Matter of Diji: When an NTA Goes to an Address You Gave Years Ago

Of everything the Board has issued this month, this is the decision most likely to reach an ordinary case. It is about an unglamorous thing — which address the government may mail a charging document to — and it makes a familiar argument for reopening a removal order harder to win.

What the Board held

Two headnotes, in the Board's own words:

“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.”

“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.”

The second sentence is the change. The address does not have to be one given in response to the NTA, or after it. An address supplied to the agency earlier — on an application, in some other filing — can be the address DHS uses, and notice mailed there can support an order of removal entered in a person's absence.

What it replaces

Under Matter of G-Y-R-, decided in 2001, the Board had taken a narrower view of when a mailed notice was sufficient to support an in absentia order. Diji overrules it outright — “we now overrule it,” the Board writes — and a footnote does the same to Matter of Anyelo.

The decision rests on the notice provisions at INA sections 239(a)(1) and 239(a)(1)(F), the in absentia provisions at 240(b)(5)(A) and 240(b)(5)(C)(ii), the address-reporting obligations at sections 262 and 265, and the reopening regulations at 8 C.F.R. §§ 1003.23 and 1003.26(c)(2).

The practical consequence

The obligation to keep an address current with the immigration agencies is not new. What is new is how much weight it now carries. If the most recent address a person gave the government is an apartment they moved out of four years ago, Diji says DHS may mail there, and the fact that the notice never reached the person is not by itself the answer.

That has a mirror image worth saying plainly: updating an address is one of the few genuinely preventive steps available in immigration practice, it costs nothing, and after Diji it protects more than it used to. An address on file with one agency is not automatically an address on file with another.

What it does not settle

The Board wrote that it identified no limit making the holding prospective only, and it expressly discounted reliance interests. But footnote 7 concedes what matters most here: the Board must follow contrary circuit law where it exists. Several circuits have ruled differently on related questions, and this decision does not displace binding circuit precedent for cases arising there.

Two members dissented. Judge Mullane wrote that the majority identified no textual error in G-Y-R-, that the specific notice provisions should govern the general ones, that DHS had never asked the Board to overrule the case, and that rising in absentia numbers undercut the majority's account of the old rule as unworkable. A second member dissented without opinion.

Whether Diji controls a particular case, and what a motion to reopen looks like after it, depends on where the case arises and what the record shows about the address and the mailing. Those are questions for the file, not for an article.

This article is general legal information about a recent precedent decision, not legal advice, and does not create an attorney-client relationship. Whether this decision controls a particular case depends on the circuit in which the case arises and on facts specific to that case. Consult a qualified immigration attorney before acting on a removal order or a notice. This website is attorney advertising.