Al Mutarreb v. Holder

• Decision Date: 06 April 2009
• Docket Number: No. 04-75676.,04-75676.
• Citation: 561 F.3d 1023
• Parties: Hani Abdulmalek AL MUTARREB, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

561 F.3d 1023

Hani Abdulmalek AL MUTARREB, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 04-75676.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 11, 2008.

Filed April 6, 2009.

Robert B. Jobe, Katherine M. Lewis, and Lina Baroudi, Law Office of Robert B. Jobe, San Francisco, CA, for the petitioner.

Gregory G. Katsas, David M. McConnell, and Patrick J. Bumatay (argued), U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A077-821-065.

Before: A. WALLACE TASHIMA, MARSHA S. BERZON and N. RANDY SMITH, Circuit Judges.

BERZON, Circuit Judge:

Hani Abdulmalek Al Mutarreb, a native and citizen of Yemen, was ordered removed in absentia and moved to reopen his proceedings. The immigration judge ("IJ") denied his motion to reopen, and the Board of Immigration Appeals ("BIA") affirmed the IJ's denial. Al Mutarreb petitions for review. He maintains that he did not receive notice of the pendency of proceedings in accordance with 8 U.S.C. § 1229(a)(1)(F), and argues that his motion to reopen should have been granted for that reason. Al Mutarreb also submits that the agency's finding of removability was either procedurally improper, or unsupported by substantial evidence. We reach only the latter contention. Because the record contains no evidence relevant to the charge of removability, we grant the petition for review and remand to the BIA with instructions to vacate the removal order.

I. FACTS AND PROCEDURAL HISTORY

Al Mutarreb was admitted to the United States on August 25, 1998, on an F-1 (student) visa. His visa allowed him to remain in the United States until August 20, 1999, for the purpose of studying at Contra Costa Community College in San Pablo, California.

In August or September of 1999, Al Mutarreb submitted an asylum application to the former Immigration and Naturalization Service,¹ stating that he feared persecution if he returned to Yemen. After an interview with an asylum officer in October 1999, Al Mutarreb received a Notice of Intent to Deny his application and submitted a rebuttal to the Notice, but received no response from the Service. A year and a half later, on April 3, 2001, the Service commenced removal proceedings against Al Mutarreb by issuing a Notice to Appear ("NTA"). The NTA charged that Al Mutarreb was removable under 8 U.S.C. § 1227(a)(1)(C)(i) ("Nonimmigrant status violators") because he had not attended Contra Costa Community College "from August 20, 1999 to Present," and so failed to comply with the terms of his F-1 status. The NTA directed Al Mutarreb to appear in Immigration Court for a removal hearing on May 9, 2001.

It is undisputed that Al Mutarreb did not receive the NTA. The Service sent the NTA via certified mail to a P.O. Box address that Al Mutarreb had provided in a previous filing, but the envelope was returned to the Service on May 4, 2001, bearing the stamp "unclaimed." The Service did not attempt to re-send the NTA to Al Mutarreb's street address (which Al Mutarreb had also provided in the same previous filing). Nor did the Service send a copy of the NTA to Al Mutarreb's counsel of record, Elias Shamieh, as Al Mutarreb argues the regulations require it to do. See 8 C.F.R. § 292.5(a) ("Whenever a person is required by any of the provisions of this chapter to . . . be given notice . . . such notice . . . shall be given . . . to . . . the attorney or representative of record, or the person himself if unrepresented.").

Because neither Al Mutarreb nor his representative received the NTA, neither was aware of the pendency of removal proceedings or the date of the hearing. Not surprisingly, neither Al Mutarreb nor his attorney appeared in Immigration Court on May 9, 2001. The Service thereupon asked the IJ to proceed with the removal hearing in absentia, pursuant to 8 U.S.C. § 1229a(b)(5)(A). The IJ did so. There is no transcript of the proceedings. At the close of the proceedings, the IJ signed a computer-generated order directing that Al Mutarreb be removed to Yemen "on the charge contained in the Notice to Appear." Notably, the IJ failed to check either of the two boxes on the computer-generated order that would indicate whether her finding of removability was supported by "the respondent['s] admi[ssion of] the factual allegations" at a prior hearing, or "documentary evidence [submitted by the Service] . . . which established the truth of the factual allegations."

