Singh v. Gonzales, 04-72701.

• Decision Date: 28 November 2006
• Docket Number: No. 04-72701.,04-72701.
• Parties: Dalip SINGH, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

469 F.3d 863

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 November 28, 2006.

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, D.C., for the respondent.

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.

FISHER, Circuit Judge.

The question posed by this case is whether an alien who in sworn affidavits claims that he never received notice of the BIA's adverse decision is entitled to reopening and reissuance of that decision so that he may timely appeal it to this court. More specifically, when the BIA uses regular mail to meet its regulatory obligation to serve its decisions on aliens, does the BIA's factual finding that its decision was properly mailed to the alien's address of record preclude the alien's claim that he did not actually receive the decision?

I.

Petitioner Dalip Singh is a 42-year-old native and citizen of India. On August 10, 1998, he entered the United States on a B-2 visitor's visa, which authorized him to remain in the United States until February 9, 1999. Some time before his visa expired and while still lawfully in the United States, Singh petitioned the immigration authorities for asylum, claiming persecution on account of religion (Sikh) and membership in a disfavored group (the Akali Dal Mann Party). Subsequently, Singh appeared at two immigration hearings, one on November 29, 2001 and the second on May 23, 2002.

At the conclusion of the May 23 hearing, the Immigration Judge (IJ) denied Singh all relief, and Singh thereafter 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, Khuldip 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.

II.

We must decide whether the BIA abused its discretion in refusing to reopen and reissue its adverse October 2003 decision, given Singh's claim that he never received notice of that decision and therefore could not timely appeal it to this court on its merits.⁴ To succeed on his claim that the BIA abused its discretion, Singh must establish that the BIA failed to comply with the terms of its own regulations. See Iturribarria v. INS, 321 F.3d 889, 895 (9th Cir.2003). He cannot do so, and thus his petition for review must be denied.

The regulations governing the BIA's obligation to give notice of its decisions provides that "[t]he decision of the Board ... shall be served upon the alien or party affected ...." 8 C.F.R. § 1003.1(f).⁵ Service, in turn, is defined as "physically presenting or mailing a document to the appropriate party or parties." 8 C.F.R. § 1003.13 (emphasis added).

When the Board relies on service by mail, it must establish that the document placed in the mail was correctly addressed to the alien's (or his counsel's) address of record. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996). In Martinez-Serrano, the BIA had mailed its decision denying an alien's motion to reopen to an old address, even though it had been properly notified of counsel's new address. The BIA learned of its mistake one month later and mailed the decision to the correct address. The alien petitioned this court for review of the Board's denial more than 90 days after the date of the incorrectly addressed mailing, but within 90 days of the BIA's subsequent, corrected mailing.⁶ The government argued that we were without jurisdiction to review the BIA's denial of the motion to reopen because the alien's petition for review was filed more than 90 days after the BIA first mailed its decision. Rejecting the government's contention, we relied on Zaluski v. INS, 37 F.3d 72, 73 (2d Cir.1994) (per curiam), which held that "the BIA's regulations ... specify that decisions be mailed to the appropriate party" and "the decision was not mailed to the appropriate party until it was directed to the address duly recorded with the BIA." Martinez-Serrano, 94 F.3d at 1258-59. Reasoning that "the petitioner should not be penalized for the BIA's failure to comply with the terms of the federal regulations," we concluded that the "[t]ime 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." Id. at 1259 (quoting Zaluski, 37 F.3d at 73) (emphasis added) (second alteration in original).

Under the clear terms of the regulations then, as interpreted by this court, the BIA does not effectuate service if it fails to mail its decision to the party's correct address of record. This is the framework under which we analyze Singh's claims that he is entitled to relief if he can show he did not in fact receive notice of the Board's decision. In order to prevail on his petition for review, Singh must establish that the BIA failed to fulfill its regulatory or legal obligations with respect to its October 2003 decision.

III.

A.

Singh's allegation of nonreceipt suggests that he might be claiming the decision was never mailed at all, much less to the correct address. If true, that would violate 8 C.F.R. § 1003.1(f) on its face. The BIA found, however, that the decision "was correctly mailed" to Singh's attorney, and we review this factual finding for substantial evidence. See Hamoui v. Ashcroft, 389 F.3d 821, 826 (9th Cir.2004). We "must uphold the BIA's finding unless the evidence compels a contrary result." Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.2003). Singh has offered only his affidavits suggesting that the decision was not mailed by the BIA, and the BIA points to the properly addressed transmittal sheet of its October 2003 decision as evidence that it was. See Haroutunian v. INS, 87 F.3d 374, 375 (9th Cir.1996) ("The cover letter was dated June 17, 1994, and we presume that the final order of deportation was mailed on that date."). Given this record, sparse as it is, we are unable to conclude on the basis of Singh's affidavits alone that the BIA's finding was not sup ported by substantial evidence.

B.

Singh argues that his allegation of nonreceipt, supported by his affidavits and course of conduct, should equitably toll the filing deadline for petitioning this court. Had the BIA failed to comply with its regulations, this argument would have had merit. But Singh equates the BIA's obligation to "serve" with actual delivery. Singh's position is a reasonable one because service is generally understood to mean delivery. See Black's Law Dictionary 1399 (8th ed.2004) (defining serve as "1. To make legal delivery of (a notice or process) ...; 2. To present (a person) with a notice or process as required by law"). Indeed, the BIA's own definition of service requires the BIA either to "physically present[]" its decision (ensuring the alien actually receives it) or to mail its decision. 8 C.F.R. § 1003.13. These two methods of service are of equal significance only if one presumes receipt from mailing. Significantly, prior to the 1996 amendments to the United States Code, the BIA was required to mail its decision using certified mail, which provided documentation of actual delivery. See 8 U.S.C. §§ 1252b(a)(1), (f)(1) (1995); see also In re Grijalva, 21 I. & N. Dec. 27, 32 (BIA 1995). Thus, the BIA's mailing of its decision by certified mail to an alien was roughly equivalent to physically presenting the decision to the alien. Congress, however, amended the statute in 1996 to allow the BIA to send its decision by regular mail. See 8 U.S.C. § 1229(a)(1) (1996). And because the BIA retained its regulations authorizing service by "mailing," it appears that regular mail suffices even though it does not generate any confirmation by the U.S. Postal Service that...