Santana Gonzalez v. Attorney General of U.S.
| Decision Date | 22 October 2007 |
| Docket Number | No. 06-2965.,06-2965. |
| Citation | 506 F.3d 274 |
| Parties | Haidee De Regla SANTANA GONZALEZ, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent. |
| Court | U.S. Court of Appeals — Third Circuit |
Reza Athari, Esq., Seth L. Reszko, Esq., Law Offices of Reza Athari, Las Vegas, NV, for Petitioner.
Anthony J. Labruna, Jr., Office of United States Attorney, Newark, NJ, Richard M. Evans, Susan K. Houser, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Before: SLOVITER, SMITH, and GARTH, Circuit Judges.
In 1997, Congress amended the Immigration and Nationality Act ("INA") to allow a notice of removal hearing to be served on an alien by regular mail, as opposed to certified mail, return receipt requested. In this case, an Immigration Court sent Petitioner Haidee de Regla Santana Gonzalez ("Petitioner") a notice of hearing by regular mail, which Petitioner claims she never received. The questions presented in her Petition are essentially twofold: (1) what presumption of receipt attaches to a notice of hearing sent by regular mail; and (2) how an alien claiming non-receipt of a notice sent by regular mail can rebut that presumption, thereby entitling her to an evidentiary hearing on that claim. We will grant her Petition.
Petitioner is a 35 year old native and citizen of Cuba. She arrived at Newark International Airport on November 5, 2003, without a valid visa or valid entry document. Upon arrival, a Department of Homeland Security ("DHS") officer apprehended her. Petitioner then informed the officer that she feared returning to Cuba. As a result, the DHS paroled her into the United States.
The DHS immediately served Petitioner with a Notice to Appear. The Notice to Appear charged her as removable under Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(7)(A)(i)(I).1 Additionally, the Notice to Appear listed Petitioner's address as "721 25th Street, Union City, New Jersey 07087," which was the address she gave the DHS upon arrival and the residence where her uncle, his wife, and their son lived.
The Notice to Appear did not provide a date for the Petitioner to appear before an Immigration Judge ("IJ"). Instead, it only ordered Petitioner to appear before an IJ in Newark, New Jersey, on a date "to be set" at a time "to be set." The Notice to Appear also stated that Petitioner should immediately notify the Immigration Court "in writing" on "Form EOIR-33" of any address change.
On January 7, 2004, the Immigration Court in Newark, New Jersey sent a Notice of Hearing to Petitioner's Union City address. The Notice of Hearing stated that the Immigration Court had scheduled her case for a hearing on January 15, 2004. This notice was sent via ordinary first-class mail.
Petitioner resided at the Union City address from her arrival in November 2003 until the beginning of January 2004. She then moved to Homestead, Florida. During her stay in Union City, Petitioner claims she never received the Notice of Hearing. Petitioner further claims that, before moving to Homestead, her uncle's wife called the DHS to advise it of the Petitioner's impending move.
After moving to Homestead, Petitioner asked the Florida Department of Children & Families Services for assistance with her immigration case. According to Petitioner, a person affiliated with the organization called the DHS's Newark office to advise it that Petitioner had moved to Homestead, Florida. Petitioner claims that, during her stay in Homestead, her uncle had been asked by Petitioner to forward any mail addressed to her in Union City to her new address in Homestead. According to Petitioner, she never received any Notice of Hearing from her uncle while in Homestead.
On January 15, 2004, the Immigration Court held Petitioner's removal hearing. Petitioner did not appear. Accordingly, the IJ issued an in absentia order removing Petitioner to Cuba.
In February 2004, Petitioner moved to Las Vegas, Nevada. Upon arriving in Las Vegas, Petitioner communicated with the Catholic Charities of Southern Nevada, as well as her present counsel, for assistance with her immigration case. In September 2004, Petitioner's counsel discovered the in absentia removal order after calling the Executive Office of Immigration Review. Petitioner then filed a motion to rescind the removal order and to reopen her immigration case. In her motion to reopen, Petitioner submitted an affidavit stating that she had not received the Notice of Hearing while living in Union City. The affidavit also stated that her uncle did not send her any Notice of Hearing after she moved to Florida, nor did he advise her of any notice sent to Petitioner at his Union City address. The IJ denied her motion without a hearing. The IJ found that Petitioner failed to provide sufficient evidence tending to establish non-receipt of the Notice of Hearing. Specifically, the IJ noted that the Notice of Hearing "was not returned as undeliverable" and that Petitioner failed "to provide probative evidence that tends to plausibly explain or confirm the claim of nondelivery."