The Immigration Court sent a copy of the removal order to Al Mutarreb. The record does not indicate which address or method of mailing the Service used this time, but it is clear that the removal order, unlike the NTA, did reach Al Mutarreb. Shortly after receiving the removal order, Al Mutarreb filed a motion to reopen with the Immigration Court, which the IJ denied.²

Appealing the denial of his motion to reopen to the BIA, Al Mutarreb conceded that the Service had mailed his NTA to his current P.O. Box address, but argued that the Service's attempt at notice did not meet the requirements of the Immigration and Nationality Act ("INA") § 239(a)(1)(F), codified at 8 U.S.C. § 1229(a)(1)(F), and that the IJ was therefore without authority to conduct proceedings in absentia.³ The BIA rejected Al Mutarreb's argument, holding that the Service's attempt at notice was statutorily sufficient and that reopening was therefore not merited.

Al Mutarreb filed a petition for review with this Court. Before argument, the parties stipulated to a remand "for the sole and limited purpose of considering the issue of Petitioner's [remov]ability." We granted the joint motion and remanded to the BIA. Al Mutarreb v. Ashcroft, No. 02-74177 (9th Cir. Feb. 25, 2004) (order).

On remand, the BIA took the view that the IJ's failure to check either box "appears to be a clerical oversight," and reasoned that, even though the IJ's factual findings are not indicated on the face of the order, one can infer from the order of removal that the IJ must have made the factual finding necessary to sustain the removability charge — namely, that Al Mutarreb failed to comply with the terms of his student visa. The BIA then concluded that the IJ's imputed factual finding is supported by a single piece of evidence in the record: Al Mutarreb's asylum application, which, in response to the instruction "Provide the following information about your education, beginning with the most recent: Name of School, Type of School, Location, [Dates] Attended," does not list any educational experience in the United States. The BIA held that this lack of information, without more, supports an inference that Al Mutarreb did not attend Contra Costa Community College as his visa required.

Al Mutarreb filed a timely petition for review with this Court.

II. ANALYSIS

Al Mutarreb's removal order qualifies as a "final order of removal" over which this Court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Because his removal order was entered in absentia, our review is also governed by an additional provision of the INA, 8 U.S.C. § 1229a(b)(5)(D). This provision specifies that circuit courts "shall" have jurisdiction to review the following three aspects of in absentia orders: "(i) the validity of the notice provided to the alien, (ii) the reasons for the alien's not attending the proceeding, and (iii) whether or not the alien is removable." Id. The first and third aspects are at issue here. Al Mutarreb submits that he did not receive proper notice of his removal proceedings, and, in the alternative, that the IJ's removal order is unsupported by a valid administrative finding that he is removable as charged. If he prevails on either claim, we must grant his petition for review. We address Al Mutarreb's claims in turn.

A. Notice

In the context of removal proceedings, notice is first accomplished through an NTA, which advises the alien that removal proceedings have begun, alerts him to the charges against him, and informs him of the date and location of the hearing.⁴ It is undisputed that Al Mutarreb did not actually receive an NTA. Our question is whether Al Mutarreb can be fairly charged with having received notice, consistent with the requirements of the INA and due process.

The INA permits service of NTAs and hearing notices either in person or by mail. 8 U.S.C. § 1229(c). Service by mail is statutorily sufficient so long as the notice was sent to "the last address provided by the alien in accordance with subsection (a)(1)(F) of this section." Id.; see also 8 U.S.C. § 1229a(b)(5)(A) (authorizing IJs to enter removal orders in absentia only "if the Service establishes by clear, unequivocal, and convincing evidence that . . . notice was . . . provided at the most recent address provided under section 1229(a)(1)(F) of this title."). What it means to be an address "provided under section 1229(a)(1)(F)," in turn, was the focus of Matter of G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001) (en banc), which held that an alien can be said to have "provided" his address to the Service "under" § 1229(a)(1)(F) only if he has actually received, or can be fairly charged with receiving, the specific advisals and warnings enumerated at § 1229(a)(1)(F)⁵ regarding the consequences of his failure to provide and update his address once removal proceedings have begun. That advisal is usually conveyed to an alien for the first time in an NTA. G-Y-R-, 23 I. & N. Dec. at 187. Because the parties agree that Al Mutarreb never actually received his NTA, G-Y-R-'s application in this case turns upon whether Al Mutarreb can be "properly charged" with having received notice. Id. at 189. The parties agree that whether an alien is properly charged with receiving an NTA he did not in fact get requires a due process inquiry — whether the method of service is "`reasonably calculated, under all the circumstances, to appri[s]e interested parties of the...