Hossain v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-2591

MOHAMMED MOZAMMEL HOSSAIN,

Petitioner,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

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

Before

Selya, Lynch, and Lipez,
Circuit Judges.

John Traficonte on brief for petitioner.

Luis E. Perez, Attorney, Office of Immigration Litigation,
Civil Division, Peter D. Keisler, Assistant Attorney General, Civil
Division, and Linda S. Wendtland, Assistant Director, on brief for
respondent.

August 19, 2004
 LYNCH, Circuit Judge. Petitioner Mohammed Mozammel

Hossain is a native and citizen of Bangladesh who attempted to

enter the United States through Newark airport on October 9, 1991.

Exclusion proceedings were brought against him on that date, and he

in turn sought asylum and withholding of deportation. After a long

series of hearings, both forms of relief were denied by an

Immigration Judge (IJ) on May 8, 1998.

Hossain filed a timely appeal from these decisions with

the Board of Immigration Appeals (BIA) on June 5, 1998, and his

attorney requested an opportunity to file a brief on his behalf.

The BIA mailed the briefing schedule to the wrong address, and

Hossain's counsel says as a result he never filed such a brief.

The BIA affirmed the IJ's decision without opinion on January 17,

2003, pursuant to 8 C.F.R. § 1003.1(e)(4), although it had no brief

from Hossain. Hossain never petitioned for review of that decision

to this court. Instead, he filed a motion for reconsideration with

the BIA on the ground that he was never given a proper opportunity

to have his case briefed, and seeking leave to file the brief.

This motion was denied by the BIA on October 24, 2003; Hossain now

petitions for review of that denial in this court. We vacate the

BIA's denial of the motion for reconsideration and remand to the

BIA.

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 I.

Hossain's hearings before the IJ began in 1991; a final

decision was rendered only in 1998. Hossain's claim was based on

past persecution, including arrests and torture, that he claimed to

have suffered as a member of the student wing of an opposition

political party in Bangladesh. Hossain further claimed that there

was an outstanding warrant for his arrest on charges that he

stabbed a fellow student during a riot in May 1991; he claimed that

the stabbing was in self-defense but that he would not receive a

fair trial, and would be likely to face violent extra-judicial

retaliation, because of political persecution. The IJ denied

Hossain's applications for asylum and withholding of deportation,

emphasizing Hossain's "inconsistent testimony" and inadequate

documentation for his claims.

Hossain's notice of appeal to the BIA listed sixteen

grounds for overturning the IJ's opinion, all of which were fairly

broad and unspecific. As noted in Hossain's notice of appeal to

the BIA, a copy of the voluminous transcript of the many hearings

held by the IJ had not yet been prepared for Hossain and his

counsel, and Hossain "demand[ed] the right to file a brief" in

order to "identify specific factual and legal issues" involved in

the case.

On the required Entry of Appearance as Attorney or

Representative form sent to the BIA along with the Notice of

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Appeal, Hossain's attorney, John Traficonte, listed as his complete

address:

Cabot Corporation
75 State Street
Boston, MA 02109

On January 25, 1999, the BIA sent a briefing schedule, along with

a transcript of the IJ's hearings, to the following address, with

the company name omitted:

John Traficonte
75 State Street
Boston, MA 02109

Hossain's lawyer states that because of the faulty address and

because there are many tenants in the 75 State Street skyscraper,

he never received the briefing schedule (nor the transcript) that

was sent. The government on this appeal does not dispute his

assertion. As a result of not receiving that schedule, Traficonte

said, he never filed a brief with the BIA, even though the BIA did

not reach a decision until January 17, 2003, nearly four years

after the briefing schedule was mis-mailed.1

Hossain's motion for reconsideration was based solely on

his lawyer's failure to have received a briefing schedule and his

attorney's consequent failure to have filed a brief. The Justice

1
The same basic bureaucratic mistake had occurred much earlier
in this case, in 1993. A hearing date before the IJ was
erroneously mailed without the "Cabot Corporation" piece of the
address, and was never delivered to Hossain's lawyer. Hossain thus
did not appear at the specified hearing date, and the judge held
the asylum claim abandoned. However, after an explanation was
given, the IJ reopened the proceedings.

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Department did not oppose the motion. The BIA rejected this motion

on October 24, 2003, stating both that in its opinion the briefing

schedule (and transcript) were sent to the "correct address," and

that Hossain's motion "fail[ed] to present any significant new

evidence, specify any errors of fact or law, or include a brief

that would justify granting relief or remanding." The BIA decision

cited to Matter of Lei, 22 I&N Dec. 113 (BIA 1998), regarding the

presumption of notice based on regularity of the mail.

