He v. Garland ( 2023 )

20-3457
He v. Garland
BIA
Sponzo, IJ
A206 583 322
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 27th day of March, two thousand twenty-
5 three.
6
7 PRESENT:
8 JOHN M. WALKER, JR.,
9 RAYMOND J. LOHIER, JR.,
10 MYRNA PÉREZ,
11 Circuit Judges.
12 _____________________________________
13
14 HUI HE,
15 Petitioner,
16
17 v. 20-3457
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Aleksander Boleslaw Milch, Esq.,
25 The Kasen Law Firm, PLLC,
26 Flushing, NY.
27
28 FOR RESPONDENT: Brian Boynton Acting Assistant
29 Attorney General; Anthony C.
30 Payne, Assistant Director; Jeffery
31 R. Leist, Senior Litigation
1 Counsel; Jessica D. Strokus, Trial
2 Attorney; Kirsten Williams, Law
3 Clerk, Office of Immigration
4 Litigation, United States
5 Department of Justice, Washington,
6 DC.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is GRANTED.
12 Petitioner Hui He, a native and citizen of the People’s
13 Republic of China, seeks review of a September 29, 2020,
14 decision of the BIA denying her motion to reconsider. In re
15 Hui He, No. A 206 583 322 (B.I.A. Sept. 29, 2020). We assume
16 the parties’ familiarity with the underlying facts and
17 procedural history.
18 We review the BIA’s denial of a motion to reconsider for
19 abuse of discretion. See Jin Ming Liu v. Gonzales, 439 F.3d
20 109, 111 (2d Cir. 2006). The BIA abuses its discretion where
21 it “provides no rational explanation, inexplicably departs
22 from established policies, is devoid of any reasoning, or
23 contains only summary or conclusory statements; that is to
24 say, where the Board has acted in an arbitrary or capricious
2
1 manner.” Ke Zhen Zhao v. U.S. Dep’t of Just., 265 F.3d 83,
2 93 (2d Cir. 2001) (citations omitted).
3 The BIA offered two reasons for summarily dismissing He’s
4 appeal, which it reiterated in its decision declining to
5 reconsider that dismissal. First, it noted that He’s notice
6 of appeal was infirm. Immigration regulations provide that
7 the BIA may “summarily dismiss any appeal” if a notice of
8 appeal “fails to specify the reasons for the appeal.” 8
9 C.F.R. § 1003.1(d)(2)(i)(A) (2020). Although Petitioner He
10 did fail to specify the reasons for her appeal, the operation
11 of another regulatory provision renders this justification
12 for the summary dismissal unavailing. That provision, 8
13 C.F.R. § 1003.1(e)(1) (2020), requires that “[a]ppeals
14 subject to summary dismissal as provided in paragraph (d)(2)
15 of this section . . . be promptly dismissed.”
16 The BIA did not dismiss He’s appeal promptly. He filed
17 her notice of appeal on July 25, 2018, but the BIA did not
18 dismiss the appeal until May 8, 2020. We conclude that this
19 nearly two-year lag was not prompt. Although the effective
20 regulation did not specify what constitutes prompt dismissal,
21 a subsequently enacted version of the regulation does. The
3
1 regulation now in effect requires the BIA to dismiss appeals
2 pursuant to § 1003.1(d)(2) “no later than 30 days after the
3 Notice of Appeal was filed.” 8 C.F.R. § 1003.1(e)(1) (2022).
4 This change, though not dispositive, confirms our conclusion
5 that the BIA waited too long to dismiss He’s appeal for a
6 technicality that was evident on the face of the notice of
7 appeal.
8 The BIA’s second rationale for summarily dismissing He’s
9 appeal was that she “did not file a brief within the time set
10 for filing.” The BIA may summarily dismiss an appeal when
11 an appellant indicates that “she will file a brief or
12 statement in support of the appeal and, thereafter, does not
13 file such brief or statement, or reasonably explain [her]
14 failure to do so, within the set time for filing.” 8 C.F.R.
15 § 1003.1(d)(2)(i)(E). In her request for reconsideration,
16 He alleged that her failure to file a brief ought to be
17 excused because she never received the briefing schedule or
18 hearing transcript. She supported this claim with her own
19 affidavit of nonreceipt and an affidavit from her attorney’s
20 office manager stating that the office has a process for
21 electronically logging mail and had no record of receipt of
4
1 these documents.
2 “[A] presumption of receipt is proper so long as the
3 record establishes that the notice was accurately addressed
4 and mailed.” Lopes v. Gonzales, 468 F.3d 81, 85 (2d Cir.
5 2006) (emphasis added). “[A] stringent presumption of
6 delivery” applies to certified mail, whereas “the burden of
7 proof to overcome the slight presumption in the context of
8 regular mail is significantly lower.” Silva-Carvalho Lopes
9 v. Mukasey, 517 F.3d 156, 159–60 (2d Cir. 2008). The lower
10 presumption may be overcome by affidavits indicating
11 nonreceipt. Matter of M–R–A–, 24 I. & N. Dec. 665, 674
12 (B.I.A. 2008). “In determining whether a respondent has
13 rebutted the weaker presumption of delivery . . . an [IJ] may
14 consider a variety of factors,” including “the respondent’s
15 affidavit,” “affidavits from . . . individuals who are
16 knowledgeable about the facts,” “due diligence . . . in
17 seeking to redress the situation,” and “any other
18 circumstances or evidence indicating possible nonreceipt of
19 notice.” Id.20 In this case, the BIA’s analysis of He’s claim of non-
21 receipt of the briefing schedule or hearing transcript was
5
1 insufficient. The BIA stated that the briefing notice was
2 mailed, but there is no evidence of that mailing in the
3 record, nor any statement of the type of mail used. Given
4 that the “slight” presumption of delivery of regular mail
5 “does no more than to shift a tie-breaking burden of proof to
6 the alien claiming non-receipt,” Silva-Carvalho Lopes, 517
7 F.3d at 160, the BIA should have explained why the affidavits
8 of nonreceipt did not rebut the presumption, particularly
9 given the lack of evidence of mailing and the diligence
10 exercised following the BIA’s dismissal of the appeal. See
11 Ke Zhen Zhao, 265 F.3d at 93 (holding that abuse of discretion
12 may occur where agency fails to “provide[] . . . rational
13 explanation” or where its decision “contains only summary or
14 conclusory statements”).
15 For the foregoing reasons, the petition for review is
16 GRANTED and the matter is REMANDED to the BIA for further
17 consideration.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
6