Singh v. Gonzales

• Decision Date: 19 July 2007
• Docket Number: No. 04-72701.,04-72701.
• Citation: 494 F.3d 1170
• Parties: Dalip SINGH, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

494 F.3d 1170

Dalip SINGH, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-72701.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 17, 2006.

Filed July 19, 2007.

Inna Lipkin, Law Office of Kuldip S. Dhariwal, Fremont, CA, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Jeffrey J. Bernstein, Senior Litigation Counsel, Benedetto Giliberti, Attorney, and Joan Smiley (argued), Attorney, United States Department of Justice, Washington, DC, for the respondent.

Trina Realmuto and Beth Welin, for Amici Curiae American Immigration Law Foundation, Northwest Immigrant Rights Project, and the Lawyers' Committee for Civil Rights of the San Francisco Bay Area.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A77-424-559.

Before: ALEX KOZINSKI and RAYMOND C. FISHER, Circuit Judges, and FREDERIC BLOCK, Senior District Judge.^*

Opinion by Judge FISHER; Concurrence by Judge BLOCK.

ORDER

Singh's petition for rehearing and for rehearing en banc, filed January 12, 2007, is granted in part. The opinion filed November 28, 2006, see Singh v. Gonzales, 469 F.3d 863 (9th Cir.2006), is hereby withdrawn. A superseding opinion and concurrence will be filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed.

OPINION

FISHER, Circuit Judge:

Petitioner Dalip Singh is a 42-year-old native and citizen of India. After an Immigration Judge (IJ) denied Singh's asylum claim, Singh timely appealed the IJ's adverse decision to the Board of Immigration Appeals (BIA). On October 7, 2003, the BIA issued its decision denying Singh's appeal in an order affirming the IJ without an opinion. Singh and his attorney of record, Kuldip Dhariwal, swear they did not receive notice of the decision.¹ The BIA contends, however, that it sent the decision by regular mail to Singh's counsel, whose correct address appears on the decision's transmittal cover sheet; the BIA acknowledges that the decision was not sent to Singh himself.

Singh contends that neither he nor his attorney learned of the BIA's October 2003 decision until February 2004, well after the time for Singh to file an appeal with this court had lapsed. See 8 U.S.C. § 1252(b)(1) (30-day time limit for filing petitions for judicial review); Caruncho v. INS, 68 F.3d 356, 359 (9th Cir.1995) (statutory time limit is mandatory and jurisdictional); see also Stone v. INS, 514 U.S. 386, 394-95, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (statutory time limit is not tolled by the filing of a motion to reopen or reconsider). On February 23, Dhariwal received a "bag and baggage order" from the Immigration and Naturalization Service,² directing Singh to appear for removal on March 2, 2004.³ After Dhariwal phoned the BIA and was informed about its October 2003 denial of Singh's appeal, he promptly filed a motion to reopen with the BIA, requesting that it reissue its decision so Singh could timely appeal to this court. Both Dhariwal and Singh attached affidavits to the motion to reopen, swearing under penalty of perjury that neither had received the Board's earlier decision. The BIA denied Singh's motion on April 28, 2004, stating, in full: "The respondent has filed a motion to reissue the Board's October 7, 2003, decision. The motion is denied, as the record reflects that the respondent's decision was correctly mailed to the respondent's attorney of record." Singh now petitions for review of the Board's denial of his motion to reopen.

Singh's affidavits of nonreceipt suggest that the decision may never have been mailed. If true, that would violate 8 C.F.R. § 1003.1(f), which requires that the BIA serve a copy of its decision on the affected alien. The BIA stated that the decision "was correctly mailed" to Singh's attorney, but provided no explanation of how it reached this conclusion. "[T]he BIA is obligated to consider and address in its entirety the evidence submitted by a petitioner," and where its failure to do so could have affected its decision, remand is appropriate. Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.2005); see also Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir.2004).

If the decision was properly mailed, then the BIA fulfilled its statutory duty of service. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996) ("Time for filing a review petition begins to run when the BIA complies with the terms of federal regulations by mailing its decision to petitioner's [or his counsel's] address of record.") (emphasis removed); see also 8 C.F.R. §§ 1003.1(f), 1003.13 (requiring the BIA to serve notice of its decision on the affected alien and defining service as "physically presenting or mailing a document to the appropriate party or parties"). In concluding that Singh's decision was properly mailed, however, the BIA did not explain its reasons for doing so, nor did it acknowledge the affidavits filed by both Singh and his lawyer alleging nonreceipt of the BIA's decision. Although we have previously held that a properly addressed cover letter creates a presumption of mailing on the date of the cover letter, see Haroutunian v. INS, 87 F.3d 374, 375 (9th Cir.1996), we have never held that such a presumption cannot be rebutted by affidavits of nonreceipt by both a petitioner and his counsel of record. Indeed, in Haroutunian, we specifically noted that "[a]lthough Haroutunian had ample opportunity to present evidence" to support his assertions of nonmailing, he had failed to do so and that the sole evidence before us then was the properly addressed cover letter. Id.; see also Karimian-Kaklaki v. INS, 997 F.2d 108, 111 (5th Cir.1993) (applying a presumption of mailing based on a cover letter but noting that "petitioners have not asserted that they did not receive a copy of the BIA decision"). Because the only evidence regarding mailing petitioners would have is information about their own receipt or nonreceipt of the decision, Haroutunian does not foreclose a petitioner's sworn affidavit — particularly if reinforced by an affidavit from counsel, as here — being sufficient to rebut the presumption of mailing and requiring the BIA to look beyond the cover letter. We decline to resolve this issue on the record before us, however.

Had the BIA considered and specifically addressed the effect of Singh's and his counsel's affidavits of nonreceipt, it may well have concluded that the presumption of mailing created by the cover letter was rebutted and would have required further evidence of mailing before determining that the decision had indeed been properly mailed. See Nunley v. City of Los Angeles, 52 F.3d 792, 795-96 & n. 5 (9th Cir. 1995) (stating that "[u]nder the so-called `bursting bubble' approach to presumptions, a presumption disappears where rebuttal evidence is presented" and that a "specific factual denial of receipt" by the addressee is sufficient to support a finding that the recipient did not receive...