Sembiring v. Gonzales

• Decision Date: 24 August 2007
• Docket Number: No. 04-74076.,04-74076.
• Parties: Rehsempata SEMBIRING, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

499 F.3d 981

Rehsempata SEMBIRING, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-74076.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 2007.

Filed August 24, 2007.

Rehsempata Sembiring, pro se, Mission Viejo, CA; Caleb E. Mason, California Polytechnic State University, Pomona, CA, for the petitioner.

Jennifer Paisner, Arthur L. Rabin, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A96-353-121.

Before: BARRY G. SILVERMAN, W. FLETCHER, and RICHARD R. CLIFTON, Circuit Judges.

W. FLETCHER, Circuit Judge:

Petitioner Rehsempata Sembiring applied for asylum in May 2003. Now, more than four years later, we evaluate a petition for review in which she seeks a hearing on that application. Sembiring appeared in the Immigration Court on August 5, 2003, the date originally scheduled for her hearing, only to find that she had been ordered removed in absentia six days earlier. The Immigration and Naturalization Service (now the Department of Homeland Security) contends that it sent her by regular mail a notice that her hearing had been rescheduled to the earlier date. Sembiring contended at the time, and has contended ever since, that she never received such a notice.

Under 8 U.S.C. § 1229a(b)(5)(A), an Immigration Judge must enter a removal order in absentia if the alien fails to appear for a hearing in a removal proceeding and if the government "establishes by clear, unequivocal, and convincing evidence that the written notice [required under 8 U.S.C. § 1229(a)(1) or (2) has been] provided[to the alien] and that the alien is removable." Section 1229(a)(1) and (2) both provide that written notice "shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien ... )." These provisions have been amended to authorize the government to use regular first class mail to fulfill the requirements for "service by mail," where the original provision required the government to use certified mail. Compare 8 U.S.C. § 1229(a)(1), (2) with 8 U.S.C. § 1252b(a)(1) (1995), repealed by Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, div. C, tit. III, § 308(b)(6), 110 Stat. 3009-546, 3009-615. See generally Salta v. INS, 314 F.3d 1076, 1078-79 (9th Cir.2002) (discussing the distinctions between the provisions). Under § 1229a(b)(5)(C)(ii), an alien may obtain rescission of a removal order entered in absentia at any time "if the alien demonstrates that the alien did not receive notice in accordance with" § 1229(a)(1) or (2).

In Salta, we held that the "strong presumption" of effective service that had applied when service was by certified mail does not apply to service by regular mail, and that the "fairly strong evidence" that had been necessary to rebut the "strong presumption" is not required. Id. at 1079. In this case, we apply the lesser presumption of effective service applicable to regular mail. We hold that petitioner Sembiring presented sufficient evidence in the Immigration Court to overcome the presumption of effective service, and therefore to "demonstrate[ ] that [she] did not receive notice." § 1229a(b)(5) (C)(ii). Moreover, that evidence was credible, corroborated, and wholly unrefuted by the government. Because Sembiring demonstrated that she did not receive service, it was an abuse of discretion for the Immigration Judge to refuse to reopen proceedings in order to rescind the in absentia removal order.

I. Background

Rehsempata Sembiring entered the United States from Indonesia on February 28, 2002, under a non-immigrant B-1 visitor visa. On May 3, 2003, Sembiring filed an asylum application, contending that she feared persecution in Indonesia because of her Christian religion. Sembiring contended, among other things, that friends and family members had been harmed because of their Christian faith-based practices, and that she had been "threatened with having her house burned down" by government officials because of her own Christian practices. In her asylum application, Sembiring acknowledged that she had overstayed her visa. She stated that she did not apply for asylum earlier because she "did not know about asylum before." Sembiring listed her current address on her asylum application.

Sembiring had not been served with a notice to appear when she applied for asylum. After she submitted her application, the Immigration and Naturalization Service ("INS"), now the Department of Homeland Security, initiated removal proceedings against her. On July 3, 2003, Sembiring was personally served with a written notice to appear for removal proceedings. The notice instructed Sembiring to attend a hearing before an Immigration Judge ("IJ") on August 5, 2003, at 1:00 p.m.

