered removed if the Service establishes by clear, unequivocal, and
convincing evidence that notice under section 239 was provided and that the
alien is inadmissible or deportable.” Id. at 212. Contrary to the majority’s
reasoning, this legislative history plainly states that notice can be sent to the
last address provided by the alien and that in absentia proceedings can
commence upon proof that “notice under section 239” was provided. 5 Id.
The legislative history does not support the majority’s holding.
D. Overruling Matter of G-Y-RWe therefore hold that DHS may serve a notice to appear via regular mail
“to the last address provided by the alien.” INA § 239(c), 8 U.S.C. § 1229(c).
Such an address is “in accordance with subsection (a)(1)(F)” because the
alien will “have provided” the address previously. INA § 239(a)(1)(F)(i),
(c), 8 U.S.C. § 1229(a)(1)(F)(i), (c). This holding also applies to section
240(b)(5)(A) of the INA, 8 U.S.C. § 1229a(b)(5)(A), which uses similar
language in the absentia context. Thus, for purposes of an in absentia
The dissent in Matter of G-Y-R- rightly asked how an alien can “have provided” an
address before being told to provide one. Matter of G-Y-R-, 23 I&N Dec. at 194 (Jones,
dissenting). “The only way the alien can provide an address to the Immigration Court prior
to proceedings is by providing an address to the Service, with the Service in turn providing
it to the Immigration Court via the Notice to Appear.” Id. This interpretation is more
consistent with the INA’s text.
4
The legislative history does state that “[t]here is no requirement to provide written
notice if the alien has failed to provide the address required under section 239(a)(1)(F).”
Id. However, the more relevant provisions are not so specific and cross-reference each
other. In other words, the legislative history indicates that service under section 239 is
sufficient upon proof of mailing to the last address provided by the alien, and in absentia
proceedings can commence upon a showing that notice under section 239 was provided.
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removal proceeding, written notice of the proceedings is sufficient if mailed
to the most recent address the alien provided, which includes an address the
alien provided before the issuance of the NTA. INA § 240(b)(5)(A), 8 U.S.C.
§ 1229a(b)(5)(A). This interpretation results in a consistent, coherent result
that gives effect to each relevant INA provision. It also is consistent with
IIRIRA’s legislative history.
It is unremarkable that aliens “have provided” DHS with their addresses
because sections 262 and 265 of the INA, 8 U.S.C. §§ 1302, 1305, require
almost all aliens 14 years of age and older to register and update DHS with
their addresses. See Matter of G-Y-R-, 23 I&N Dec. at 190 (“Virtually every
alien in the United States is under an affirmative obligation to report address
changes to the Attorney General, regardless of immigration status or
circumstances.”); see also 8 C.F.R. § 265.1 (2026). The majority in Matter
of G-Y-R- dismissed this statutory requirement, stating that the entry of an in
absentia order of removal is not an express penalty for failing to comply with
section 265 of the INA, 8 U.S.C. § 1305. 23 I&N Dec. at 190.
While this may be true, it is not dispositive. An alien may or may not
have provided an address to DHS. But when an alien does provide an
address, and does not update it (as required by the INA), he or she runs the
risk of correspondence (including an NTA) being sent to a stale address.
There are several procedural and substantive gates to pass through from when
an alien fails to update an address to when an Immigration Judge later issues
an in absentia order of removal. These include (but are not limited to) DHS
making a determination that the alien is inadmissible or deportable, DHS
then electing in its sole prosecutorial discretion to institute removal
proceedings, DHS mailing the NTA to the last address provided by the alien,
the alien not appearing in Immigration Court, and DHS sustaining its burden
in the in absentia context. An alien in this context can avoid an in absentia
removal order by complying with the INA and promptly updating DHS with
any address changes. Put more plainly, our decision today does not make an
in absentia removal order the penalty for an alien’s failure to update his or
her address.
