United States Court of Appeals
For the First Circuit
No. 05-1777
JESUETTE TOBETH-TANGANG,
Petitioner,
v.
ALBERTO GONZALES, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Selya, Lynch and Howard, Circuit Judges.
Bokwe G. Mofor on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Christopher C. Fuller, Senior Litigation Counsel, and Jonathan F.
Potter, Trial Attorney, United States Department of Justice, on
brief for respondent.
March 14, 2006
SELYA, Circuit Judge. The petitioner, Jesuette Tobeth-
Tangang, a native of Cameroon, petitions for review of a decision
of the Board of Immigration Appeals (BIA) denying her motion to
reopen removal proceedings in order to allow reissuance of its
earlier merits decision. The petitioner claims that neither she
nor her attorney received a copy of that decision when it was
issued and that, therefore, the BIA abused its discretion in
denying her motion. Finding no abuse of discretion, we reject the
petition for review.
The basic facts are straightforward. The petitioner
entered the United States as a nonimmigrant visitor for business on
December 17, 1998. That status allowed her to remain in the United
States until March 16, 1999, but prohibited her from taking paid
employment during her stay. See 8 U.S.C. § 1101(a)(15)(B). The
petitioner nonetheless accepted a paid job and overstayed her
prescribed time. On June 16, 1999, the Immigration and
Naturalization Service instituted removal proceedings against her
by the issuance of a notice to appear. See id. § 1229(a).
The petitioner retained counsel and cross-applied for
asylum, withholding of removal, and voluntary departure. She
averred in substance that, if deported to Cameroon, she would be at
risk because of her prior political affiliation. Her most detailed
allegation was that, as a member of the Social Democratic Front,
she had been kidnaped, beaten, and interrogated in 1997 by members
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of the ruling Cameroon People Democratic Movement. Building on
that foundation, she suggested that, if she were to return to
Cameroon, her political antagonists would kill her.
The Immigration Judge (IJ) held an evidentiary hearing on
various dates. Finding the petitioner's testimony lacking both in
credibility and in corroboration, the IJ rejected the full panoply
of the petitioner's requests for relief and ordered her removed to
Cameroon. The IJ filed his decision on May 3, 2000.
The petitioner, through her attorney, took a timely
appeal to the BIA. On the same date (May 31, 2000), her counsel
filed an entry of appearance (Form EOIR-27). Two weeks later, the
petitioner's counsel filed a brief with the BIA. The signature
block contained a different mailing address than the address noted
on his entry of appearance.1
On March 26, 2003, the BIA affirmed the IJ's ukase. As
required by rule, the BIA mailed a copy of its decision (the
Decision) to the attorney's address of record (i.e., to him at the
address stated in his entry of appearance form). See 8 C.F.R. §
1003.1(f). The attorney had moved, however, so the copy of the
Decision was returned as undeliverable by the postal service. The
petitioner claims — and for present purposes, we assume arguendo —
1
The record shows that the entry of appearance form
unambiguously listed counsel's address as "8121 Georgia Avenue
#102, Silver Spring, MD 20910." Inside his brief, counsel listed
his address as "914 Silver Spring Avenue, #112," in the same
municipality and state.
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that neither she nor her lawyer knew of the Decision until November
5, 2004, when the petitioner attended a meeting convened by
immigration officials.
Four days after that meeting, the petitioner, acting
through the same counsel, lodged an inquiry with the BIA about the
status of her case. In that inquiry, she asserted that neither she
nor her attorney had received any correspondence from the BIA since
June 1, 2001. The BIA responded promptly, sending the lawyer a
copy of the Decision and informing him that he apparently had moved
his office without changing the address on file with the BIA.
On December 11, 2004, the petitioner moved for reissuance
of the Decision. She implored the BIA to entertain the motion
because neither she nor her counsel had contemporaneously received
a copy of the Decision. The BIA denied the motion on April 26,
2005. Treating it as a motion to reopen,2 the BIA determined that
there had been no defect in service of the Decision and that the
petitioner's counsel had neglected to file a change of address form
as required by the applicable regulation. See 8 C.F.R. §
1003.38(e).
This petition for judicial review followed. In it, the
petitioner prays that we reverse the BIA's denial of her motion on
2
Although the petitioner sought reissuance of the Decision,
that relief is not mentioned in the regulations. In all events,
the case would have to be reopened before the BIA could grant the
requested relief. We therefore follow the BIA's lead and treat the
motion as a motion to reopen.
