Kozak v. Gonzales

United States Court of Appeals
For the First Circuit

No. 07-1169

VLADIMIR KOZAK,

Petitioner,

v.

ALBERTO GONZÁLES,
UNITED STATES ATTORNEY GENERAL,

Respondent.

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

Before

Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Lipez, Circuit Judge.

Stanley H. Cooper, on brief for petitioner.
Richard Zanfardino, Trial Attorney, U.S. Department of
Justice, Office of Immigration Litigation, Peter D. Keisler,
Assistant Attorney General, Civil Division, and Terri J. Scadron,
Assistant Director, Office of Immigration Litigation, on brief for
respondent.

September 14, 2007
 TORRUELLA, Circuit Judge. Vladimir Kozak did not appear

at his immigration hearing on July 5, 2006. Consequently, an

Immigration Judge ("IJ") entered an order of removal against him in

absentia. Kozak, who was later detained, filed a motion to reopen

his immigration proceedings on the ground that he did not receive

notice of the July 7 hearing. The IJ denied the motion to reopen,

and the Board of Immigration Appeals ("BIA") affirmed. After

careful consideration, we remand to the BIA for further

consideration of Kozak's motion.

I. Background

Kozak, a Russian national, was admitted to this country

in 1992 as a refugee. However, after convictions for two crimes of

domestic violence, Kozak was subject to removal pursuant to 8

U.S.C. § 1227(a)(2)(E)(i) ("Any alien who at any time after

admission is convicted of a crime of domestic violence . . . is

deportable."). On July 7, 2005, Immigration and Customs

Enforcement ("ICE") personally served Kozak with a Notice to

Appear. The Notice to Appear did not set a date for Kozak's

hearing, but rather ordered him to appear "on a date to be set[,]

at a time to be set." On January 20, 2006, ICE sent Kozak a notice

stating that his hearing was set for July 5, 2006, at 9:30 A.M.

Rather than personally serving Kozak with this notice, ICE elected

to send it to him by regular mail. Kozak claims that he did not

receive the notice at his residence, and that as a result, he never

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appeared for the hearing. Because Kozak failed to appear, and

because ICE presented evidence that Kozak was subject to removal,

the IJ entered an in absentia order of removal against him on

July 7, 2006.

ICE agents detained Kozak two months later, on

September 1, 2006. On September 13, 2006, Kozak filed a motion to

reopen his immigration proceedings, asserting that he never

received notice of his hearing date. The IJ denied Kozak's motion

on October 23, 2006 by written order stating that Kozak failed to

allege any new facts that would merit the reopening of his

immigration proceedings, see 8 C.F.R. § 1003.23(b)(3) ("A motion to

reopen will not be granted unless the Immigration Judge is

satisfied that evidence sought to be offered is material and was

not available and could not have been discovered or presented at

the former hearing."), and that in any case, the hearing notice had

been mailed in accordance with ICE regulations, see id. § 1003.13.

Kozak appealed the IJ's decision to the BIA, which affirmed in a

per curiam order stating, in part, "[w]e agree with the [IJ] that

respondent failed to present 'substantial and probative evidence'

sufficient to overcome the presumption of proper delivery." Kozak

now petitions for review of the BIA's decision to deny his motion

to reopen.

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 II. Discussion

We start, as is customary, with the standard of review.

"This court normally reviews decisions of the BIA rather than those

of an IJ." Stroni v. Gonzáles, 454 F.3d 82, 86 (1st Cir. 2006).

We examine the BIA's legal conclusions de novo, subject to

principles of administrative deference. De Massenet v. Gonzáles,

485 F.3d 661, 663 (1st Cir. 2007). We then review the BIA's

ultimate decision to deny a motion to reopen for abuse of

discretion. Id.

An alien who fails to appear for an immigration hearing

is subject to having an order of removal entered against him in

absentia. 8 U.S.C. § 1229a(b)(5)(A). However, if the alien can

later prove that he did not receive notice of the hearing, he may

ask for the immigration proceedings to be reopened. Id. § 1229a

(b)(5)(C)(ii). In the instant case, Kozak claims that because he

did not receive notice of his hearing, he is entitled to have his

proceedings reopened. The BIA found that Kozak failed to present

"substantial and probative evidence" sufficient to overcome the

presumption of proper delivery, citing In re Grijalva, 21 I. & N.

