Arrieta v. I.N.S., 95-70852

• Decision Date: 29 July 1996
• Docket Number: No. 95-70852,95-70852
• Citation: 117 F.3d 429
• Parties: 97 Cal. Daily Op. Serv. 5294, 97 Daily Journal D.A.R. 8619 Carolina ARRIETA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 429

117 F.3d 429

97 Cal. Daily Op. Serv. 5294, 97 Daily Journal

D.A.R. 8619

Carolina ARRIETA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 95-70852.

United States Court of Appeals Ninth Circuit.

Submitted July 29, 1996. ^*

Decided July 3, 1997.

Carolina Arrieta, Los Angeles, CA, pro se petitioner.

Tina Potuto, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for respondent.

Petition for Review of an Order of the Board of Immigration Appeals; INS No. A29-570-018.

Before: HUG, Chief Judge, and SCHROEDER and TASHIMA, Circuit Judges.

PER CURIAM:

Carolina Arrieta, a native and citizen of the Philippines, petitions pro se for review of the decision of the Board of Immigration Appeals ("BIA"), dismissing her appeal from the Immigration Judge's ("IJ") denial of her motion to reopen deportation proceedings. The IJ entered an order of deportation in absentia when Arrieta failed to appear at the scheduled deportation hearing. We have jurisdiction pursuant to 8 U.S.C. § 1105a, and we grant the petition for review.

Arrieta contends that she failed to appear for her deportation hearing because she never received notice of the deportation hearing as required by section 242B of the Immigration and Nationality Act ("the Act" or "INA"), 8 U.S.C. § 1252b(a)(2). As the BIA indicated in its decision, the IJ ordered Arrieta deported after an in absentia hearing because notice of the deportation hearing was sent to Arrieta by certified mail to her last known address. The hearing notice was returned to the Office of the Immigration Judge with an indication that delivery was "attempted." The BIA concluded that Arrieta failed to report a change of address to the immigration court, and that the hearing notice sent by certified mail to her last known address was sufficient to establish that she received written notice of the deportation hearing as required by section 242B of the INA. Arrieta contends, however, that although she had changed her residence, she continued to receive mail at the address she had provided.

I

We review de novo the BIA's "determination of purely legal questions regarding the requirements of the Immigration and Nationality Act." Tedeeva v. INS, 88 F.3d 826, 827 (9th Cir.1996); citing Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). We will defer to the BIA's interpretation of the Act when appropriate under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Tedeeva, 88 F.3d at 827. The denial of a motion to reopen is subject to an abuse of discretion standard of review. Hernandez-Vivas v. INS, 23 F.3d 1557, 1561 (9th Cir.1994).

Section 242B of the Act provides that "[w]ritten notice [of deportation proceedings under the section] shall be given in person to the alien (or, if personal service is not practicable, written notice shall be given by certified mail to the alien ... )...." 8 U.S.C. § 1252b(a)(2)(A). This written notice "shall be considered sufficient for purposes of this paragraph if provided at the most recent address provided [by the alien]...." 8 U.S.C. § 1252b(c)(1). "Any alien who, after [the] written notice required ... has been provided ... does not attend a proceeding ... shall be ordered deported ... in absentia if the [INS] establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is deportable." Id. Section 242B was added to the Act in 1990 in part to address the failure of aliens to appear at deportation hearings. See H.R. Conf. Rep. No. 955, 101st Cong., 2d Sess. 132 (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6787; see also H.R.Rep. No. 681(I), 101st Cong., 2d Sess. 150-51 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6556-57.

The BIA has held that certified mail of notice of deportation proceedings which is sent to an alien's last known address provides sufficient notice under Section 242B, and that there is no requirement that the certified mail receipt be signed by the alien or a responsible person at his address in order to effect service. In re Grijalva, Int. Dec. 3246 (BIA Apr. 28, 1995); see also Tedeeva, supra, 88 F.3d at 827 (concluding in person notice of deportation hearings is not required under the Act). The BIA further held in Grijalva that "where service of a notice of deportation proceeding is sent by certified mail through the United States Postal Service and there is proof of attempted delivery and notification of certified mail, a strong presumption of effective service arises." Id. The BIA also stated, however, that the "presumption of effective service may be overcome by the affirmative defense of nondelivery or improper delivery by the Postal Service" based on substantial and probative evidence presented by the alien. Id.

Here, the notice of the deportation hearing was sent to Arrieta's last known address in San Diego, and, as noted above, returned "attempted." The IJ ordered Arrieta deported in absentia, and later denied her motion to reopen on the basis that she had changed her address without notifying the INS. Arrieta argued before the BIA, as here, that she did not change her mailing address, merely her residence. Arrieta stated she continued to receive mail from the INS and others at her brother's San Diego address, including the IJ's deportation order and the order denying her motion to reopen. In support, Arrieta proffered her letter and a letter from her brother stating that the certified mail notice was never delivered to the San Diego address.

Following Grijalva, the BIA applied the presumption of effective delivery and concluded that the INS had established that the certified mail notice sent to Arrieta (but not received by anyone) nonetheless established clear, unequivocal and convincing evidence of the attempt...