Moreover, sections 262 and 265 of the INA, 8 U.S.C. §§ 1302, 1305,
clearly reflect Congress’ longstanding concern that aliens must register with
the appropriate authorities and update those authorities about any address
changes. The initiation of removal proceedings and in absentia removal
proceedings must be viewed within this broader statutory context. It is
therefore expected that an alien will “have provided” an address. INA
§ 239(a)(1)(F)(i), 8 U.S.C. § 1229(a)(1)(F)(i). Consistent with the INA, DHS
may rely on that address in initiating removal proceedings, and an
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Immigration Judge may also do so when deciding whether to proceed in
absentia. See Matter of G-Y-R-, 23 I&N Dec. at 194 (Jones, dissenting)
(noting the alien’s burden to provide a current address or “forfeit the right to
notice”). Thus, our textual analysis is underpinned by the larger structure
and purpose of the INA.
Our consistent result herein stands in contrast to the process of Matter of
G-Y-R-, which is riddled with uncertainty. Under the majority’s reasoning,
DHS can mail an NTA to an address that is not yet a so-called section
239(a)(1)(F) address, as “an address can be a section 239(a)(1)(F) address
only if the alien has first been informed of the particular statutory address
obligations associated with removal proceedings and of the consequences of
failing to provide a current address.” Matter of G-Y-R-, 23 I&N Dec. at 187.
DHS thus might not know if the address it used pursuant to section 239(c) of
the INA, 8 U.S.C. § 1239(c), is actually a so-called section 239(a)(1)(F)
address until the alien appears in Immigration Court. However, an alien
might be charged with constructive notice if “the Notice to Appear reaches
the correct address but does not reach the alien through some failure in the
internal workings of the household.” Matter of G-Y-R-, 23 I&N Dec. at 189.
This leads to an absurd result where neither party to litigation is in fact aware
that an ordinary address has been transformed by law into a “section
239(a)(1)(F) address.”
The criticisms that the dissenting opinion makes in this case are largely
extraneous and ultimately unpersuasive. We acknowledge that the majority
in Matter of G-Y-R- purported to conduct a textual analysis, but that analysis
was ultimately flawed. Fundamentally, we have two statutory provisions
containing functionally equivalent language. Compare INA § 239(c),
8 U.S.C. § 1229(c) (“Service by mail under this section shall be sufficient if
there is proof of attempted delivery to the last address provided by the alien
in accordance with subsection (a)(1)(F).”) (emphasis added) with INA
§ 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A) (“The written notice by the
Attorney General shall be considered sufficient for purposes of this
subparagraph if provided at the most recent address provided under section
239(a)(1)(F).”) (emphasis added). Section 239(a)(1)(F) of the INA, 8 U.S.C.
§ 1229(a)(1)(F), in turn expressly contemplates that aliens “have provided”
their addresses.
Our holding is that, when mailing a notice to appear by regular mail, DHS
can rely on the most recent address the alien has provided. An Immigration
Judge similarly can order aliens removed in absentia upon a showing, inter
alia, that written notice was provided at the most recent address that aliens
“have provided.” This is a more logical textual analysis than the thenpage
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majority provided in Matter of G-Y-R- precisely because it hews to the INA’s
explicit language and assigns a consistent interpretation to functionally
equivalent statutory language. Contrary to the dissent’s misguided view, the
statutory provisions at issue are not “general” or “specific.” They are
functionally equivalent and must be interpreted as such. 6
We do not disregard the dissent’s stated policy concerns, such as DHS’
possible cost-benefit analyses and the number of in absentia removal orders
issued over time. However, the most these concerns show is the
unremarkable reality that policy concerns may pull in different directions.
Hence, our analysis focuses instead on the text and structure of the INA, and
we give the same meaning to two functionally equivalent statutory phrases.
Ultimately, such “policy concerns cannot trump the best interpretation of the
statutory text.” Patel v. Garland, 596 U.S. 328, 346 (2022).
Thus, we overrule Matter of G-Y-R-. 7 We have previously discussed our
considerations for reevaluating prior precedent, including our governing
regulations. See Matter of Forjoe, 29 I&N Dec. at 466 (citing 8 C.F.R.
§ 1003.1(g)(3)(ii)–(v) (2026)). “The Board has a duty to ensure that its
precedent follows current law.” Id. “Stare decisis is not an ‘inexorable
command.’” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 407 (2024)
(quoting Payne v. Tennessee, 501 U. S. 808, 828 (1991)). Matter of G-Y-Rhas proved to be “fundamentally misguided” and “unworkable” for the
reasons foreseen by the two dissenting Board members and explained further
in this decision. Id.