Dec. 27 (B.I.A. 1995), and rejected his claim.

Prior to the enactment of the Illegal Immigration Reform

and Immigrant Responsibility Act ("IIRIRA"), Pub. L. No. 104-208,

110 Stat. 3009 et seq. (1996), it was somewhat easier to determine

whether or not an alien had received notice of a hearing because

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the version of the Immigration and Nationality Act ("INA") then in

effect required that notices be served in person or sent by

certified mail. See 8 U.S.C. § 1252b(a)(1) (1995). Thus, as

Grijalva makes clear, receipt (or constructive receipt) could

easily be proven by a return receipt signed by the alien or by

postal service records indicating attempts to deliver the notice to

the alien's address. 21 I. & N. Dec. at 35-36. Accordingly, an

alien who wanted to prove non-receipt had to overcome a "strong

presumption" that service by certified mail was effective by

"present[ing] substantial and probative evidence such as

documentary evidence from the Postal Service, third party

affidavits, or other similar evidence demonstrating that there was

improper delivery or that non-delivery was not due to the

respondent's failure to provide an address where he could receive

mail." Id. at 37.

In 1997, however, the IIRIRA amended the INA so as to

permit federal authorities to serve notices of hearing by regular,

rather than certified, mail. 110 Stat. 3009-588; see also 8 U.S.C.

§ 1229(a)(1) (2007) ("In removal proceedings . . . written notice

. . . shall be given . . . through service by mail to the alien .

. . ."). While this may have changed the manner in which federal

authorities could provide notice of a hearing to an alien, it did

not purport to amend 8 U.S.C. § 1229a(b)(5)(C)(ii). As such, the

focus of our analysis continues to be on whether the alien

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"received" the notice, rather than whether the ICE provided it.

See, e.g., Lopes v. Gonzáles, 468 F.3d 81, 84 (2d Cir. 2006) ("As

the use of the word 'receive' establishes, when considering the

motion to reopen, the central issue no longer is whether the notice

was properly mailed (as it is for the purpose of initially entering

the in absentia order), but rather whether the alien actually

received the notice."); Hussain v. Gonzáles, 207 F. App'x. 687, 689

(7th Cir. 2006) ("The relevant question in deciding a motion to

reopen is not notice but receipt . . . .") (unpublished

disposition).

With this in mind, we find that the use of regular mail

renders the standard in Grijalva unworkable. As the Fourth Circuit

has noted, "[t]he type of rebuttal evidence required by Grijalva,

such as documentary evidence from the Postal Service, simply does

not exist '[i]n the common case of failed delivery through regular

mail.'" Nibagwire v. Gonzáles, 450 F.3d 153, 157 (4th Cir. 2006)

(second alteration in original) (quoting Ghounem v. Ashcroft, 378

F.3d 740, 744 (8th Cir. 2004)).1 It would be inconsistent with the

INA to require an alien to prove non-receipt with evidence that is

unobtainable in the ordinary course.

1
For this reason, we do not find Gurung v. Ashcroft, 371 F.3d
718, 721-22 (10th Cir. 2004) ("[A] mere conclusory statement that
[an alien] did not receive notice is insufficient to carry his
burden of proof."), persuasive. Gurung relied on the standard from
Grijalva, which as we have explained, is not appropriate for cases
involving service by regular mail.

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 We leave it to the BIA to come up with a new standard to

be applied to aliens who claim non-receipt of notices sent by

regular mail. Although most mail reaches its intended destination,

it is commonsensical that at least some does not. Joshi v.

Ashcroft, 389 F.3d 732, 735 (7th Cir. 2004) ("Most letters are

delivered, but some aren't . . . ."). In some cases, there may be

evidence corroborating non-receipt of a notice, such as when a

person other than the alien is also an intended recipient and

submits an affidavit of non-receipt, see, e.g., Maknojiya v.

