Mejia–hernandez v. Holder

• Decision Date: 27 January 2011
• Docket Number: No. 07–74277.,07–74277.
• Citation: 633 F.3d 818
• Parties: Bernardino Eduardo MEJIA–HERNANDEZ, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

633 F.3d 818

11 Cal. Daily Op. Serv. 1230

2011 Daily Journal D.A.R. 1543

Bernardino Eduardo MEJIA–HERNANDEZ, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 07–74277.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 3, 2010.Filed Jan. 27, 2011.

Andrew Knapp and Claire Cifuentes, Cifuentes Knapp & Associates, Los Angeles, CA, for the petitioner.Glen T. Jager, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for respondent.Mary Kenney, American Immigration Council, Washington, D.C., for the amicus.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A070–957–121.Before: ALFRED T. GOODWIN and JOHNNIE B. RAWLINSON, Circuit Judges, and JACK ZOUHARY, District Judge.^*Opinion by Judge GOODWIN; Partial Concurrence and Partial Dissent by Judge ZOUHARY.

OPINION

GOODWIN, Circuit Judge:

In view of a number of pending immigration cases calling into question the continued vitality of Ekimian v. INS, 303 F.3d 1153 (9th Cir.2002), we must decide whether we can review a BIA decision against reopening in the context of a claim of equitable tolling. We affirm the BIA decision regarding notice. We do not review the sua sponte reopening. We reverse the BIA decision on equitable tolling, and remand to the agency for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Bernardino Eduardo Mejia–Hernandez, a citizen of Guatemala, petitions for review of a Board of Immigration Appeals (“BIA”) decision vacating an Immigration Judge's (“IJ”) suspension of deportation and reinstating an order of deportation. The BIA found that Mejia received effective notice of his original merits hearing, was not entitled to the sua sponte reopening granted by the IJ, and was not entitled to equitable tolling of the deadline for a motion to reopen under the Nicaraguan Adjustment and Central American Relief Act (NACARA) § 203(c). Pub.L. No. 105–100, 111 Stat. 2160 (1997), amended by Pub.L. No. 105–139, 111 Stat. 2644 (1997).

Petitioner entered the United States on February 20, 1993. On November 17, 1993, he applied for asylum. An asylum officer found that guerillas had beaten Mejia to the point of near death, but that he had not been harmed on account of any protected grounds. The officer referred Mejia to an IJ, and the Immigration and Naturalization Service (“INS”) served Mejia with an Order to Show Cause for entering the U.S. without inspection. Mejia proceeded pro se and presented himself at several hearing dates through 1996. On one occasion, hearings were rescheduled for insufficient time and on another the IJ failed to appear. At the last of these appearances, Mejia submitted a proper change of address form, and notice of a rescheduled hearing was subsequently sent to his new address by certified mail. After two delivery attempts, the package remained unclaimed, and on January 7, 1997, an IJ ordered Mejia deported in absentia.

On March 31, 1998, Mejia, along with Marta Odelia Perez Lopez, the mother of his two U.S.-born children, consulted Bryan Ramos of the Centro de Assistencia Social Guatamalteco. Ramos falsely represented himself as an attorney licensed to practice immigration law. On behalf of both Mejia and Lopez, Ramos filed for relief under NACARA § 203(c). Ramos told Mejia he would be eligible for residency through his wife, despite the fact that Mejia and Lopez were not yet legally married. On April 13, 1998, Mejia was informed by the government that his motion had been rejected due to the failure to include a $110 filing fee. Mejia met with Ramos, who assured him that the INS was incorrect in requiring the filing fee, and that Ramos would correct the problem. Ramos never refiled.

On November 15, 1998, Mejia and Lopez married. For almost seven years Mejia and Lopez paid Ramos to handle their cases. Ramos continued to assure them that their cases were being handled properly. When Lopez was granted an appointment concerning her NACARA claim, however, Ramos refused to attend with her. Ramos's secretary then admitted to Lopez that Ramos was not a licensed attorney. On January 7, 2005, Lopez was granted relief under NACARA. Mejia, concerned that his case was not being handled properly, consulted his present attorney for the first time on April 30, 2005.

On July 5, 2005, Mejia filed a motion to reopen to rescind the order of deportation entered in absentia, renewed his motion to reopen under NACARA, and raised the issue of equitable tolling. On August 11, 2005, an IJ reopened the proceedings sua sponte for the following stated reasons: (1) Mejia's original asylum claim was timely filed but never adjudicated; (2) Mejia, with his wife, had two U.S.-born children; (3) Mejia's wife had been granted lawful permanent resident status through NACARA; and (4) the family would suffer hardship if Mejia's claims were not favorably adjudicated. The IJ further noted that such a decision was within the spirit and intent of NACARA.