The dissent points out that DHS has not explicitly asked us to overrule Matter of G-Y-R-.
We exercise our independent judgment. 8 C.F.R. § 1003.1(d)(1)(ii) (2026). We must also
“provide clear and uniform guidance to DHS, the immigration judges, and the general
public on the proper interpretation and administration of the Act and its implementing
regulations.” 8 C.F.R. § 1003.1(d)(1). We are doing so here.
6
We also overrule citation to Matter of Anyelo, 25 I&N Dec. 337 (BIA 2010), which
applied Matter of G-Y-R- to cases arising in the United States Court of Appeals for the
Eleventh Circuit. In that case, the Board declined to follow Dominguez v. U.S. Att’y Gen.,
284 F.3d 1258, 1260 (11th Cir. 2002) (per curiam), which was then-existing adverse
precedent to Matter of G-Y-R-, which the Board did not follow primarily because
Dominguez did not allude to Matter of G-Y-R- or “consider[ its] holding.” See Matter of
Anyelo, 25 I&N Dec. at 338–339. The Board, however, did not have the authority to
decline to follow Dominguez in the Eleventh Circuit as it was controlling precedent at that
time. The Board must follow and apply the law of the circuit in all cases arising in that
jurisdiction. See Matter of U. Singh, 25 I&N Dec. 670, 672 (BIA 2012).
7
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We also acknowledge that “[c]onsiderations of stare decisis have special
force in the area of statutory interpretation, for here, unlike in the context of
constitutional interpretation, the legislative power is implicated, and
Congress remains free to alter what we have done.” Hohn v. United States,
524 U.S. 236, 251 (1998) (quoting Patterson v. McLean Credit Union, 491
U.S. 164, 172–173, (1989)). However, this principle is not and cannot be an
absolute bar to overruling prior decisions interpreting statutes. As noted, we
are controlled by regulations established by the Attorney General, and we
have a duty to uniformly and correctly interpret the INA. Matter of G-Y-Rdid neither.
In so deciding, we assume that there was some reliance on Matter of
G-Y-R-. See Loper Bright Enters., 603 U.S. at 410 (considering reliance on
the decision as a factor in a stare decisis analysis). Even if parties have relied
on that case, such reliance does not diminish DHS’ authority to institute
removal proceedings and serve an NTA by regular mail. That reliance also
does change an alien’s duty to provide prompt address updates. Our decision
gives effect to those provisions and applies a consistent definition across the
INA. Cf. Matter of G-Y-R-, 23 I&N Dec. at 194 (“Narrowly applying the in
absentia provisions to this class of cases undermines the very efficacy of
those provisions.”) (Jones, dissenting).
E. The Respondent’s Claim
Under this framework, the respondent has not established that he “did not
receive[] notice” within the meaning of the INA. INA § 240(b)(5)(C)(ii),
8 U.S.C. § 1229a(b)(5)(C)(ii). As an initial matter, his motion contains only
statements by counsel, which are not evidence. See 8 C.F.R. § 1003.23(b)(3)
(2026) (stating a motion to reopen “shall be supported by affidavits and other
evidentiary material”) (emphasis added).
The Immigration Judge did not clearly err in finding that the NTA was
properly served on the respondent by mail, as evidenced in the certificate of
service dated April 29, 2019. See INA § 239(c), 8 U.S.C. § 1229(c). The
NTA and relevant notice of hearing were mailed to the respondent’s last
known address, and there is no indication that the final notice of hearing was
not received. The respondent acknowledged in his motion to reopen that
after his request for a change of status was denied in December 2018, he did
not inform USCIS of his change of address “because his case had been denied
and no more communication was necessary and he was told to leave the
country in 180 days.” However, the respondent did not leave the United
States, and he failed to inform USCIS of his purported change of address in
January 2019.
