Muhammad Sajjad Nawaz v. Attorney General United States ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-3141
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MUHAMMAD SAJJAD NAWAZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA 1:A214-327-164)
Immigration Judge: David Cheng
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 6, 2022
Before: JORDAN, HARDIMAN, and MATEY, Circuit Judges
(Filed: September 23, 2022)
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OPINION
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
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Petitioner Muhammad Nawaz is a native and citizen of Pakistan. He was admitted
into the United States in June 2016 as a nonimmigrant with authorization to remain in the
United States until November 2016. He stayed longer than that, and in 2019 the
Department of Homeland Security (“DHS”) initiated removal proceedings by serving him
with a Notice to Appear (“NTA”). Nawaz failed to appear at his scheduled hearing, so an
Immigration Judge (“IJ”) conducted the hearing in absentia and ordered his removal.
Nawaz then filed a motion to reopen the proceedings, claiming that he had not received
proper notice of the hearing and that he was eligible for adjustment of status as the spouse
of a U.S. citizen. The IJ denied the motion, finding that Nawaz had been given proper
notice. The Board of Immigration Appeals (“BIA”) dismissed the appeal. We will deny
his petition for review.
I. BACKGROUND1
In June 2019, Nawaz received an NTA sent by regular mail to his home address,
directing him to appear before an IJ in Newark, NJ on October 11, 2019. Two months
later, he retained counsel, who dialed the 1-800 number provided for checking on the
status of his case. Counsel learned, and informed Nawaz, that no hearing was scheduled.
Nawaz regularly called the 1-800 number after that but failed to get any information
about the date for the hearing.
1
Nawaz submitted an affidavit in support of the motion to reopen, and, for
purposes of deciding this petition, we accept the facts he states and recount the following
narrative in accordance with them.
2
Although Nawaz’s calls proved fruitless, he nevertheless went to the Immigration
Court on October 11, as prescribed in the NTA. At the court, a clerk told him that no
hearing was scheduled in the system. Nawaz confirmed that the court had his correct
address, and the clerk instructed him to regularly check his mail for correspondence
related to the NTA.
A Notice of Hearing in Removal Proceedings (“Hearing Notice”) was sent by the
Immigration Court by regular mail to Nawaz’s home address on October 22, directing
him to appear at a hearing on November 8. Nawaz, however, maintains that he did not
receive that notice.
When Nawaz failed to appear on November 8, the IJ conducted the hearing in
absentia and ordered that he be removed to Pakistan. The IJ found that Nawaz was
provided written notice of the removal hearing, which included a warning that failing to
appear carried a risk that a removal order would be entered. The IJ also found no reason
to excuse Nawaz’s absence and concluded that DHS had established his removability. A
copy of the removal order was mailed to Nawaz.
On November 19, Nawaz attended his regular appointment with U.S. Immigration
and Customs Enforcement in Marlton, New Jersey. There, for the first time, he learned
of the removal hearing and resulting order. He promptly filed a motion to reopen “on the
basis of not having received any actual notice of the hearing[.]” (A.R. at 45.) If the
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matter was reopened, he said, he would concede removability but would seek relief such
as voluntary departure or adjustment of status based on his marriage to a U.S. citizen.2
The IJ denied the motion and noted that Nawaz “does not contest service of [the]
NTA[.]” (A.R. at 36.) The IJ rejected Nawaz’s claim that he had not received the
Hearing Notice, finding that the Hearing Notice was sent to his last known address – the
same address as the NTA, which he did receive – and that the Hearing Notice was not
returned by the U.S. Postal Service.
Nawaz appealed to the BIA, which dismissed the appeal. The BIA was
unpersuaded that Nawaz had not received the Hearing Notice, saying instead that there
was insufficient evidence to overcome the presumption that it was delivered. The BIA
observed that “the record does not contain any evidence that either the [H]earing
[N]otice, or the in absentia order of removal, were returned to the Immigration Court”
and that there was nothing to suggest that the Hearing Notice went to the wrong address
or that Nawaz was having mail delivery problems more generally. (A.R. at 3-4.) The
BIA also pointed out that Nawaz had not produced any affidavits from others who could
verify that he had not received notice or any filings he made for clarification from DHS
or the Immigration Court.
II. DISCUSSION3
Our review of the BIA’s denial of a motion to reopen is “highly deferential: we
2
DHS records indicate that “[Nawaz]’s marriage … has been found to be
fraudulent.” (A.R. at 58.) Whether that refers to his present marriage is unclear.
3
“We exercise jurisdiction to review the BIA’s final order of removal under
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review the denial of a motion to reopen for abuse of discretion” and will not disturb the
decision unless it is “arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d
556, 562 (3d Cir. 2004). We review underlying factual findings for substantial evidence
and will uphold them if they are “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). Our review of questions of law is de novo. B.C. v. Att’y Gen., 12 F.4th 306, 313
(3d Cir. 2021).
