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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