Jacques: ICE Held Him. His Appeal Papers Went Somewhere Else.

You are in immigration detention. A judge has ruled for you. The government appeals, and the papers telling you about the appeal, and when your answer is due, go to a building where you are not.

That happened to Omar Rolando Ricardo Jacques twice. An immigration judge twice granted him withholding of removal, the protection that bars removing a person to a country where their life or freedom would be threatened on a protected ground. The Department of Homeland Security appealed both times. Both times the Board of Immigration Appeals ruled against him without hearing from him. He was in ICE custody the whole time.

In Jacques v. Blanche, No. 23-3015 (9th Cir. Aug. 28, 2026), a published decision by a divided panel, the Ninth Circuit held that the mailings violated due process. The government holds the detainee, so it is the party that should know where he is. Once DHS told the Board he was somewhere else and nobody tried again, the notice failed. That takes a rule the court had just applied to returned hearing notices and carries it to a detainee’s Board appeal. The court vacated both Board rulings and ordered the first appeal to begin again with notice to the right address. Jacques now gets to argue. Whether he keeps his protection is still undecided.

A traffic stop in Utah and a murder in Jamaica

Jacques came from Jamaica in October 2004, at 17, on a visitor visa, and stayed after it expired. On August 31, 2021, he was arrested in Utah after a traffic stop. He was the front-seat passenger, and police found at least 20 pounds of marijuana in the trunk. He pleaded guilty to one count of possessing a controlled substance with intent to distribute. The conviction was entered as a misdemeanor after a reduction at sentencing, as the dissent explains, and he received a suspended 364-day sentence and two years of probation. The day the state released him, October 6, 2021, ICE took him into custody.

He admitted he could be removed and applied to stay. The immigration judge denied cancellation of removal and asylum, and his torture claim was marked withdrawn. Withholding of removal was what remained, and on June 6, 2022, he won it. The judge found that returning to Jamaica “would place him in immediate danger.” His mother, “an influential member and organizer with the People’s National Party,” had been murdered at her home because of her political activities.

The conviction was the obstacle. A “particularly serious crime” bars withholding. The judge found that this one was not, crediting Jacques’s “credible testimony that he was unaware of the marijuana” and noting the misdemeanor and how he had been “given such a light sentence.”

Three addresses in one Nevada town

DHS appealed on July 5, 2022. Two days later the Board mailed notice of the appeal to Jacques at the Nye County Detention Center, 1521 E. Siri Lane, in Pahrump, Nevada. On July 26 it mailed the briefing schedule to the same place. But DHS had told the Board’s parent agency months earlier, in a filing called an “Alien Address” notice, that Jacques had been transferred to the Nye County Sheriff at 1520 S. Siri Lane. As the court put it, “1520 S. Siri Lane is plainly not 1521 E. Siri Lane.” DHS does not dispute that those mailings went to the wrong place.

Jacques filed no brief. Neither did DHS. A divided Board panel ruled anyway. Working from DHS’s notice of appeal alone, the majority sent the case back, saying the judge had “improperly re-adjudicated the respondent’s guilt or innocence” by crediting his testimony that he did not know about the marijuana and by finding that his “underlying conduct did not involve controlled substance trafficking.” The Board remarked in passing that “[t]he respondent has not responded to the appeal.”

On March 15, 2023, the judge granted withholding again. This time the judge used a tougher test for drug trafficking crimes, explained below, and still found the conviction not particularly serious.

DHS appealed again. This time the Board used the 1520 S. Siri Lane address: Notice of the appeal went there on April 12, 2023, and the briefing schedule on May 15. DHS served its brief there on June 5. Then, on June 14, DHS filed a new “Alien Address” notice. It said Jacques had been held since October 6, 2021, at a third place, the Nevada Southern Detention Center on E. Mesquite Avenue in Pahrump.

So DHS’s own forms now told two different stories, and the second one meant that everything in the second appeal had gone to the wrong address. Nothing was resent. On September 25, 2023, the Board reversed the judge again, this time denying withholding outright. It noted that Jacques had not responded. It said nothing about the new address form.

One detail matters for anyone reconstructing a file like this. In both appeals, the lawyer who had represented Jacques before the immigration judge was copied on the notice of appeal but not served with the briefing schedule, likely because, the panel said, Jacques was representing himself on appeal. Jacques later attested in a declaration that he “ha[d] not received any briefing schedules.”

The government offered two defenses

First, the government said the June 14 form reported a transfer as of the day the form was completed. If so, the April, May and June mailings might have been right when sent. The court read the form. It has a section for transfers, and that section was blank. The box that was checked said Jacques “was Detained by ICE” at the Mesquite Avenue address as of October 6, 2021. A regulation requires DHS to state “the effective date of the change in custody location,” and the only custody date on this form was the 2021 one. The earlier form from April 2022 showed what a real transfer entry looks like.

Second, the government said Jacques had not proven that the mailings failed to reach him. The court would not accept that. That argument would put detainees in “an unacceptable Catch-22,” because DHS, as the detaining agency, is “uniquely positioned—and legally required—to know where a detainee is currently located.”

