Aponte v. Holder

United States Court of Appeals
For the First Circuit

No. 09-2408

YUBELKYS APONTE,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

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

Before

Boudin, Lipez, and Thompson,
Circuit Judges.

Brian Monahan, Jeff Ross, and Sidra Vitale on brief for
petitioner.
Tony West, Assistant Attorney General, Civil Division, Anthony
C. Payne, Senior Litigation Counsel, Office of Immigration
Litigation, and Lindsay S. Williams, Attorney, Office of
Immigration Litigation, on brief for respondent.

June 18, 2010
 THOMPSON, Circuit Judge. Petitioner Yubelkys Aponte is

a citizen of the Dominican Republic who seeks review of a decision

of the Board of Immigration Appeals (BIA) denying her motion to

reopen removal proceedings. Aponte argues that the BIA committed

three errors: first, it provided inadequate notice of a briefing

schedule by mailing the schedule to an incomplete address; second,

it violated her right to due process by summarily dismissing her

appeal on the basis that she did not file a brief; third, it denied

her motion to reopen despite the alleged due process violation.

The government argues that the mailing was proper and that Aponte

has failed to demonstrate prejudice, a necessary element of a due

process violation. We grant the petition for review and remand for

further proceedings in accordance with this decision.

I. Background

Aponte was admitted to the United States as a Lawful

Permanent Resident (LPR) on February 2, 1996. In 1999, Aponte pled

guilty to Criminal Possession of a Controlled Substance in the

Fifth Degree in the State of New York Oneida County Court. On

October 3, 2003, Aponte applied for admission to the United States

as an LPR at Luis Muñoz Marin International Airport in San Juan,

Puerto Rico. On January 21, 2004, the Department of Homeland

Security (DHS) initiated removal proceedings against Aponte by

serving her with a Notice to Appear. DHS contended that Aponte was

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removable pursuant to § 212(a)(2)(A)(i)(II) of the Immigration and

Nationality Act (INA). 1

Aponte appeared with counsel before an Immigration Judge

(IJ) on several occasions, admitting to the allegations and

conceding removability. The IJ granted over three years' worth of

continuances while Aponte's counsel attempted to have Aponte's

criminal conviction expunged in New York. On June 4, 2007, the IJ

refused to continue the case further and ordered Aponte removed.

Aponte, through counsel, filed a timely appeal to the BIA

on July 3, 2007. The Notice of Appeal did not set forth any

specific reasons for the appeal but instead indicated that a brief

would be filed. Aponte's counsel, Irena Zolotova, filed an entry

of appearance at this time, using form EOIR-27. The EOIR-27 form

includes two consecutive boxes, the first labeled "NAME OF ATTORNEY

OR REPRESENTATIVE," the second labeled "ADDRESS." In the first

box, Zolotova listed herself as "Irena Zolotova, Ross &

1
INA § 212(a)(2)(A), codified at 8 U.S.C. § 1182(a)(2)(A),
provides as follows:

Except as provided in clause (ii), any alien convicted
of, or who admits having committed, or who admits
committing acts which constitute the essential elements
of —

...

(II) a violation of (or a conspiracy or attempt to
violate) any law or regulation of a State, the United
States, or a foreign country relating to a controlled
substance (as defined in section 802 of Title 21),

is inadmissible.

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Associates." In the second box, Zolotova listed her address as "20

Park Plaza, Suite 633, Boston, MA 02116."

On January 11, 2008, the BIA mailed a notice of briefing

schedule to "Zolotova, Irena, 20 Park Plaza, Suite 633, Boston, MA

02116," omitting the firm name "Ross & Associates." Nowhere in the

administrative record does any contact information listed by

Zolotova fail to include the firm name "Ross & Associates."

The briefing schedule set a deadline of February 1, 2008

for Aponte's brief. Instead of a brief, however, the next document

filed with the BIA on Aponte's behalf was a "Motion to Withdraw and

Substitute Counsel" dated July 21, 2008 and filed by Attorney

Phillip Jacobs. In this motion, Jacobs indicated that Aponte no

longer retained Zolotova as counsel and requested the reissuance of

a briefing schedule. Jacobs also filed an EOIR-27 Notice of

Appearance. In the "NAME" box, Jacobs listed "Phillip Jacobs." In

the "ADDRESS" box, Jacobs listed "20 Park Plaza, Ste. 633."