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The Immigration Judge also correctly determined that the respondent did
not overcome the presumption of receipt of the notice of hearing. See Matter
of M-R-A-, 24 I&N Dec. at 674–75 (setting forth the factors to be considered
in determining whether an alien has presented sufficient evidence to
overcome the weaker presumption of delivery when a notice has been sent
by regular mail); see also Navarrete-Lopez v. Barr, 919 F.3d 951, 954 (5th
Cir. 2019) (finding the alien failed to overcome weaker presumption of
effective service of notice of removal hearing via regular mail). “[A]n alien’s
statement in an affidavit that is without evidentiary flaw may be sufficient to
rebut the presumption of effective service.” Hernandez v. Lynch, 825 F.3d
266, 269 (5th Cir. 2016). However, when the respondent filed his motion to
reopen, he did not submit his own affidavit, nor affidavits from family
members or other individuals who are knowledgeable about the facts relevant
to whether notice was received. See Matter of M-R-A-, 24 I&N Dec. at 674
(listing affidavits from the alien and others as factors to consider).
Furthermore, when a notice of hearing reaches the correct address but
does not reach the respondent through some failure in the internal workings
of the household, the respondent can be charged with receiving proper notice.
Ojeda-Calderon v. Holder, 726 F.3d 669, 673 (5th Cir. 2013). The last notice
of hearing dated November 3, 2022, rescheduled the respondent’s hearing to
April 6, 2023. The notice of hearing was not returned as undeliverable, and
the respondent’s lack of due diligence weighs in favor of the presumption of
receipt by the respondent. Navarrete-Lopez, 919 F.3d at 955. The
respondent has remained in the United States since July 5, 2018, without
permission from DHS, which supports the Immigration Judge’s finding that
the respondent did not have an incentive to appear for his hearing. Therefore,
based on all the circumstances, we agree with the Immigration Judge that the
respondent failed to overcome the presumption of delivery of the NTA and
the notice of hearing.
Finally, we find no basis for exercising our sua sponte authority to reopen
proceedings in this case. See 8 C.F.R. § 1003.2(a) (2026); see also Matter of
G-D-, 22 I&N Dec. 1132, 1133–34 (BIA 1999) (expressing that sua sponte
reopening is not a general remedy for hardship created by enforcing
regulations); Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997) (stating that
the Board’s power to reopen cases sua sponte is limited to exceptional
circumstances and is not meant to cure filing defects or circumvent the
regulations).
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III. CONCLUSION
Based on the foregoing, we affirm the decision of the Immigration Judge
denying the respondent’s motion to reopen. Accordingly, the following
orders are entered.
ORDER: The appeal is dismissed.
FURTHER ORDER: The emergency motion to stay removal is
denied as moot.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $998 for each day the respondent is in violation. See section
274D of the INA, 8 U.S.C. § 1324d (2024); 8 C.F.R. § 280.53(b)(14) (2026).
Further, any respondent that has been denied admission to, removed from, or
has departed the United States while an order of exclusion, deportation, or
removal is outstanding and thereafter enters, attempts to enter, or is at any
time found in the United States shall be fined or imprisoned not more than
2 years, or both. See INA § 276(a), 8 U.S.C. § 1326(a) (2024).
DISSENTING OPINION: Hugh G. Mullane, Appellate Immigration Judge
The majority fails to provide persuasive reasons to overturn Matter of
G-Y-R-, 23 I&N Dec. 181 (BIA 2001), and so I dissent.
A little more background is helpful because Matter of G-Y-R- should not
be read in isolation. After Matter of G-Y-R-, the Board decided two other
cases: Matter of M-D-, 23 I&N Dec. 540 (BIA 2002), and Matter of M-R-A-,
24 I&N Dec. 665 (BIA 2008). In Matter of M-D-, we made clear that a
respondent cannot “defeat service by neglecting or refusing to collect his
mail.” 23 I&N Dec. at 547. In that case, we concluded that an in absentia
order was appropriate (and dismissed respondent’s appeal) even though the
“certified mail receipt sent to the respondent’s current address was not signed
and was returned to the Service” because respondent had not rebutted the
presumption of adequate notice. Id. In Matter of M-R-A-, we held that there
was a presumption of delivery when a notice to appear was served by regular
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mail (albeit a weaker presumption than service by certified mail). 24 I&N
Dec. at 673. These three cases—taken together—set forth the general rules
for in absentia orders.