Petitioner then appealed to the Bureau of Immigration Appeals ("BIA"). In her submission to the BIA, Petitioner argued that the IJ erred in holding that she failed to rebut the presumption of receipt of the Notice of Hearing. Petitioner also argued that, under Salta v. INS, 314 F.3d 1076 (9th Cir.2002), she was entitled to an evidentiary hearing regarding her claim of non-receipt. The BIA disagreed. In a written decision, the BIA affirmed the IJ's holding that Petitioner failed to rebut the presumption of effective delivery. Specifically, the BIA relied on Matter of Grijalva, 21 I & N Dec. 27 (BIA 1995), and held that the Notice of Hearing was entitled to a "presumption of effective delivery." The BIA also rejected Petitioner's claim that she was entitled to an evidentiary hearing regarding non-receipt of the notice. On this point, the BIA stated:
Finally, while [Petitioner] asserts that her relatives forwarded all her mail to her in Florida, but did not forward the Notice of Hearing, she has failed to provide an affidavit from them so stating.
This Petition for Review timely followed. The Petition, among other things, sought a reversal of the BIA's order, an order rescinding and reopening removal proceedings, and an order remanding those proceedings to the BIA with instructions to remand to the IJ.
We exercise jurisdiction to review the BIA's final order of removal under Section 242(a) of the INA, 8 U.S.C. § 1252(a). Because the BIA adopted the findings of the IJ and also commented on the sufficiency of the IJ's determinations, this Court reviews the decisions of both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). We review these decisions under the highly deferential "abuse of discretion" standard. INS v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988); Guo v. Ashcroft, 386 F.3d 556, 562 (2004). As such, these determinations "`will not be disturbed unless they are found to be arbitrary, irrational, or contrary to the law.'" Guo, 386 F.3d at 562 (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994)).
The INA allows an IJ to hold removal proceedings in absentia if the alien was provided proper written notice of the proceeding. 8 U.S.C. § 1229a(b)(5)(A). Under the INA, written notice must be "given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien's counsel of record, if any)." 8 U.S.C. § 1229(a)(1). An in absentia removal order may be rescinded, though, if the alien demonstrates that (1) she was in Federal or State custody and her failure to appear was through no fault of her own, (2) she "did not receive notice" of the hearing, or (3) her failure to appear was because of exceptional circumstances. 8 U.S.C. § 1229a(b)(5)(C). Our focus here is on the second means of rescinding an in absentia removal order: non-receipt of notice. As the word "receive" indicates, the key question in reopening a removal proceeding for lack of notice is not whether the Immigration Court properly mailed the notice to the alien, but whether the alien actually received the notice. Lopes v. Gonzales, 468 F.3d 81, 83 (2d Cir.2006) (citing Joshi v. Ashcroft, 389 F.3d 732, 736 (7th Cir.2004)).
We turn first to the appropriate standard to be employed in determining the receipt of a notice of hearing sent by regular ordinary mail.
The IJ found Petitioner's affidavit insufficient grounds for reopening her case, stating that Petitioner failed to "provide probative evidence that tends to plausibly explain or confirm the claim of nondelivery." The BIA similarly found Petitioner's affidavit insufficient, holding that she had "not overcome the presumption of effective delivery," citing to its own precedent in Matter of Grijalva, 21 I & N Dec. 27 (BIA 1995).
The presumption derived from Matter of Grijalva involved service of a notice of hearing by certified mail. Prior to 1997, a notice of removal hearing could only be served by certified mail, return receipt requested. 8 U.S.C. § 1252b(a)(2)(A) () (repealed, effective 1997); 8 U.S.C. § 1252b(f)(1) () (repealed, effective 1997).2 In Grijalva, the BIA held:
[I]n cases where service of a notice of a 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...
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