On November 18, 2008, the BIA issued a decision

dismissing Aponte's appeal pursuant to 8 C.F.R. § 1003.1(d)(2). 2

2
8 C.F.R. § 1003.1(d)(2) provides as follows:

Summary dismissal of appeals —

(i) Standards. A single Board member or panel may
summarily dismiss any appeal or portion of any appeal in
any case in which:

(A) The party concerned fails to specify the reasons for
the appeal on Form EOIR-26 or Form EOIR-29 (Notices of
Appeal) or other document filed therewith; [or]

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The BIA noted that Aponte had not indicated any specific reasons

for her appeal on the Notice of Appeal form, thus providing grounds

for summary dismissal under 8 C.F.R. § 1003.1(d)(2)(i)(A). The BIA

further noted that despite indicating on the Notice of Appeal form

that she would be submitting a brief, Aponte neither filed a brief

nor explained why she failed to file a brief, thus providing

grounds for summary dismissal under 8 C.F.R. § 1003.1(d)(2)(i)(E).

Because Aponte did not explain her failure to file a brief, the BIA

denied Aponte's request for reissuance of a briefing schedule.

However, the BIA did grant the motion to substitute counsel,

allowing Jacobs to enter for Aponte.

On April 6, 2009, Attorney Sidra Vitale filed an EOIR-27

Notice of Appearance indicating that she was entering for Aponte.

In the "NAME" box, Vitale listed "Ross + Associates, Sidra Vitale,

Esq." In the "ADDRESS" box, Vitale listed "20 Park Plaza, Boston,

MA 02116." On April 10, 2009, Vitale filed a "Motion to Reopen and

Re-issue Briefing Schedule for Defective Notice." On Aponte's

behalf, Vitale argued that the BIA's failure to include "Ross &

Associates" in the address when mailing the briefing schedule to

Zolotova, despite the inclusion of the firm name on Zolotova's

...

(E) The party concerned indicates on Form EOIR-26 or Form
EOIR-29 that he or she will file a brief or statement in
support of the appeal and, thereafter, does not file such
brief or statement, or reasonably explain his or her
failure to do so, within the time set for filing[.]

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Notice of Appearance form, constituted inadequate notice. In

support of this argument, Vitale filed an affidavit in which she

testified that neither she nor Aponte received timely notice of the

briefing schedule. Vitale further testified that Aponte did not

have actual notice of the briefing schedule until the BIA issued

its decision dismissing the appeal.3 There is no evidence that

either Aponte or any of her attorneys received the briefing

schedule before receiving the decision dismissing her appeal;

however, there is also no evidence as to precisely when counsel for

Aponte had actual notice of the briefing schedule.

On September 14, 2009, the BIA issued a written decision

denying the motion to reopen. The BIA held that the information

supplied by Vitale was insufficient to establish inadequate notice.

In reaching this conclusion, the BIA relied solely on Tobeth-

Tangang v. Gonzales, 440 F.3d 537 (1st Cir. 2006), but failed to

engage in any discussion or analysis of that case.

This petition for judicial review followed. In it,

Aponte prays that we reverse the BIA's denial of her motion on the

ground that the BIA failed to provide her with adequate notice of

the briefing schedule, thereby depriving her of an opportunity to

be heard and violating her right to due process. Aponte suggests

that reopening the removal proceedings to allow for briefing is the

3
The affidavit makes reference to a decision dated September 16,
2008; however, no such decision exists. It is clear from context,
however, and the parties do not dispute, that the decision being
referenced is the BIA's November 18, 2008 decision.

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only way to cure the alleged constitutional defect and to ensure a

full and fair proceeding before the BIA.