It is also important to focus on how the Department of Homeland Security
(“DHS”) is expected to initiate a case against a respondent. The statutorily
preferred method of service is personal service—“written notice (in this
section referred to as a ‘notice to appear’) shall be given in person to the
alien.” Section 239(a)(1) of the Immigration and Nationality Act (“INA”),
8 U.S.C. § 1229(a)(1). When service is made this way, then all of the
majority’s objections and concerns disappear. It is only when “personal
service is not practicable” that DHS is permitted to effectuate service by mail.
Id. Not surprisingly, the majority does not want to focus on this point,
because it undermines any possible argument that the system is
“unworkable.” When personal service is rendered, a respondent has an
opportunity and obligation to provide an address. Moreover, because the
warning referenced in section 239(a)(1)(F) of the INA, 8 U.S.C.
§ 1229(a)(1)(F), is part of the notice to appear, a respondent who fails to
appear at a hearing because he did not update the immigration court about
his address will have no way to avoid an in absentia order (at least on the
lack of notice ground).
The majority’s real complaint is that when DHS invokes the permissible
(but less preferred) method of service—by mail—the language in sections
239(a)(1)(F) and 240(b)(5) of the INA, 8 U.S.C. §§ 1229(a)(1)(F),
1229a(b)(5), is potentially problematic because it is conceivable that DHS
will mail a notice to appear to a respondent using an outdated address
(because respondent did not update DHS regarding his address) and this
amounts to an “inconceivable paradox.” The problem—as the majority sees
it—is that “DHS could never serve its case-initiating document by mail
because the respondent would not have been informed of the 239(a)(1)(F)
requirements that must be included in the notice to appear itself.”
The majority has not identified a textual interpretative error in Matter of
G-Y-R-, despite its claim. At best, the majority has established the
unremarkable proposition that how DHS effectuates service of the notice to
appear may have consequences for whether or not an immigration judge may
enter an in absentia order of removal (or whether a case will need to be
reopened). There are several points to make in response to this claim.
First, the majority is wrong to assert that Matter of G-Y-R- is
“fundamentally inconsistent with the INA’s express provision that [a notice
to appear] may be served by regular mail.” This is not a textual reason for a
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different interpretation for sections 239(a)(1)(F) and 240(b)(5) of the INA,
8 U.S.C. §§ 1229(a)(1)(F), 1229a(b)(5); it is a results-based reason. The
majority’s analysis—by its own admission—only achieves this result by
taking “Matter of G-Y-R-‘s reasoning to its logical conclusion.” Nothing in
Matter of G-Y-R- prohibits DHS from serving a notice to appear by mail.
Matter of G-Y-R- expressly rebuts the majority’s shaky reading:
An alien can, in certain circumstances, be properly charged with receiving notice,
even though he or she did not personally see the mailed document. If, for example,
the Notice to Appear reaches the correct address but does not reach the alien through
some failure in the internal workings of the household, the alien can be charged with
receiving proper notice, and proper service will have been effected.
23 I&N Dec. at 189. Moreover, as discussed above, Matter of M-D- and
Matter of M-R-A- also foreclose the majority’s misreading of our precedent.
Matter of M-D- does so because it prohibits a respondent from defeating
service through neglect or refusal to collect mail. 23 I&N Dec. at 547.
Matter of M-R-A- does so because it provides for a presumption of delivery
for regular mail. 24 I&N Dec. at 672. The majority is simply wrong that
Matter of G-Y-R- prevents DHS from serving a notice to appear by mail.
Second, the majority overlooks an important cannon of statutory
construction—“the specific governs the general.” Morales v. Trans World
Airlines, Inc., 504 U.S. 374, 384 (1992). Here the general provision is section
239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), and its authorization to serve by
mail. The specific provisions are sections 239(a)(1)(F) and 240(b)(5) of the
INA, 8 U.S.C. §§ 1229(a)(1)(F), 1229a(b)(5), that set forth the specific rules
for in absentia orders. “The general/specific canon is perhaps most
frequently applied to statutes in which a general permission or prohibition is
contradicted by a specific prohibition or permission. To eliminate the
contradiction, the specific provision is construed as an exception to the
general one.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S.
