F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 3 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
DAMAR BAHADUR GURUNG,
Petitioner,
v. No. 03-9574
JOHN ASHCROFT, United States
Attorney General,
Respondent.
ON PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
(INS No. A96-104-175)
Submitted on the briefs:
Dahmar Bahadur Gurung, pro se.
Emily Anne Radford, Assistant Director, Keith I. Bernstein, Law Clerk, Office of
Immigration Litigation, United States Department of Justice, Washington, D.C.,
for Respondent.
Before EBEL, ANDERSON , and BRISCOE , Circuit Judges.
EBEL, Circuit Judge.
An immigration judge (IJ) entered an order in absentia removing petitioner
Damar Bahadur Gurung to Nepal after Mr. Gurung failed to appear at a scheduled
hearing. Mr. Gurung then unsuccessfully sought to reopen his case. In this court,
proceeding pro se, he seeks review of the Board of Immigration Appeals’ (BIA)
decision affirming the IJ’s refusal to reopen the removal proceedings. We
affirm. 1
I.
Mr. Gurung entered the United States in December 2000 with authorization
to remain in this country until June 2001. He overstayed his authorization period,
and in October 2002 filed an application for asylum, asserting that he had been
subject to past persecution in Nepal by the Maoist Terrorist group and feared
future persecution. The former Immigration and Naturalization Service (INS)
issued a notice to appear at a hearing before an IJ in Denver, Colorado, at
9:30 a.m. on February 6, 2003, to show why he should not be removed from the
United States. R., at 65-66. 2 The notice specifically indicated that “[i]f you fail
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
2
On March 1, 2003, the INS ceased to exist as an independent agency within
the Department of Justice, and its functions were transferred to the newly formed
Department of Homeland Security (DHS). Yuk v. Ashcroft , 355 F.3d 1222, 1224
(continued...)
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to attend the hearing at the time and place designated . . . a removal order may be
made by the immigration judge in your absence. . . .” Id. at 66. According to
a name-stamped certificate of service maintained at the INS, the notice to appear
was sent to Mr. Gurung by regular mail at the Boulder, Colorado, address he
provided to the INS. Id. at 65-66.
Mr. Gurung failed to appear at the scheduled hearing. The IJ determined
that the INS had provided Mr. Gurung written notification of the time, date, and
location of the hearing. Id. at 26. The IJ conducted the hearing in absentia,
deemed Mr. Gurung to have abandoned his application for asylum, and ordered
him removed to Nepal. Mr. Gurung received a copy of the IJ’s order and, in
response, sent a letter asserting that he had not received notice of the hearing.
The IJ construed the letter as a motion to reopen proceedings and denied it,
concluding that Mr. Gurung “failed to show good cause why he was not present in
Court.” Id. at 25. The IJ found it significant that Mr. Gurung received the final
notice of removal “at [the] same address that the notice of hearing was sent to.”
Id. A copy of this decision was mailed to Mr. Gurung at the same address used
earlier in the proceedings, and Mr. Gurung timely appealed the IJ’s ruling.
2
(...continued)
n.3 (10th Cir. 2004). Mr. Gurung’s hearing took place before the transfer date,
but the BIA’s decision was issued after the date. For purposes of consistency,
this opinion refers to the INS rather than the DHS.
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On appeal to the BIA, Mr. Gurung, represented by counsel, primarily
argued that proof of mailing was insufficient because the certificate of service
was name-stamped, not hand-signed. Id. at 4-6. The BIA affirmed the denial of
the motion to reopen. It rejected the name-stamp argument, and “[i]n the absence
of any rebuttal evidence, . . . presume[d] that the serving official mailed notice of
the hearing . . . , and that Postal Service employees completed delivery to him
at the same address at which he received notice of the Immigration Judge’s
in absentia decision.” Id. at 3.
This petition for review followed. Mr. Gurung argues that he cannot be
fairly charged with receiving process because he never received the notice of
hearing. He also claims that the use of a name stamp on the certificate of service
rendered the notice ineffective.
II.
“We have jurisdiction to review the BIA’s decision under 8 U.S.C. §§ 1252
and 1229a(b)(5)(D).” Tang v. Ashcroft , 354 F.3d 1192, 1194 (10th Cir. 2003).
“‘[W]e review the BIA’s decision on a motion to reopen [only] for an abuse of
discretion. The BIA abuses its discretion when its decision provides no rational
explanation, inexplicably departs from established policies, is devoid of any
reasoning, or contains only summary or conclusory statements.’” Id. (quoting
Mickeviciute v. INS , 327 F.3d 1159, 1162 (10th Cir. 2003)).