II. Discussion

A. Jurisdiction

Before proceeding to the merits of the appeal, we note

that our jurisdiction over this matter is limited. The INA

provides generally that "no court shall have jurisdiction to review

any final order of removal against an alien who is removable by

reason of having committed" certain criminal offenses, including

any "violation of ... any law or regulation of a State ... relating

to a controlled substance ... ." 8 U.S.C. § 1252(a)(2)(C)

(establishing jurisdictional bar); 8 U.S.C. § 1182(a)(2) (providing

that a controlled substance violation is a basis for removal).

However, in an exception to the general rule, this court retains

jurisdiction over "constitutional claims or questions of law raised

upon a petition for review ... ." 8 U.S.C. § 1252(a)(2)(D); see

also Gourdet v. Holder, 587 F.3d 1, 5 (1st Cir. 2009). It is

uncontested that Aponte was convicted of a crime relating to a

controlled substance; therefore, our review will be limited to any

legal issues stemming from the BIA's denial of Aponte's motion to

reopen. See Gourdet, 587 F.3d at 5.

B. Standard of Review

We review the BIA's decision to deny a motion to reopen

under the deferential abuse of discretion standard. Kucana v.

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Holder, 130 S.Ct. 827, 838 (2010); see also INS v. Doherty, 112

S.Ct. 719, 724-25 (1992). The abuse of discretion standard may be

deferential, but it is not toothless. For example, we review the

BIA's legal conclusions de novo. See Tobeth-Tangang, 440 F.3d at

539. Any material error of law automatically constitutes an abuse

of discretion. Id. We also review the adequacy of the BIA's

explanation, because "cursory, summary or conclusory statements from

the Board leave us to presume nothing other than an abuse of

discretion." Onwuamaegbu v. Gonzales, 470 F.3d 405, 412 (1st Cir.

2006) (quoting Zhao v. United States Dep't of Justice, 265 F.3d 83,

97 (2d Cir. 2001)). An inadequate explanation therefore constitutes

an abuse of discretion as well. Id. Finally, our review is limited

to "the basis articulated in the decision," and we "may not assume

that the Board considered factors that it failed to mention in its

opinion." Daneshvar v. Ashcroft, 355 F.3d 615, 626 (6th Cir. 2004)

(citing Casem v. INS, 8 F.3d 700, 702 (9th Cir. 1993); Anderson v.

McElroy, 953 F.2d 803, 806 (2nd Cir. 1992)). Thus we will vacate

the decision below if the BIA committed a material error of law or

failed to articulate its reasoning adequately.

C. Framing the Issue

Aponte argues that the BIA committed a material error of

law when it denied her motion to reopen. Both Aponte and the

government spill most of their ink on the question of whether the

BIA was bound to reopen the proceedings below in order to remedy a

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due process violation. However, we are mindful of "[t]he maxim

that courts should not decide constitutional issues when this can

be avoided" and therefore do not reach the question of whether a

due process violation occurred. See U.S. v. Vilches-Navarette, 523

F.3d 1, 9 n.6 (1st Cir. 2008). Instead, we hold that the BIA's

decision is not an adequate disposition of an important issue —

namely, whether Aponte is entitled to have her appeal reopened due

to inadequate notice of the briefing schedule.

D. Inadequacy of the BIA's Decision

"The motion to reopen is a procedural device," which

"serv[es] to ensure that aliens [get] a fair chance to have their

claims heard." Kucana, 130 S.Ct. at 837 (internal quotation

removed). Thus, courts have held that a motion to reopen is an

appropriate vehicle for addressing a dismissal due to the absence

of a petitioner's brief. See Chen v. Gonzales, 436 F.3d 76, 78-79

(2d Cir. 2006) (per curiam); Zheng v. Gonzales, 422 F.3d 98, 106-

107 (3d Cir. 2005); Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th

Cir. 2004). This court has held that the BIA properly denied an

immigrant's untimely motion to reopen where her attorney failed to

provide the BIA with an up-to-date address and therefore did not

receive a briefing schedule. See Tobeth-Tangang, 440 F.3d at 539-

40. This court has also held that the BIA improperly denied an

immigrant's motion for reconsideration where his attorney provided

a correct address but failed to receive a briefing schedule due to

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the BIA's erroneous mailing. See Hossain v. Gonzales, 381 F.3d 29,

31-32 (1st Cir. 2004).