Once the government knows the address is wrong, it must try again

The rule starts with a house in Little Rock. Arkansas twice sent a certified letter about unpaid property taxes to the owner, and twice the letter came back “unclaimed.” The State sold the house anyway. In Jones v. Flowers, 547 U.S. 220 (2006), the Supreme Court held that when the government learns its notice failed, it must take further reasonable steps if it practicably can. The Court imagined a postman dropping a stack of tax letters down a storm drain. No one “desirous of actually informing” the owners, it wrote, “would simply shrug his shoulders as the letters disappeared and say ‘I tried.’”

The panel relied on the en banc notice rule in United States v. Rivera-Valdes, 157 F.4th 978 (9th Cir. 2025) (en banc). Notice must be “reasonably calculated” to reach the person and give them a chance to be heard. As the panel explained, notice falls short “when the Government knows its method of service was ineffective and takes no additional steps to effect notice that are reasonably available to it.” Our Chamorro-Castillo analysis shows that rule at work on a returned hearing notice.

An earlier briefing-schedule case supplied another comparison. Quoting Singh v. Ashcroft, 362 F.3d 1164 (9th Cir. 2004), the panel explained that a notice mailed to an address different from the one the person had provided “could not have conceivably been reasonably calculated to reach him.” Here, DHS’s own form told the Board that the address was wrong.

The first appeal was the easy half. The Board mailed to an address DHS had already told it was out of date. The second appeal took one more step. DHS’s June 2023 form told the Board that its earlier mailings had gone astray, and that knowledge “trigger[ed] an obligation” to take more reasonable steps if practicable. None were taken. The government did not argue that trying again was impracticable, and the court doubted it could, since as custodian it was “in the best position to know exactly where Jacques has been detained.”

The holding is specific: When DHS has told the Board that a detained person’s location differs from the address used for a notice of appeal or briefing schedule, and the government takes no additional reasonable steps, the notice is not reasonably calculated to reach that person.

All three judges agreed that the mail failed. Judge Bennett, who had dissented in Rivera-Valdes and dissented here on other grounds, wrote that precedent compelled that conclusion and that these facts were “materially worse for the government” than in Rivera-Valdes, because here the address had come from DHS.

Bad notice alone was not enough

A due process claim in removal proceedings also requires prejudice. The person must show that the outcome “may have been affected” by the violation. May, not would.

Jacques argued that prejudice should simply be presumed, because he had been shut out of the appeal entirely. Earlier Ninth Circuit cases point in different directions. One line presumes prejudice when a lawyer’s error costs someone the appeal altogether. Singh worked through a full prejudice inquiry even though the government’s mis-mailing had kept out the brief. Zetino v. Holder found no prejudice where the notice of appeal already contained the person’s arguments. The majority expressly left the presumption undecided. It found actual prejudice instead. That finding is where the panel divided, and it turned on a step the majority said the agency had skipped.

The agency skipped a step

Whether a conviction is a particularly serious crime can be decided under two very different tests. The general one looks at the nature of the conviction, the sentence, and the underlying facts and circumstances. That is the test the judge used the first time. The other, from Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002), is far harder on the applicant. It treats drug trafficking aggravated felonies as presumptively particularly serious. The applicant must show extraordinary and compelling circumstances, including “a very small quantity of controlled substance.” The judge used that one the second time. DHS’s second appeal argued that the conviction should be deemed an aggravated felony and that the judge had applied the test wrongly.

The choice of test was close to the whole case. Under Y-L-, a person who fails even one listed circumstance cannot overcome the presumption, as the dissent explained, and the judge had found that Jacques failed two: This was not a very small quantity, and the criterion about harm to juveniles was not met. The Ninth Circuit left that presumption in place against a fresh challenge in Sarr v. Blanche, 181 F.4th 933 (9th Cir. 2026), though a petition for rehearing en banc was on file when Jacques came down. If Y-L- governs, 20 pounds in a trunk is a very hard fact. If it does not, the question returns to the general test, under which Jacques had won.

But Y-L- applies only if the conviction actually is a drug trafficking aggravated felony under immigration law. Deciding that requires the “categorical approach,” which compares what the state statute requires with the federal definition. Both sides had briefed that approach before the immigration judge, but the judge did not apply it. According to the majority, the Board accepted DHS’s arguments without examining it first.

It could have mattered. In Moncrieffe v. Holder, which we explain in our analysis of that decision, the Supreme Court held that a Georgia marijuana conviction was not necessarily an aggravated felony, because the offense did not require payment or more than a small amount. The majority in Jacques saw the same possible gap in Utah’s statute. Quantity and payment are not elements of the Utah crime, so on the majority’s view the 20 pounds in the trunk do not settle the question. The court called it “not immediately clear” whether the statute fits the federal definition and said that question “remains undecided” by the Board or any published appellate decision. It did not answer the question. It did not need to. An open question that Jacques never got to argue was enough to show the outcome may have been different.