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A. In absentia removal proceedings
“It is well-settled that if ‘an alien is provided proper written notice of
a removal hearing and fails to attend, the immigration judge is required to enter
an in absentia order of removal.’” Valencia-Fragoso v. INS , 321 F.3d 1204, 1206
(9th Cir. 2003) (quoting Salta v. INS , 314 F.3d 1076, 1078 (9th Cir. 2002));
8 U.S.C. § 1229a(b)(5)(A). For purposes of in absentia proceedings, notice is
adequate if provided at the alien’s contact address, with the requisite information
about the nature of proceedings, the charges against the alien, the right to be
represented by counsel, the time and place of the proceedings, and the
consequences of a failure to appear. § 1229(a)(1), (2). No notice is necessary if
the alien fails to provide an updated, written record of the address at which he
may be contacted about removal proceedings. §§ 1229a(b)(5)(B), 1229(a)(1)(F).
“Service by mail” is “sufficient if there is proof of attempted delivery to the last
address provided by the alien.” § 1229(c). 3 In sum, the INS does not have to
prove actual receipt of notice before holding an in absentia proceeding.
Further, notice that meets statutory requirements also fulfills the
due-process protections accorded to aliens in exclusion proceedings. Notice of
3
Prior to the implementation of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), the notice of hearing had to be
sent by certified, return receipt mail. See 8 U.S.C. § 1252b(a)(2)(A) (1996).
Under IIRIRA, notice may now be sent by regular mail. 8 U.S.C. § 1229(a)(1).
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a proceeding satisfies due process if it is “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.” Mullane v. Cent.
Hanover Bank & Trust Co ., 339 U.S. 306, 314 (1950).
In an immigration setting, due process requires only that service must be
“conducted in a manner reasonably calculated to ensure that notice reaches the
alien.” Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997) (quotation omitted);
see also Anin v. Reno , 188 F.3d 1273, 1277-78 (11th Cir. 1999). Notice of an
exclusion hearing sent by regular mail to the last address provided by the alien
satisfies the requirements of constitutional due process. See Dominguez v. United
States Attorney Gen. , 284 F.3d 1258, 1259-60 (11th Cir. 2002) (holding that an
alien’s due process rights were not violated when the INS sent a notice of
a removal hearing by regular mail to an address that the alien had provided
several years earlier); Fuentes-Argueta v. INS , 101 F.3d 867, 872 (2d Cir. 1996)
(per curiam) (finding no per se due process violation where notice of deportation
proceedings was returned unclaimed); United States v. Estrada-Trochez , 66 F.3d
733, 735-36 & n.1 (5th Cir. 1995) (due process satisfied where notice of
deportation hearing, sent to alien by first-class mail, was returned because alien
had moved without providing forwarding address).
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A notice to appear is sufficient, both for due process and statutory
purposes, if it is sent by regular mail to an alien’s contact address of record.
Such a procedure is consistent with the statute and is reasonably calculated to
provide notice. Here, the INS sent Mr. Gurung notice in a form and manner that
complied with the immigration statutes and the Constitution.
B. Motion to reopen
Even if notice to the alien is constitutionally and statutorily sufficient, the
statutory framework provides for rescission of an in absentia removal order “upon
a motion to reopen filed at any time if the alien demonstrates that the alien did not
receive notice.” 8 U.S.C. § 1229a(b)(5)(C)(ii). Considerations on a motion to
reopen differ from those relevant to the holding of an in absentia hearing.
A motion to reopen focuses on whether the alien actually received notice, rather
than on whether the INS sent sufficient notice to the proper address. The
Supreme Court has stated, however, that motions to reopen are particularly
disfavored in immigration matters where, “as a general matter, every delay works
to the advantage of the [removable] alien who wishes merely to remain in the
United States.” INS v. Doherty , 502 U.S. 314, 323 (1992).
The burden of demonstrating the claimed lack of notice is on the alien.
