Maknojiya v. Gonzales, 04-60361 Summary Calendar.

• Decision Date: 01 December 2005
• Docket Number: No. 04-60361 Summary Calendar.,04-60361 Summary Calendar.
• Citation: 432 F.3d 588
• Parties: Rahim MAKNOJIYA, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 588

432 F.3d 588

Rahim MAKNOJIYA, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.

No. 04-60361 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

December 1, 2005.

Imran B. Mirza, Houston, TX, for Petitioner.

Regina Byrd, David V. Bernal, Thomas Ward Hussey, Dir., U.S. Dept. of Justice, Civ. Div., Office of Imm. Lit., Alberto R. Gonzales, U.S. Dept. of Justice, Washington, DC, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, Sharon A. Hudson, U.S. Citizenship & Imm. Services, Houston, TX, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:

Rahim Maknojiya petitions this court for review of the Board of Immigration Appeals' ("BIA") decision denying his appeal from a decision of the Immigration Judge ("IJ") that denied his motion to reopen proceedings and to rescind the order of removal that was entered against him in absentia.

Maknojiya argues here, as he did before the IJ and the BIA, that he did not receive notice of the hearing date and that the IJ's decision denying his motion to reopen was an abuse of discretion.

This court reviews a denial of a motion to reopen under a "highly deferential abuse-of-discretion standard." Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.2005). An alien who does not attend a hearing after written notice has been provided to the alien or the alien's counsel of record shall be ordered removed in absentia if the INS establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable. 8 U.S.C. § 1229a(a)(5). However, an in absentia removal order may be rescinded upon a motion to reopen filed at any time if it can be demonstrated that the alien did not receive notice. 8 U.S.C. § 1229a(a)(5)(C)(ii); 8 U.S.C. § 1229(a)(1) and (2).

Maknojiya concedes that he and his counsel received notice that the hearing was set for March 11, 2003. The March 11, 2003, hearing notice is in the administrative record. However, the record also contains a hearing notice that reset the March 11, 2003, hearing for the earlier date of February 13, 2003. The February 13, 2003, hearing notice is dated after the March 11, 2003, hearing notice. Both hearing notices contain Maknojiya's attorney's name and address, and the notices indicate that they were sent through regular mail. Postal receipts are not included in the administrative record, nor is there a copy of an addressed envelope. Maknojiya asserts that neither he nor his attorney received the hearing notice that reset the March 11, 2003, hearing to February 13, 2003. Maknojiya asserts that when he appeared for the hearing on March 11, 2003, he was advised that a removal order had been entered against him in absentia. Although the IJ's decision had been forwarded to his counsel, Maknijoya states that his counsel was out of town and did not receive the IJ's decision. Both Maknijoya and his counsel submitted affidavits to the IJ with the motion to reopen that support Maknijoya's assertions. Maknijoya also argues, as he did before the BIA and the IJ, that he intended to apply for cancellation of removal based upon his years of residence in the United States and because his child, a United States citizen, has been diagnosed with leukemia and would suffer hardship if he is removed from the United States.

The IJ's decision denying Maknojiya's motion to reopen is premised upon a presumption that public officials, including Postal Service employees, properly discharge their duties. The IJ relied upon Matter of Grijalva, 21 I & N Dec. 27 (BIA 1995), for this presumption. As the respondent concedes, the IJ erroneously relied upon Grijalva for this presumption in Maknojiya's case, because the presumption of effective service set forth in Grijalva applies when the notice is sent by certified mail through the United States Postal Service and there is proof of attempted delivery and notification of certified mail. Then, a strong presumption of effective service arises that may be overcome only by the...