The dissent: The mail failed, but nothing would have changed

Judge Bennett would have denied the petition, for two reasons.

The first concerns who made the argument. Jacques’s opening brief had four double-spaced pages of argument. It never mentioned “aggravated felony” or the categorical approach, and he filed no reply. To the dissent, the majority built the winning argument for him, contrary to a rule Judge Bennett quoted from the Supreme Court: “[C]ourts call balls and strikes; they don’t get a turn at bat.” The majority answered that Jacques’s brief said he would defend the judge’s finding on remand, that both sides had briefed the categorical approach before the immigration judge, and that a court reviewing a legal question is not limited to the parties’ theories.

The second concerns Utah law. Judge Bennett started with the label. Jacques pleaded to conduct Utah classifies as a third-degree felony, the conviction was reduced to a misdemeanor at sentencing, and a state’s labels do not decide what counts as an aggravated felony under federal law. He then applied what he called a “reality check.” There must be “a realistic probability, not a theoretical possibility,” that the state would use its statute for conduct outside the federal felony, and a person shows that by pointing to actual cases. The defendant in Moncrieffe had 1.3 grams. Every Utah decision the dissent could find under this statute involved more than a personal-use amount, and smaller amounts, he said, get charged under a different subsection. He noted that the Tenth Circuit, which covers Utah, had reached consistent results, including in an unpublished 2009 decision by then-Judge Gorsuch. He added that the federal exception for small amounts covers distributing marijuana, not possessing it with intent to distribute.

He made one more point about prejudice itself. The cases finding prejudice, in his reading, involved people who lost the chance to present evidence. Jacques lost, at most, a legal argument, and a court can reject a legal argument on its own. In his view, “there is no argument he could have made that would have changed the result.” The majority’s reply was that none of those Utah cases states such a limit, that other Utah cases never mention the amount (the dissent says the one the majority cited involved 118 grams), and that “we simply do not know at this stage” how far the statute reaches. The prejudice test asks only whether the outcome may have been different, and the Board should answer the Utah question first.

What the remand reopens

The court vacated both Board orders and told the Board to re-notice DHS’s appeal from the judge’s June 6, 2022 decision to the correct detention address and issue a new briefing schedule. The case goes back to the first appeal. The Board was told to consider any arguments Jacques raises in support of the judgment granting withholding, and he did not need a cross-appeal to raise them.

Withholding is what the remand concerns, because the judge had denied cancellation and asylum and marked the torture claim withdrawn, and the instruction speaks only of the judgment granting withholding. The court’s docket shows that it stayed his removal the day it ruled, with Judge Bennett voting to deny, and that its mandate issued on October 20, 2026.

Whether the Utah conviction is an aggravated felony and whether it is particularly serious remain to be fought out, and DHS can press its position again. Winning the aggravated-felony point would not end the case. The remand returns to the judge’s first decision, which used the general test, and the Board has shown how it can apply that test to a drug conviction outside Y-L-. In Matter of G-L-C-, 29 I&N Dec. 717 (BIA 2026), the Board accepted that a Pennsylvania delivery statute was not categorically an aggravated felony. It still found a particularly serious crime, pointing to a large quantity of packaged marijuana, an attempt to hide it and a sentence of three to five years, and it put the burden on the applicant. Our G-L-C- analysis covers that ruling. The comparison is ours: Jacques received a suspended 364-day sentence, and the judge credited his testimony that he did not know about the marijuana. Those are real differences, and the second is contested. The first Board majority said crediting that testimony “improperly re-adjudicated the respondent’s guilt or innocence.” That order is vacated, but DHS can press the point again, and G-L-C- explains the next step. Once the elements of the offense potentially bring it within the category of particularly serious crimes, the Board can weigh “all reliable information,” including material beyond the conviction record. How much the differences count is what the new briefing is for.

What to check if an appeal went on without you

• Every mailing, one at a time. A notice of appeal, a briefing schedule and the government’s brief are separate papers. In Jacques they went out on different dates. Write down the address on each.
• Where you actually were on each date. Build the custody history, including transfers between facilities in the same town.
• DHS’s address filings. Ask for the record of proceedings and look for “Alien Address” notices. The dates and boxes on those forms decided this case.
• Who was copied on what. A former lawyer who received the notice of appeal may never have seen the schedule. Ask them what arrived.
• The argument you would have made. Jacques asked for prejudice to be presumed and won only because the majority found actual prejudice. Say concretely what you would have told the Board and why it could have changed the result. If the fight is over how a state statute is used, find actual prosecutions, because the dissent’s objection was that none had been shown.
• Proof that you filed. Jacques said he mailed a motion to reopen. The Board had no record of it. Keep proof of every filing and every address update. Our guide to immigration address changes explains the forms.
• The deadline to go to court. A petition for review must be filed within 30 days of the final removal order. Jacques filed on day 29. Do not wait for the mail to sort itself out.

For representation in a removal case, see our deportation defense practice.