639, 645 (2012). Thus, Matter of G-Y-R-’s construction is faithful to the
plain language of the statute for this reason. Moreover, its interpretative
focus on sections 239(a)(1)(F) and 240(b)(5) of the INA, 8 U.S.C.
§§ 1229(a)(1)(F), 1229a(b)(5), is proper in this situation because the question
presented relates to an in absentia order (not to a general question about
service by mail).
Third, the majority is wrong that Matter of G-Y-R- has created an
“inconceivable paradox.” If DHS wants to ensure that every notice to appear
will withstand a Matter of G-Y-R- type of challenge, then it can serve every
notice to appear in person. If DHS does not want to undertake this obligation
(remember, the statute says service by mail is permitted when personal
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service is not practicable), then it can use certified mail or some other highly
reliable delivery mechanism to effectuate service. While the statute permits
regular mail, it certainly does not preclude other forms of service. 1 This is a
cost-benefit analysis for DHS to make—not a paradox.
The majority’s policy argument on this point might be stronger if DHS
advocated for overturning Matter of G-Y-R-. Notably, the Board sought
supplemental briefing in this case and specifically asked the parties whether
we should modify or reverse Matter of G-Y-R-. DHS did not argue (or even
suggest) that Matter of G-Y-R- should be modified or reversed. Instead, DHS
argued that respondent cannot prevail under Matter of G-Y-R-, Matter of
M-D-, and Matter of M-R-A-. This undermines the majority’s assertion
Matter of G-Y-R- is “unworkable” or “fundamentally misguided” and further
weakens its case for overturning our precedent.
Fourth, the historical statistics regarding in absentia orders are a problem
for the majority. Given its claim that Matter of G-Y-R- is “unworkable,” one
would expect that in absentia orders would be a rare bird. That is not the
case. The Executive Office for Immigration Review has produced a chart
regarding in absentia statistics that shows increases for in absentia orders
from year to year (albeit with a dip during COVID-19). Executive Office for
Immigration Review, Adjudication Statistics: In Absentia Removal Orders
(July 24, 2026), https://www.justice.gov/eoir/media/1344881/dl?inline. The
chart shows that in absentia orders in 2016 totaled 34,330. In 2023, in
absentia orders totaled 160,504. In 2025, in absentia orders totaled 311,130.
The increase undermines any serious claim to unworkability.
Finally, overturning Matter of G-Y-R-, after nearly 25 years, is
complicated for another reason. Many courts of appeals have come to the
same (or a similar) legal conclusion regarding sections 239(a)(1)(F) and
240(b)(5) of the INA, 8 U.S.C. §§ 1229(a)(1)(F), 1229a(b)(5), as set forth in
Matter of G-Y-R-. See, e.g., Hamazaspyan v. Holder, 590 F.3d 744 (9th Cir.
2009); Kozak v. Gonzales, 502 F.3d 34 (1st Cir. 2007); Joshi v. Ashcroft, 389
F.3d 732 (7th Cir. 2004); Meyers v. U.S. Att’y Gen., No. 20-14721, 2024 WL
1928360 (11th Cir. May 2, 2024) (unpublished). 2 Overturning Matter of
The notice to appear in this case (like every other notice to appear) has a printed
certificate of service that includes “by certified mail, returned receipt requested” as a
service option.
1
The Court of Appeals for the Eleventh Circuit is particularly problematic for the
majority because we refrained from applying Matter of G-Y-R- in that Circuit until we
decided Matter of Anyelo, 25 I&N Dec. 337 (BIA 2010). While the majority also overturns
2
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G-Y-R- does not modify or overturn binding precedent from the courts of
appeals. The majority thus creates more uncertainty by overturning Matter
of G-Y-R-, as parties and the immigration courts try to figure out what law
applies.
Appellate Immigration Judge Marcos Gemoets dissents without opinion.
Matter of Anyelo (without any briefing), it cannot so easily modify the case law for the
Court of Appeals for the Eleventh Circuit.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.