Gonzáles, 432 F.3d 588, 589 (5th Cir. 2005) (noting that claim of

non-receipt was corroborated by the fact that alien's counsel also

failed to receive hearing notice), or when a particularly diligent

alien inquires as to when his hearing might be scheduled, see,

e.g., Joshi, 389 F.3d at 736 (noting that claim of non-receipt was

corroborated by the fact that alien had called to inquire about

status). However, in other cases, an alien may be the only person

who is aware that his hearing notice did not arrive. In such a

case, the only direct evidence of non-receipt may be an affidavit,

signed and sworn by the alien, stating that he did not receive the

notice.

This is not to say that every alien who presents an

affidavit of non-receipt should be entitled to have his immigration

proceedings reopened. As the Government points out, "a bare,

uncorroborated, self-serving denial of receipt, even if sworn, is

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weak evidence." Id. at 735. Certainly the BIA is entitled to

"tak[e] account of all relevant evidence" surrounding the purported

non-receipt. Lopes, 468 F.3d at 86 (holding that the BIA should

have considered a variety of factors in determining the credibility

of an affidavit alleging non-receipt).

However, we decline to adopt the Government's position in

this case that we should presume that every notice sent by regular

mail has been received by the recipient absent an extraordinary

evidentiary showing such as the one required by Grijalva. The

Government suggests that its position is supported by our decision

in Sousa v. Ashcroft, 393 F.3d 271 (1st Cir. 2005). In that case,

a non-resident alien claimed that he did not receive a notice to

appear, and asked for his immigration proceedings to be reopened.

Id. at 275. We rejected his appeal, noting that the BIA had

properly determined that the alien had not submitted sufficient

evidence to prove non-receipt. Id.

A number of significant differences make Sousa inapposite

here. First, Kozak has submitted a sworn affidavit that he did not

receive his hearing notice; in Sousa, the alien "gave no evidence

at all to support his claim" at his first motion to reopen. Id.

Moreover, in Sousa, the alien's claim was that the then-INS had

sent his notice to appear to an old address. Id. We noted that

the alien "had an affirmative duty to update his address with the

INS should he move, a duty he admittedly did not fulfill." Id.

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Here, there is no argument that the ICE improperly addressed the

hearing notice, but rather that although properly addressed, the

notice was never received at all. Kozak was under no obligation to

inquire with the Postal Service as to whether it had misplaced any

of his letters.

The Government also contends that its position is

supported by In re G-Y-R-, 23 I. & N. Dec. 181 (B.I.A. 2001). In

that case, the BIA made perfectly clear that "the notice

requirement leading to an in absentia order cannot be satisfied by

mailing the Notice to Appear to the last known address of the alien

when the alien does not receive the mailing." Id. at 189. The

Government suggests that we focus on another passage, namely, that

"[a]n alien can, in certain circumstances, be properly charged with

receiving notice, even though he or she did not personally see the

mailed document." Id. However, In re G-Y-R- clearly indicates

that this exception applies only to circumstances such as when "the

Notice to Appear reaches the correct address but does not reach the

alien through some failure in the internal workings of the

household." Id. This does not appear to be the case here; neither

Kozak nor the Government alleges that some household breakdown

caused the loss of the notice at issue. Again, Kozak alleges that

the hearing notice did not reach the correct address on file with

the ICE.

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 Ultimately, it is enough that the BIA applied an

inappropriate legal standard in determining whether or not Kozak

had received his hearing notice. As the Second Circuit noted in

Lopes, "although an affidavit of non-receipt might be insufficient

by itself to rebut the presumption [of receipt], it does raise a

factual issue that the BIA must resolve." 486 F.3d at 85-86.

Here, the opinion of the BIA and the IJ clearly indicate that they

disregarded Kozak's affidavit because it was not accompanied by the

"substantial and probative evidence" referred to in Grijalva.

Because we hold that the standard enunciated in Grijalva cannot be

applied to notices sent by regular mail, we find that the BIA

abused its discretion in denying Kozak's motion to reopen, and we

remand for further consideration.

III. Conclusion

For the foregoing reasons, we grant Kozak's petition for

review, vacate the BIA's order, and remand to the BIA for further

proceedings consistent with this opinion.

Petition granted.

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