At Mejia's February 8, 2006 merits hearing, an Immigration and Customs Enforcement (ICE) Assistant Chief Counsel stated that Mejia was statutorily eligible for NACARA relief and had established the requisite hardship. On appeal, however, ICE opposed, as an abuse of discretion, the IJ's sua sponte reopening, as the sole issue on appeal to the BIA. Mejia then raised the issue of proper notice for his 1997 hearing. The BIA overturned the IJ's sua sponte reopening, rejected Mejia's notice and equitable tolling arguments, and reinstated the deportation order. Mejia timely appealed to this court.

II. STANDARDS OF REVIEW

The BIA reviewed de novo the IJ's finding concerning equitable tolling of the NACARA deadline. We review the BIA's decision de novo, except to the extent that agency interpretations are afforded deference. Garcia–Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir.2006). The BIA's decision reviewed here is unpublished and issued by a single member of the BIA; it does not carry the force of law, and it is accorded only Skidmore deference proportional to its thoroughness, reasoning, consistency, and ability to persuade. Id. at 1012–15 (citing Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).

III. DISCUSSION

A. Mejia received proper notice of his 1997 hearing and is not entitled to a reopening of that hearing.

Mejia argues that, although he had constructive notice of his 1997 hearing, he never received actual notice, and should therefore be allowed to reopen. The BIA correctly rejected this argument, based on the twice-unclaimed notice of hearing sent by certified mail to Mejia's proper address.

An alien ordered removed in absentia has a statutory right to seek to reopen his case and petition for relief. See 8 U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(ii). But the BIA has held that certified mail bearing notice of the original removal hearing sent to an alien's last known address provides sufficient notice to effect service, whether or not the letter was signed for by the alien or by a responsible person at his address. In re Grijalva, 21 I. & N. Dec. 27, 34 (BIA 1995). Grijalva held that “where service of a notice of deportation ¹ 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. at 37. This court has held “that notice by certified mail sent to an alien's last known address can be sufficient under the [Immigration and Nationality] Act, even if no one signed for it.” Arrieta v. I.N.S., 117 F.3d 429, 431 (9th Cir.1997).

This strong presumption of effective notice by certified mail contrasts with a weaker presumption that results from regular mail service. Salta v. I.N.S., 314 F.3d 1076, 1079(9th Cir.2002). “Where a petitioner actually initiates a proceeding to obtain a benefit, appears at an earlier hearing, and has no motive to avoid the hearing, a sworn affidavit from petitioner that neither [he] nor a responsible party residing at [his] address received the notice should ordinarily be sufficient to rebut the presumption of [regular mail] delivery.” Id.

Mejia initiated his proceedings to receive a benefit, appeared at earlier hearings, had no known motive to avoid his 1997 hearing, and, together with his wife, the only other adult resident at his address, signed a sworn affidavit that he did not receive notice. Mejia meets the Salta test for overcoming the weak presumption of constructive notice by regular mail. But Mejia has presented no additional evidence to overcome the stronger presumption created by the use of certified mail in his case. The Department of Homeland Security (DHS) has put into evidence the certified mail envelope and certificates showing two attempted but unclaimed deliveries at the correct address, which Mejia's evidence cannot effectively rebut. Therefore, we hold that Mejia received effective notice of his 1997 hearing and is not entitled to a reopening of that hearing under 8 U.S.C. § 1229a(b)(5)(C)(ii).

B. This court cannot review the BIA's decision to overturn the IJ's sua sponte reopening.

Next, Mejia would have us review the BIA decision to overturn the IJ's sua sponte reopening of his case. The government contends that precedent prevents such review. See Ekimian, 303 F.3d at 1159. Mejia and amicus curiae, The American Immigration Council, counter that a recent Supreme Court ruling effectively overturns that precedent. See Kucana v. Holder, –––U.S. ––––, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). “This court has jurisdiction to determine whether jurisdiction exists.” Morales v. Gonzales, 478 F.3d 972, 977 (9th Cir.2007) (internal quotation marks omitted). We agree with the government's position.

The Kucana Court found that a motion to reopen was reviewable. Kucana, 130 S.Ct. at 840. “[T]he presumption favoring judicial review of administrative action” means that “executive...