Despite the existence of clear precedent for the BIA to

work from, the BIA failed to engage in any meaningful analysis when

it denied Aponte's motion to reopen. In its decision, the BIA

found: (1) that it mailed the briefing schedule "to the address

provided by Irena Zolotova"; (2) that there was "no indication that

the briefing schedule was returned as undeliverable"; (3) that the

Vitale affidavit "does not provide sufficient detail as to when the

[briefing schedule] was actually received"; and (4) that its later

"decision was apparently received, as were apparently all the other

notices that were mailed to the same address without listing the

name of the law firm." The BIA then cited Tobeth-Tangang without

engaging in any discussion of the case.

Most of the BIA's findings are misplaced. First, the BIA

did not mail the briefing schedule to the address provided by Irena

Zolotova, but instead omitted the firm name "Ross & Associates."

The government argues that the firm name was not actually part of

Zolotova's address of record because it appeared in the "NAME" box

rather than the "ADDRESS" box; however, this is a distinction

without a difference. The BIA can no more omit relevant

identifying information from the "NAME" box than it can from the

"ADDRESS" box and still claim to have sent the mailing to a

complete address. Second, there may have been no indication that

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the briefing schedule was returned undeliverable, but there is

likewise no direct evidence in the record to indicate that the

briefing schedule was received.4 The BIA may not presume that a

mailing to an incomplete address was received. See Hossain, 381

F.3d at 32 ("The doctrine of regularity of the mail presumes the

address used is the correct one."). Third, the affidavit does not

sufficiently indicate when the briefing schedule was received, but

it is sufficient — if barely — to support a finding that the

briefing schedule was not timely received. Untimely receipt of the

briefing schedule could just as easily have kept Aponte from filing

a brief as no receipt at all. Fourth, the BIA indicated no

conclusive basis for its finding that Aponte's attorneys

"apparently" received all mailings subsequent to the briefing

schedule. It is unclear to us how these subsequent receipts were

apparent to the BIA given that there is nothing in the record to

support such a finding. And although Aponte's attorneys do not

claim that subsequent, incorrectly-addressed mailings were also

lost, this does not by itself establish that they received the

initial briefing schedule.

4
The government suggests that the BIA's inclusion of a suite
number as part of the address serves as evidence that the briefing
schedule was received. However, it appears that the BIA did not
actually consider the suite number in rendering its decision.
Because our review is limited to "the basis articulated in the
decision," and we "may not assume that the Board considered factors
that it failed to mention in its opinion," Daneshvar, 355 F.3d at
626, we will not address the suite number further save to note that
the BIA may consider it as circumstantial evidence on remand.

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 The BIA's reliance on Tobeth-Tangang is also misplaced.

We based our ruling in Tobeth-Tangang on the factual premise that

the petitioner's attorney violated BIA rules by failing to provide

the BIA with an updated address after moving to a new office. See

440 F.3d at 540 (citing 8 C.F.R. § 1003.38(e)). Here, Aponte's

attorney complied with BIA rules by providing a complete address on

the EOIR-27 Notice of Appearance form. See 8 C.F.R. § 1003.3(a)(3)

(providing that the attorney for any alien must file an EOIR-27

Notice of Appearance form). When the BIA mailed the briefing

schedule, it simply neglected to include part of the identifying

information set forth on that form. Because the BIA and not

counsel is at fault here, Tobeth-Tangang does not control the BIA's

decision, nor does it control ours.

We turn instead to Hossain, which deserves a thorough

treatment in view of its close similarity to this case. In

Hossain, Mohammed Mozammel Hossain, a citizen of Bangladesh, sought

relief from exclusion. 381 F.3d at 30. An IJ denied relief, and

Hossain appealed the decision to the BIA. Id. On his Notice of

Appeal, Hossain requested the opportunity to file a brief. Id. at

30-31. Hossain's attorney filed an entry of appearance, listing

his name and address as "John Traficonte, Cabot Corporation, 75

State Street, Boston, MA 02109." Id. at 31. The BIA, however,

sent a briefing schedule to "John Traficonte, 75 State Street,

Boston, MA 02109," omitting the company name "Cabot Corporation."