Nawaz advances two arguments on appeal. First, he contends that the IJ and BIA
erred in concluding that he had received the Hearing Notice and ignored it despite what
he characterizes as his repeated efforts to timely participate in the removal proceedings.
Second, he contends that the IJ’s entry of a removal order in absentia, without giving him
notice, violated due process. He cannot prevail on either of those arguments.
As to the first, Nawaz contends that the IJ and the BIA, “erred in assuming that
[he] received notice of the hearing and simply chose not to attend[,]” and that they
overlooked “the overwhelming evidence that he made numerous, deliberate[,] and
consistent attempts to find out when his hearing was scheduled.” (Opening Br. at 8). He
points to the fact that he went to the Immigration Court on October 11, the date listed on
his NTA, and that he retained counsel to prepare for his hearing. His efforts to “comply
Section 242(a) of the INA, 8 U.S.C. § 1252(a).” Santana Gonzalez v. Att’y Gen., 506
F.3d 274, 276 (3d Cir. 2007). “Ordinarily, Courts of Appeals review decisions of the
[BIA], and not those of an IJ.” Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009).
We review the IJ’s decision only “to the extent the BIA substantially relied on that
opinion.” B.C. v. Att’y Gen., 12 F.4th 306, 313 (3d Cir. 2021) (quotation marks omitted).
5
with all requirements,” says Nawaz, were enough to show that he did not receive notice,
even without supporting affidavits from others. (Opening Br. at 9-10).
An in absentia order may be reopened if a petitioner demonstrates that he “‘did
not receive notice’ of the [removal] hearing[.]” Santana Gonzalez v. Att’y Gen., 506 F.3d
274, 276-77 (3d Cir. 2007) (quoting 8 U.S.C. § 1229a(b)(5)(C)). “[T]he key question in
reopening a removal proceeding for lack of notice is not whether the Immigration Court
properly mailed the notice to the alien, but whether the alien actually received the
notice.” Id. at 277. Notices sent by regular mail are entitled to a presumption of
delivery, but that presumption may be rebutted by submission of an affidavit by an alien
claiming non-receipt of a notice of hearing, along with circumstantial evidence
corroborating the alien’s claims of non-receipt. Id. at 279-80.
We can readily understand Nawaz’s frustration at the administrative rulings that,
in his view, have deprived him of a hearing. But, on this record, we cannot say that the
IJ’s finding that Nawaz received proper notice of the hearing was unsupported by
substantial evidence. See Guo, 386 F.3d at 561 (“We will reverse [a BIA determination]
only if ‘the evidence not only supports [a contrary] conclusion, but compels it.’”)
(quoting Elias-Zacarias, 502 U.S. at 481 n.1) (second alteration in original)). The BIA
justified the IJ’s finding by, among other things, considering that Nawaz received the
NTA through the mail without issue, that there were no indications that the Hearing
Notice or the in absentia order were not properly mailed or had been sent to the wrong
address, and that Nawaz did not report any other mail delivery problems at his home or
provide supporting affidavits from others to back up his claims. The BIA considered
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Nawaz’s arguments about his trip to the Immigration Court and his retention of counsel
but explained that they were insufficient to overcome the evidence supporting the
presumption of delivery, particularly since Nawaz’s counsel never entered an appearance
prior to the mailing of the Hearing Notice. While we are sympathetic to Nawaz’s
continued assertion, backed up by an affidavit, that he never received the Hearing Notice,
the standard of review on a motion to reopen constrains us here. Given the evidence
supporting the decisions of the IJ and BIA, our skepticism that the agency made the right
call is not enough to overcome the outcome dictated by the record and our deferential
standard of review.
As to Nawaz’s second argument, his due process rights were not violated. He
claims that a lack of notice, combined with the entry of his removal order in absentia,
amounted to “an egregious violation of due process.” (Opening Br. at 12.) We have
held, however, that entering a removal order in absentia does not itself violate due
process because an alien has an opportunity to avoid such an order by attending the
hearing and contesting the government’s efforts to remove him. Jean Louis v. Att’y Gen.,
914 F.3d 189, 192 (3d Cir. 2019). And, as just discussed, substantial evidence supported
the IJ’s determination that Nawaz received proper notice, so we are bound by that
finding. Since Nawaz had notice that the government was seeking to remove him and
that he was entitled to appear before the IJ to oppose the entry of a removal order, he was
not denied his right to “a hearing and an opportunity to be heard and present evidence.”
Id.7
III. CONCLUSION
For the foregoing reasons, we will deny the petition for review.
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