Victoria Markova v. U.S. Attorney General , 537 F. App'x 871 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15039
Non-Argument Calendar
________________________
Agency No. A079-428-591
VICTORIA MARKOVA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 19, 2013)
Before CARNES, Chief Judge, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Victoria Markova, a native and citizen of Belarus, seeks review of the Board
of Immigration Appeals’ order affirming the Immigration Judge’s denial of her
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motion to reopen and rescind her in absentia order of removal. The IJ and BIA
both concluded that Markova had failed to present sufficient evidence to overcome
the presumption that she had received written notice of her removal hearing, which
was sent to her address by regular mail.
I.
Markova was admitted into the United States on February 5, 2001, as a non-
immigrant visitor with authorization to remain in the country until August 4, 2001.
Markova long overstayed her visa and, in February 2007, she filed an application
for adjustment of status to that of lawful permanent resident based on her marriage
to Jerry Sloan, a United States citizen. The United States Department of Homeland
Security (DHS) denied that application on January 15, 2008, and ten months later
— on November 22, 2008 — initiated removal proceedings against Markova by
sending a Notice to Appear via regular mail to her apartment in Bal Harbour,
Florida. Less than two months later, on January 6, 2009, the immigration court
mailed Markova a Notice of Hearing, which was scheduled for March 24, 2009.
After she failed to appear at the scheduled removal hearing, the IJ found Markova
removable for having remained in the country past her authorized date and issued
an order of removal in absentia. A copy of the removal order was then mailed to
Markova’s Bal Harbour address.
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Nearly two years later, on January 21, 2011, Markova filed a motion to
reopen and rescind her removal order, claiming that she had not received either the
Notice to Appear or the Notice of Hearing even though she lived at the Bal
Harbour address through March 2009. She also alleged that she had only learned
of the removal order after she married her new American husband, Huey Griffin,
on December 28, 2010, and sought to adjust her immigration status in light of that
marriage. Markova submitted a personal affidavit in support of her motion to
reopen, in which she asserted that did not receive the Notice to Appear or Notice of
Hearing at her former address and that “[o]ther mail” sent to that address had been
delivered to the wrong apartments, including an appointment notice related to her
earlier application for adjustment of status.
The IJ denied the motion to reopen, finding that Markova had failed to
present sufficient evidence to overcome the presumption that properly addressed
notices sent by regular mail have been received. The IJ, while acknowledging
Markova’s affidavit, emphasized that she had not provided any corroborating
evidence of postal delivery problems at her former residence, including proof of
such problems from the United States Postal Service or the building manager of the
apartment complex. The IJ additionally noted that Markova did not have an
incentive to appear at her removal hearing because, at that time, her earlier
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application for adjustment of status had been denied and she had yet to marry her
current husband.
Markova appealed to the BIA, contending that the IJ improperly found that
she had failed to provide sufficient evidence to overcome the presumption of
receipt that attaches to notices sent by regular mail. Markova, for the first time,
submitted additional affidavits from two of her former neighbors, both of whom
asserted that they had received other tenants’ mail in the past and did not always
receive their own mail, at least not in a timely manner.
The BIA dismissed the appeal, agreeing with the IJ that Markova had failed
to adequately rebut the presumption that a properly addressed notice sent by way
of regular mail was received. The BIA explicitly considered Markova’s affidavit,
including her assertion of postal delivery problems, but it also noted that the Notice
to Appear and Notice of Hearing were properly mailed to her address, that neither
document had been returned as undeliverable, and that Markova did not appear to
have an incentive to attend her removal hearing given the denial of her application
for adjustment of status based on her earlier marriage. The BIA did not consider
the affidavits from Markova’s former neighbors, explaining that it would not
consider evidence first introduced on appeal.
II.
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We review the denial of a motion to reopen removal proceedings only for an
abuse of discretion and our review is limited to “determining whether the BIA
exercised its discretion in an arbitrary or capricious manner.” Jiang v. U.S. Att’y
Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Administrative factual findings,
including whether an alien received notice of her removal hearing, are “conclusive
unless a reasonable factfinder would be compelled to conclude to the contrary.”
See Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003).
An alien who fails to attend a proceeding after written notice has been
provided is subject to removal in absentia if the government establishes by “clear,
unequivocal, and convincing evidence” that it gave written notice and that the alien
is removable. 8 U.S.C. § 1229a(b)(5)(A). “[A] mailing to the last known address
is sufficient to satisfy the [government’s] duty to provide an alien with notice of a
deportation proceeding.” United States v. Zelaya, 293 F.3d 1294, 1298 (11th Cir.
2002). Once an in absentia order of removal has been issued, an alien may seek to
reopen the proceedings and rescind that order within 180 days by demonstrating
that the failure to appear was due to “exceptional circumstances,” such as a serious
illness or the death of a family member, or at any time by showing that she did not
receive notice of the removal hearing. 1 8 U.S.C. § 1229a(b)(5)(C), (e)(1). Where,
1
Throughout her appellate brief, Markova conflates the two distinct bases for seeking
rescission of an in absentia removal order — lack of notice and exceptional circumstances — by
arguing that her alleged lack of notice of the removal hearing was “due to exceptional
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as here, notice is sent by regular mail, the BIA presumes delivery and receipt of
that notice if it was “properly addressed and mailed according to normal office
procedures,” though the presumption is weaker than when notice is sent by
certified mail. Matter of M-R-A-, 24 I. & N. Dec. 665, 673 (BIA 2008). In
evaluating whether an alien has rebutted the presumption of receipt by regular
mail, the BIA and IJ must consider all relevant evidence and “may consider a
variety of factors,” including: (1) affidavits from the alien and “other individuals
who are knowledgeable about the facts relevant to whether notice was received”;
(2) whether the alien exercised due diligence upon learning of the in absentia
removal order; (3) any prior applications for immigration relief that would indicate
an incentive to appear at the removal hearing; (4) the alien’s attendance at earlier
immigration hearings; and (5) any other circumstances indicating possible non-
receipt of notice. Id. at 674.
Markova, invoking the requirements of 8 U.S.C. § 1229a(b)(5)(A), first
contends that the BIA and IJ erred in finding that she had received notice of her
removal hearing because there was “no clear, unequivocal and convincing
evidence” of such receipt, particularly in light of her own sworn statements.
circumstances, the failure of regular mail to be properly delivered to the correct apartment.” To
the extent that Markova is seeking to independently invoke the “exceptional circumstances”
ground for seeking rescission, which we seriously doubt given the specific nature of her
arguments, we lack jurisdiction to consider the issue because she did not properly raise it before
the BIA. See Amaya-Artunduaga, 463 F.3d 1247, 1250 (11th Cir. 2006).
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Markova’s argument misconstrues the relevance of § 1229a(b)(5)(A) to the
circumstances of this case and improperly attempts to shift the burden of proof to
the government. Once the order of removal was entered based on evidence that
notice was mailed to Markova’s address, the government had no additional
obligation under § 1229a(b)(5)(A) to establish by clear, unequivocal, and
convincing evidence that Markova actually received that notice. See 8 U.S.C. §
1229a(b)(5)(A); Zelaya, 293 F.3d at 1298. Instead, Markova bore the burden of
presenting sufficient evidence to overcome the presumption of receipt that attaches
to properly addressed notices sent by regular mail. See 8 U.S.C. §
1229a(b)(5)(C)(ii) (providing that an in absentia removal order may be rescinded
“if the alien demonstrates that [she] did not receive notice”); Matter of M-R-A-, 24
I. & N. Dec. at 673.
Markova also contends that her affidavit and those of her former neighbors
were sufficient to demonstrate that she did not receive notice of the removal
hearing, and that the BIA and IJ failed to consider and address those affidavits,
particularly as they relate to postal delivery problems at her former apartment
complex.2 Because Markova first submitted the neighbors’ affidavits on appeal to
the BIA, the IJ had no occasion to consider them and the BIA was entitled to
2
Markova also challenges the facial validity of the hearing notice mailed to her former
address, contending that it did not expressly state that it was sent by the Attorney General, as
purportedly required by § 1229a(b)(5)(A). Because Markova did not exhaust her administrative
remedies with respect to that claim by raising it before the BIA, we lack jurisdiction to consider
it. See Amaya-Artunduaga, 463 F.3d at 1250.