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Id. Traficonte never received the briefing schedule and thus did

not file a brief. Id. Nevertheless, the BIA issued a decision

affirming the IJ without opinion. Id. at 30. Hossain moved for

reconsideration5 based solely on the fact that Traficonte never

received the briefing schedule and therefore did not file a brief.

Id. at 31. The BIA denied the motion, finding no defect in service

of the briefing schedule. Id.

This court vacated the decision of the BIA and remanded

for further proceedings. Hossain, 381 F.3d at 33. We held that

the BIA had committed an error by mailing the briefing schedule to

an incomplete address. Id. at 31-32; see also 8 C.F.R. §

1003.3(c)(1) (providing that an alien has a right to file a brief

subject to a briefing schedule set by the BIA). We directed the

BIA to allow a renewed motion for reconsideration and to decide

that motion in accordance with our decision. Hossain, 381 F.3d at

33.

The close similarity between the facts here and those in

Hossain leads us to the same resolution. In each case, the

petitioner's attorney properly submitted an entry of appearance

5
Although Hossain concerns a motion for reconsideration, while
this case concerns a motion to reopen, both types of motions are
appropriate means of addressing a petitioner's failure to file a
timely brief. However, a motion to reopen is more appropriate
where, as here, new evidence is presented — in this case, the
affidavit of Aponte's counsel. See Arias-Valencia v. Mukasey, 529
F.3d 428, 430 n.1 (1st Cir. 2008); Tandayu v. Mukasey, 521 F.3d 97,
99 n.2 (1st Cir. 2008). We apply the abuse of discretion standard
to both types of motions on review. See Arias-Valencia, 529 F.3d
at 430 n.1.

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listing a valid name and address. Hossain, 381 F.3d at 31. In

each case, the BIA left out a piece of identifying information — in

Hossain the company name and in this case the firm name — when

sending a briefing schedule to the attorney. Id. In each case,

the petitioner's attorney failed to receive the briefing schedule

in time to file a brief. Id. Thus, Hossain would appear to

control on these facts, and we remand for the BIA (1) to provide

Aponte with an opportunity to file a renewed motion to reopen, and

(2) to decide that motion in accordance with this decision.

However, this remand comes with a caveat. We note again

that the affidavit presented by Aponte's attorney is barely

sufficient to establish that the briefing schedule was not timely

received. The affidavit's shortage of details seems to indicate

that it is a product of either hasty work or intentional

obfuscation, and its sparsity should certainly be addressed in the

renewed motion to reopen. In particular, the issue of when counsel

actually received the briefing schedule, if ever, stands out to us

as requiring clarification, just as it did to the BIA. Indeed, if

any attorney representing Aponte actually received the briefing

schedule before the case was dismissed, then Hossain carries much

less force here than it would if counsel never received the

briefing schedule. Cf. 381 F.3d at 31 (stating that Hossain's

attorney never received a briefing schedule). Whatever the new

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affidavit provides, the BIA still must apply the law to the record

evidence before it and determine whether to reopen Aponte's appeal.

We also call attention to the Supreme Court's statement

in Kucana that "[a] court decision reversing the denial of a motion

to reopen does not direct the Executive to afford the alien

substantive relief," but instead "touches and concerns only the

question whether the alien's claims have been accorded a reasonable

hearing." Kucana, 130 S.Ct. at 837. Despite our conclusion that

Aponte did not receive a reasonable hearing, she still has a very

difficult path ahead of her in order to obtain any substantive

relief. The record indicates that she has had great difficulty

getting her record expunged in New York and suggests no other basis

for relief from removal. Furthermore, even if the BIA does elect

to reopen the appeal, the merits are for it to determine as long as

it acts within the parameters established by law. Overall,

Aponte's likelihood of succeeding on the merits might well be

negligible. However, the BIA must at least cast a more critical

eye on its mailing procedure here and make certain that Aponte

receives the full benefit of the administrative process that

Congress has elected to provide for her.

III. Conclusion

The BIA abused its discretion by issuing an inadequately

reasoned decision denying Aponte's motion to reopen. Accordingly,

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we grant the petition for review and remand to the BIA for further

proceedings in accordance with this decision.

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