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the ground that the Decision was never properly served upon her.3
We review the BIA's decision to grant or deny a motion to
reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323
(1992). Within that rubric, we must uphold the BIA's subsidiary
findings of fact as long as those findings are supported by
substantial evidence. Radkov v. Ashcroft, 375 F.3d 96, 98 (1st
Cir. 2004). However, the BIA's legal conclusions are reviewed de
novo. Id. Any material error of law automatically constitutes an
abuse of discretion. Id.
We discern no abuse of discretion here. The BIA has an
affirmative obligation to mail a copy of its final decision to the
alien. See 8 C.F.R. § 1003.1(f). Where, as here, the alien is
represented by counsel, that duty may be discharged by mailing a
copy of the decision to the alien's attorney of record. See id.
In this case, the petitioner was represented by counsel, so a
proper mailing to the attorney was the legal equivalent of a proper
mailing to the petitioner. See id. § 292.5(a).
The mailing here was proper. The record makes manifest
that the BIA sent a transmittal letter enclosing the Decision on
3
The petitioner also attempts to attack the correctness of the
Decision. That attack falls outside the scope of our review. See
8 U.S.C. § 1252(b)(1) (requiring that petitions for review be filed
within thirty days of the final administrative decision); see also
Stone v. INS, 514 U.S. 386, 406 (1995) (holding that a court of
appeals lacks jurisdiction to review a BIA decision if the petition
for review is filed after the statutory deadline). Consequently,
we do not address this aspect of the petitioner's asseverational
array.
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March 26, 2003 (the day that it rendered the Decision) to the
petitioner's attorney at the latter's address of record. The
record contains not only a copy of this transmittal letter but also
a copy of a second letter sent by the BIA, in November of 2004,
following the petitioner's belated inquiry into the status of her
case. In that second letter, the BIA explained that the earlier
transmittal letter was returned as undeliverable. Finally, the
second letter noted that counsel had not advised the BIA of a
change in address when he moved his office.
The BIA accepted these facts as true, and so do we. The
record permits no other conclusion. The short of it, then, is that
the BIA mailed the Decision to the petitioner's attorney within the
prescribed time frame and at the address he had specified.
Given this factual predicate, our decision in Radkov is
controlling. There, on substantially similar facts, we held that:
The time for filing a review petition begins
to run when the BIA complies with the terms of
the applicable regulations by mailing its
decision to a petitioner's address of record.
Even if, as the petitioners contend, the
mailing in this case somehow went awry without
any fault on the part of the BIA, that
circumstance alone would not excuse the
failure to file a timeous motion to reopen.
Radkov, 375 F.3d at 99 (citations omitted). It follows that the
BIA's mailing was properly sent. And since its non-receipt was not
due to any fault on the part of the BIA, the fact that it was not
received does not suffice to excuse the petitioner's failure to
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file a timely motion to reopen. See id.; see also 8 C.F.R. §
1003.2(c)(2) (requiring that a motion to reopen be made within
ninety days of the final administrative decision in the underlying
proceeding).
The petitioner argues that the reference to counsel's new
address in the signature block of the brief should be deemed
sufficient to apprise the BIA of his change of address. We find
this argument unconvincing. The regulations prescribe a set
procedure by which aliens and their attorneys must keep the BIA
informed of changes in address. See 8 C.F.R. § 1003.38(e)
(requiring aliens and their counsel to submit an EOIR-33 form
within five business days of any change in address). The record is
devoid of any indication that the petitioner's counsel complied
exactly or substantially with this regulation — and, indeed, the
petitioner does not claim that her lawyer did so.
Quasi-judicial proceedings, like judicial proceedings,
operate best when clear rules of procedure are prescribed. Once
that is done, however, litigants must comply with applicable rules,
and the agency, like a court, is entitled to assume that the
parties are compliant. Obedience to the rules is important; unless
the agency demands such obedience, it cannot command respect. It
follows inexorably that non-observance of the rules should neither
be indulged nor lightly excused. Cf. de la Torre v. Cont'l Ins.
Co., 15 F.3d 12, 16 (1st Cir. 1994) (explaining that a plaintiff
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who fails to comply with "clearly delineated rules" cannot
legitimately be heard to complain when the court holds fast to
those rules).
So it is here. The BIA was entitled to rely on the
address on file, and had no duty to hunt through every piece of
paper pertinent to the case in search of indications to the
contrary.
We need go no further. Simply put, the BIA satisfied its
legal obligation by mailing the Decision to the petitioner at the
unrevoked address furnished by her counsel on the entry of
appearance form. See Radkov, 375 F.3d at 99; Nowak v. INS, 94 F.3d
390, 391-92 (7th Cir. 1996). Its subsequent adherence to the
regulations governing entries of appearance and changes of address
was well within the realm of its discretion. Consequently, there
is no principled way that we can overturn the BIA's denial of the
motion to reopen.
The petition for review is denied.
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