The administrative record contains a one-page "Notice of Hearing in Removal Proceedings" rescheduling Sembiring's initial hearing to July 30, 2003 — six days earlier. The "Certificate of Service" printed at the bottom of the page is in the same typeface as the notice itself. The Certificate of Service states, "This document was served by: Mail (M) Personal Service (P)." The "M" is circled. Near the "M" is a handwritten date of July 8, 2003. However, at the top of the page, the notice itself is dated the next day, July 9, 2003. Sembiring's listed address on the one-page notice is the same as the address provided in her asylum application.

Two identical copies of the one-page rescheduling notice appear in the administrative record. Immediately following the first and immediately preceding the second is what appears to be a photocopy of an envelope. Its placement in the record suggests that it is the envelope used to mail the notice. However, the only things that are clearly discernible are the return address of the Immigration Court in Los Angeles on the left hand side and some numbers followed by a bar code at the bottom. There is a faint outline of a portion of a postmark on the right hand side. There is also a faint outline of what may be a date stamp in the middle of the envelope where the name and address of the addressee would ordinarily be written. Almost nothing is readable, except that the letters "LOS" (as in "Los Angeles," perhaps) appear at the beginning of the last line of the stamp. Sembiring's address is in Mission Viejo rather than Los Angeles. There is no indication whatsoever of a name or address of an addressee anywhere on the envelope.

Sembiring did not appear in the Immigration Court on July 30, 2003. A removal hearing was nonetheless held on that date, and she was ordered removed in absentia. The removal order was mailed to the Mission Viejo address listed on Sembiring's asylum application and on the rescheduling notice.

On August 5, 2003, the originally scheduled hearing date, Sembiring appeared pro se in the Immigration Court. In an unsworn, signed, typewritten letter to the Immigration Court dated August 11, 2003, Sembiring described what had happened. Her letter states:

I request a motion to reopen because, when I show up on the 5TH of August, the lady in 15th floor told me that my hearing date was reschedule and I never got the notice from the mail.

I did receive the notice of removal preceding which is I did not understand what it was all about until I show up to the court on the 5TH of August.

I never receive the first letter saying that my hearing date was reschedule.

Enclosed please find the notice of appear that show that my hear in was the 5th of August.

Please reopen my case since I never got / know that I have to show up on any other date.

(Errors in original.) The letter was filed in the Immigration Court on August 14, 2003. Immediately following the letter in the administrative record is a copy of the original notice scheduling Sembiring's hearing for August 5, as well as a copy of the in absentia order of removal dated August 1. We assume, as did the BIA, that both documents were attached to Sembiring's letter.

The IJ construed Sembiring's pro se letter as a "motion to reopen" and denied it. Citing our decision in Salta, the IJ stated that even when certified mail is not used "there still exists a presumption that the postal officers properly discharged their duties." The IJ gave two reasons for concluding that Sembiring's statement that she did not receive the notice of the changed hearing date was "unsupported by the evidence presented." First, the IJ stated that the address on the rescheduling order was the same as the address provided by Sembiring in her asylum application, that Sembiring had not alleged that she had moved, and that she also had not filed a change of address form. Second, again citing Salta, the IJ stated that Sembiring had failed to overcome the presumption of proper delivery because "she did not allege that she commonly has problems with receipt of her mail, nor did she submit any evidence, such as an affidavit, demonstrating that she failed to receive the notice of hearing." The IJ stated that "statements in motions are not evidence and are, therefore, not entitled to evidentiary weight."

Sembiring appears to have received the IJ's denial of her motion to reopen on August 17. On August 20, she retained counsel. Her counsel filed a timely notice of appeal of the IJ's decision with the Board of Immigration Appeals ("BIA"). He also submitted to the IJ a motion to reconsider. Attached to the motion was his own declaration, a declaration by Sembiring, and a handwritten letter by Sembiring. Sembiring's declaration asserted that she had "never received notice of the reset date at my address despite the fact that my address has always remained the same, and I have never refused mail at that address." She also declared that when she appeared for her hearing on August 5, 2003, and the clerk...