II.

We review BIA decisions on motions to reconsider only for

abuse of discretion. INS v. Doherty, 502 U.S. 314, 323-24 (1992).

The BIA erred by not sending a briefing schedule and

transcript to the proper address. See 8 C.F.R. § 1003.3(c)(1)

(noting alien's right to file a brief with the BIA and stating that

in transcribed cases, "briefing schedule shall be set by the Board

after the transcript is available"). The government now admits

that the wrong address was used. Hossain's attorney clearly

entered his full address on the Entry of Appearance form, and yet

the BIA sent the transcript and briefing schedule to an incomplete

and therefore erroneous address. Thus, the first ground offered by

the BIA -- that the information was sent to the correct address --

cannot stand. Further, the citation by the BIA to Matter of Lei

demonstrates that the BIA misunderstood the nature of the claim.

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The doctrine of regularity of the mail presumes the address used is

the correct one.

The mailing error constituted the type of error of law

which is the proper subject of a motion for reconsideration. 8

C.F.R. § 1003.2(b)(1); see also Zhang v. INS, 348 F.3d 289, 293

(1st Cir. 2003) ("The purpose of a motion to reconsider [as opposed

to a motion to reopen] is...to demonstrate that the BIA erred as a

matter of law or fact.").

The government argues that despite the BIA's mailing

error and violation of the BIA rules, its decision ought to be

affirmed because there is no denial of due process as Hossain has

been unable to show that he suffered any prejudice from the error.2

We agree that a due process claim cannot succeed if there is no

prejudice; without prejudice, any error that occurred would be

harmless. See Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir.

1999) ("[T]he applicant claiming a denial of due process must

generally show prejudice.").

Prejudice could easily (but not inevitably) be found in

a case where an alien's appeal was dismissed merely because of his

failure to file a brief. See, e.g., Amarjit Singh v. Ashcroft, 367

F.3d 1182, 1189 (9th Cir. 2004) (presuming prejudice where alien's

2
Because the government filed no opposition to Hossain's
motion for reconsideration before the BIA, the argument about
prejudice has been raised by the government for the first time
before this court.

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claim was summarily dismissed because his lawyer did not file a

brief). That is not our case. The BIA appears to have at least

nominally considered Hossain's case on the merits despite the

absence of a brief from him.

Here, the IJ's rulings hinged largely on Hossain's

alleged lack of credibility, and the BIA overturns an IJ's

credibility findings, like other findings of fact, only if they are

clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i). From that lack of

credibility determination, it might be supposed there could be no

prejudice. Still, a brief to the BIA might have shown that the

IJ's credibility ruling lacked support in the record or did not

have a rational explanation. See Malkit Singh v. Ashcroft, 362

F.3d 1164, 1168 (9th Cir. 2004). As well, the brief could have

provided more specificity to the claims broadly asserted in the

notice of appeal to the BIA.

The government's lack of prejudice argument founders on

the point that Hossain never had a chance to show prejudice due to

the BIA's own error.3 Because of the BIA's mailing error,

3
Hossain's counsel, who represents him pro bono, shares some
responsibility for this imbroglio. He let the matter lie for over
four years without making any inquiry to the BIA. He says that
because the series of hearings before the IJ took place over
several years, he understood it would take some time for the record
to be assembled and a briefing schedule set. It appears that it
took from June 15, 1998 to January 25, 1999 to assemble the record
and for the BIA to set a briefing schedule, a great deal less than
four years.

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Hossain's counsel still had not received a copy of the hearing

transcript when he filed the motion for reconsideration. Like the

court in Singh, "[w]e are at a loss as to how" an alien could make

arguments on the merits of his case, for example "clarifying the

testimony that the IJ deemed inconsistent[,] without having access

to the transcript of that very testimony." Malkit Singh, 362 F.3d

at 1169. Basic fairness requires that Hossain, now that he

apparently has a copy of the transcript, be given the opportunity

to argue in a renewed motion for reconsideration that he was

prejudiced by his inability to file a brief with the BIA. The BIA

is free to decide whether Hossain was prejudiced by his inability

to file a brief or otherwise should be permitted reconsideration.

III.

The order of the BIA on the motion for reconsideration is

vacated, and the case is remanded to the BIA. So ordered.

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