Ramon Coplin v. Attorney General United States ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-2877
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RAMON COPLIN,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A078-830-303)
Immigration Judge: David Cheng
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Submitted Under Third Circuit LAR 34.1(a)
March 23, 2020
Before: JORDAN, RESTREPO, and GREENBERG, Circuit Judges
(Filed: March 24, 2020)
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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 Ramon Coplin seeks review of the denial by the Board of Immigration
Appeals (“BIA”) of his motion to reopen proceedings related to his in absentia removal
order. Coplin says that he did not receive the notice to appear (“NTA”) that was sent by
regular mail to the address he provided to the United States Citizenship and Immigration
Services (“USCIS”). The BIA decided that Coplin did not overcome the presumption of
receipt that attaches to notices sent via regular mail. Because we conclude that the BIA
did not abuse its direction in denying the motion to reopen, we will deny the petition for
review.
I. BACKGROUND
Coplin is a native and citizen of the Dominican Republic who came to the United
States in 1991, when he entered without inspection. He has resided here ever since. In
2001, his status was adjusted to lawful permanent resident on a conditional basis,
premised on an application by his U.S. citizen spouse. In 2003, Coplin filed a petition to
remove the conditions on his permanent resident status. He appeared at an interview with
the USCIS and was advised that the decision on his petition would be mailed to him. On
August 8, 2005, Coplin’s status as a lawful permanent resident was terminated because
he “failed to establish that [his] marriage was entered into in good faith, and not merely
to procure [his] entry to the United States as an immigrant.” (A.R. 99.) The Department
of Homeland Security then issued an NTA charging Coplin as removable. The NTA was
sent by regular mail to the address Coplin had provided. Over the next several months,
hearing notices were sent to Coplin’s address, scheduling and rescheduling the hearing.
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The date finally set was May 10, 2006, but Coplin failed to appear for his hearing, and
the immigration judge (“IJ”) ordered his removal in absentia.
Although Coplin learned of the removal order in 2006 when he tried to obtain
proof of his immigration status in order to renew his driver’s license, there was no
activity in his case until some six years later, when his counsel sent a letter to the IJ
asking to review Coplin’s file. Following the submission of that letter, there was again
no activity in Coplin’s case for nearly six years, at which point his counsel filed a motion
to reopen and rescind Coplin’s in absentia removal order due to lack of notice. In his
motion, Coplin claimed that he had not received the notices sent to him, including the
NTA, although they were sent to the correct address. He claimed that mail often
“disappeared or was stolen” from his building. (A.R. 90.) The IJ denied the motion to
reopen, concluding that Coplin had not overcome the presumption that he had received
the notices. The IJ also declined to exercise his discretion to sua sponte reopen Coplin’s
case. The BIA affirmed the IJ’s rulings. It determined that service by mail was
appropriate, that he had failed to rebut the presumption that he received the notices, and
that he had also failed to demonstrate exceptional circumstances warranting the sua
sponte reopening of the case.
This timely petition for review followed.
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II. DISCUSSION1
Coplin argues that the BIA erred in concluding that effective service of an NTA
has been established, and that the IJ thus did not have authority to enter the in absentia
order of removal. We disagree.
Contrary to Coplin’s argument, an NTA need not be personally served. Written
notice sent to the most recent address provided by the noncitizen is sufficient. 8 U.S.C.
§ 1229a(b)(5)(A); 8 C.F.R. § 1003.26(d); Matter of Grijalva, 21 I. & N. Dec. 27, 35 (BIA
1995).
Although written notice sent by mail is sufficient, a noncitizen who is ordered
removed in absentia can have the order rescinded, “if the alien demonstrates that [he] did
not receive notice[.]” 8 U.S.C. § 1229a(b)(5)(C)(ii). Notices sent by regular mail are
entitled to a presumption of receipt, albeit a weaker presumption than that which attaches
to notices sent by certified mail. Santana Gonzalez v. Att’y Gen., 506 F.3d 274, 277-78,
280 (3d Cir. 2007). A noncitizen can rebut the presumption of receipt through the
“submission of an affidavit by an alien claiming non-receipt of a notice of hearing by him
or her, or a responsible person residing at her address, along with circumstantial evidence
corroborating the alien’s claims of non-receipt[.]” Id. at 280. As the BIA has further
elaborated:
In determining whether a respondent has rebutted the weaker presumption
of delivery applicable in these circumstances, an Immigration Judge may
consider a variety of factors including, but not limited to, the following: (1)
1
The BIA had jurisdiction under 8 U.S.C. § 1103 and 8 C.F.R. § 1003.2, and we
have jurisdiction under 8 U.S.C. § 1252. “[W]e review the denial of a motion to reopen
for an abuse of discretion.” Liu v. Att’y Gen., 555 F.3d 145, 148 (3d Cir. 2009).
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the respondent’s affidavit; (2) affidavits from family members or other
individuals who are knowledgeable about the facts relevant to whether
notice was received; (3) the respondent’s actions upon learning of the in
absentia order, and whether due diligence was exercised in seeking to
redress the situation; (4) any prior affirmative application for relief,
indicating that the respondent had an incentive to appear; (5) any prior
application for relief filed with the Immigration Court or any prima facie
evidence in the record or the respondent’s motion of statutory eligibility for
relief, indicating that the respondent had an incentive to appear; (6) the
respondent’s previous attendance at Immigration Court hearings, if
applicable; and (7) any other circumstances or evidence indicating possible
nonreceipt of notice.
Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (BIA 2008).
Here, the BIA was well within its discretion in determining that Coplin had failed
to meet his burden to overcome the presumption of receipt. He submitted only his own
affidavit stating that he had never received any of the notices and alleging that the mail
may have disappeared or been stolen because the mailman left the mail in the building’s
foyer behind an unlocked door. That statement alone is insufficient to overcome the
presumption, especially considering that, when an NTA is delivered by mail “but does
not reach the alien through some failure in the internal workings of the household, the
alien can be charged with receiving proper notice, and proper notice will have been
effected.” In re M-D-, 23 I. & N. Dec. 540, 545 (BIA 2002).
Moreover, as the BIA noted, several factors undermine Coplin’s claims of non-
receipt. For instance, he did not provide an affidavit from anyone else who resided at the
address to which the notices were sent; the notices were not returned by the postal
service; and, significantly, although he became aware of the removal order in 2006 when
attempting to renew his driver’s license, Coplin waited many years to file his motion to
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reopen. Because he did not rebut the presumption that he received the NTA, Coplin’s
argument that the IJ did not have authority to grant the in absentia order of removal
against him necessarily fails.
III. CONCLUSION
For the foregoing reasons, we will deny the petition for review.
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