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disregard them in evaluating whether she had presented sufficient evidence to
overcome the presumption of receipt. See Matter of Fedorenko, 19 I. & N. Dec.
57, 74 (BIA 1984) (“The Board is an appellate body whose function is to review,
not to create, a record.”); 8 C.F.R. § 1003.1(d)(3)(iv) (providing that a party
seeking to introduce additional evidence to the BIA, which would require further
factfinding, must file a motion to remand the case to the IJ).
Contrary to Markova’s contentions, the BIA and IJ explicitly considered her
affidavit, including her assertion of past delivery problems with her mail, but found
that her uncorroborated statements were not enough to overcome the presumption
that she had received notice of her removal hearing. The determination that
Markova’s sworn statements, standing alone, were not sufficient to overcome the
presumption of receipt was not arbitrary or capricious. See Joshi v. Ashcroft, 389
F.3d 732, 735 (7th Cir. 2004) (“[A] bare, uncorroborated, self-serving denial of
receipt, even if sworn, is weak evidence.”); Kozak v. Gonzales, 502 F.3d 34, 37
(1st Cir. 2007) (same). That is particularly true given Markova’s assertions
throughout these proceedings that she failed to receive not one, not two, but three
separate immigration documents sent to her apartment by regular mail — the
Notice to Appear, the notice of her removal hearing, and her final order of
removal. Even accepting as true her statement that she had experienced mail
delivery problems at her former apartment, the record simply does not compel a
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finding that the relevant notices, which were sent on different dates, were each
delivered to some other tenant’s apartment.
The BIA, in further support of its finding, also emphasized that Markova did
not appear to have any incentive to attend the March 2009 removal hearing
because her application for adjustment of status based on her marriage to Jerry
Sloan had already been denied and she had yet to marry her current husband.
Although Markova contends that she had “every reason to appear” at the March
2009 removal hearing, she does not explain why that it is so and there is no
evidence in the record to support her contention.
Markova suggests that, at the very least, her affidavit was sufficient to entitle
her to an evidentiary hearing for the immigration court to consider the veracity of
her sworn statement that she did not receive notice of the March 2009 removal
hearing. She relies on the Ninth Circuit’s decision in Salta v. I.N.S., 314 F.3d
1076, 1079 (9th Cir. 2002), which held that where an alien “actually initiates a
proceeding to obtain a benefit” and “has no motive to avoid the hearing,” an alien’s
sworn affidavit that she did not receive notice of the hearing entitles her to “an
evidentiary hearing to consider the veracity of her allegations.” The underlying
rationale of the Ninth Circuit’s decision, needless to say, is that an alien who
initiates an immigration proceeding for her own benefit has a strong incentive to
attend any relevant hearings, making it far more likely that a failure to appear was
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actually due to a lack of notice. Markova, however, did not initiate the removal
proceedings against her or stand to benefit from those proceedings, which makes
Salta and its underlying rationale wholly inapplicable to the facts of her case. As
the Seventh Circuit has keenly observed, the intended recipient of a notice of
removal proceedings “has a strong incentive to lie” about the lack of notice and,
unfortunately, “[n]othing is simpler than submitting an affidavit in which one
attests that one didn’t receive a particular piece of mail.” Joshi, 389 F.3d at 735–
36.
Because Markova has not shown that the BIA and IJ abused their discretion
in denying her motion to reopen and rescind her in absentia order of removal, we
deny her petition for review.
PETITION DENIED.
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