§ 1229a(b)(5)(C)(ii). The burden is not a light one, because the alien must
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overcome the presumption of due receipt raised by the evidence of mailing
presented at the in absentia hearing. See Moya v. United States , 35 F.3d 501, 504
(10th Cir. 1994) (stating that the “law presumes delivery of a properly addressed
piece of mail”). To rebut the presumption, the alien must support a motion to
reopen with affidavits or other evidentiary materials. 8 U.S.C. § 1229a(c)(6)(B);
8 C.F.R. § 208.2(c)(3)(ii)(A).
A petitioner who fails to submit documentary evidence in support of his
motion to reopen, and instead merely alleges that he had not received proper
notice, does not “demonstrate lack of notice, as the statute requires.” Giday v.
INS, 113 F.3d 230, 233 (D.C. Cir. 1997) (quotation omitted). A petitioner must
present “substantial and probative evidence . . . demonstrating that there was
improper delivery or that nondelivery was not due to the respondent’s failure to
provide an address where he could receive mail.’” Fuentes-Argueta , 101 F.3d
at 871 (per curiam) (quoting In re Grijalva , I. & N. Dec. 27, 37 (B.I.A. 1995)).
Although both Giday and Fuentes-Argueta involved certified mail, the principles
they espouse regarding the alien’s burden to refute the presumption of notice
apply also to notice by regular mail, which similarly carries a presumption of
receipt upon a showing that the notice was properly mailed to the authorized
address.
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Here, Mr. Gurung has failed to show an abuse of discretion in the denial of
his motion to reopen. First, his mere conclusory statement that he did not receive
notice is insufficient to carry his burden of proof, in light of the presumption to
the contrary. Second, his statement is not in proper affidavit form for receipt as
evidence and is not sufficiently detailed to provide a reasoned explanation why he
did not receive notice mailed to the address he provided.
Furthermore, the IJ and BIA observed that Mr. Gurung did receive a
subsequent notice mailed to the same address, and that his motion was apparently
mailed from that address. This evidence provides further support for the
conclusion that he did receive sufficient notice mailed to his contact address of
record. The BIA’s order provided a rational explanation supported by the
evidence and presumptions in the record. Therefore, we are precluded from
finding that the BIA abused its discretion in denying the motion to reopen.
III.
Petitioner also contends that the notice of hearing was ineffective because
the certificate of service showed a name stamp, rather than a handwritten
signature. This issue stems from an argument raised by counsel in the appeal
brief to the BIA. Counsel asserted that, in the absence of specific authorization,
a stamp may not be used in place of a signature. For this proposition, counsel
relied on In re Chaplain Services, Inc. , 21 I. & N. Dec. 578 (B.I.A. 1996),
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an administrative decision denying an attorney’s request for recognition as
a representative. In that case, the INS disapproved of the attorney’s admitted
practice of allowing her name to be stamped on a G-28 (a notice for entry of
appearance) without seeing or interviewing the applicant. Id. at 579. Counsel’s
BIA brief in this case also seeks support in Newton v. Buckley , No. 96-4202,
1997 WL 642085 (10th Cir. Oct. 17, 1997). That unpublished case held simply
that a Utah state court clerk could not be held liable for failing to follow proper
procedures in stamping a criminal information with the judge’s signature.
Id. at **4.
Neither of the cited cases supports petitioner’s claim that a stamped
certificate of service of a notice of hearing is invalid. Petitioner’s argument
parallels that of the plaintiff in Biegeleisen v. Ross, 158 F.3d 59 (2d Cir. 1998).
There, the plaintiff asserted that “the use of a signature stamp rather than an
original signature on an IRS notice of levy violated his constitutional right to
due process of law.” Id. at 59-60. The Second Circuit observed that other
circuits “have held in other contexts that signature stamps in lieu of original
signatures on official government documents do not render the documents
invalid.” Id. (citing United States v. Victoria-Peguero , 920 F.2d 77, 83 (1st Cir.
1990) (customs document); United States v. Juarez , 549 F.2d 1113, 1114-15 (7th
Cir. 1977) (magistrate’s signature stamp on a search warrant)). The court held
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that “no statute or regulation prohibits the use of signature stamps by federal
agencies generally.” Id. ; see also United States v. Daccarett , 6 F.3d 37, 52-53
(2d Cir. 1993) (finding no error in concluding that a “rubber-stamped signature”
did not render a DEA subpoena invalid). Petitioner has provided no reason for
this court to view the issue differently. Petitioner’s argument against the use of
a signature stamp is unavailing.
IV.
For the foregoing reasons, we conclude that the BIA did not abuse its
discretion in denying Mr. Gurung’s motion to reopen and therefore we AFFIRM.
Petitioner’s motion for leave to appeal in forma pauperis is GRANTED.
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