Nibagwire v. Gonzales ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AIMEE NIBAGWIRE, 
Petitioner,
v.
 No. 04-2254
ALBERTO R. GONZALES, Attorney
General,
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals.
(A97-209-211)
Argued: October 26, 2005
Decided: June 13, 2006
Before LUTTIG,1 MICHAEL, and GREGORY, Circuit Judges.
Petition for review granted; agency order and decision vacated and
remanded by published opinion. Judge Michael wrote the opinion, in
which Judge Gregory joined.
COUNSEL
ARGUED: Joseph M. Kum, AMOROW & KUM, P.A., Takoma
Park, Maryland, for Petitioner. Song E. Park, UNITED STATES
1
Judge Luttig heard oral argument in this case but resigned from the
court prior to the time the decision was filed. The decision is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
2 NIBAGWIRE v. GONZALES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Civil Division, Washington, D.C., for Respondent. ON BRIEF: Peter
D. Keisler, Assistant Attorney General, Civil Division, Michelle E.
Gorden, Senior Litigation Counsel, Office of Immigration Litigation,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
OPINION
MICHAEL, Circuit Judge:
When the Department of Homeland Security (DHS) serves an alien
with notice of a removal hearing by regular mail, as allowed by cur-
rent law, the agency is entitled to a presumption of effective delivery.
A removal order was entered against Aimee Nibagwire after she did
not appear at her hearing. She then moved to reopen the proceedings,
asserting that she did not receive the notice to appear sent by regular
mail. In affirming the immigration judge’s denial of Nibagwire’s
motion, the Board of Immigration Appeals (BIA) erred by applying
the delivery presumption for certified mail, the mail delivery method
required by a prior statute. The BIA further erred by holding Nibag-
wire to the evidentiary standard for rebutting the delivery presump-
tion for certified mail. Because the BIA applied the wrong
presumption and rebuttal standard, we vacate the order denying
Nibagwire’s motion to reopen and remand for further proceedings.
I.
Nibagwire is a citizen of Rwanda and a native of the Democratic
Republic of Congo. On January 4, 2003, she entered the United States
on a J-1 non-immigrant visa, which authorized her to stay in this
country until June 1, 2003. Nibagwire remained here past this date
and on June 23, 2003, filed an application for asylum with the DHS
asylum office in Arlington, Virginia. At the time of her application
she was living with two friends, Vianney Rurangwa and Kayinamura
Robert, in an apartment in Adelphi, Maryland. Nibagwire therefore
listed her address with DHS as follows: "c/o Vianney Rurangwa,
1836 Metzerott Road, Apt. No. T15, Adelphi, Maryland 20783." J.A.
20.
NIBAGWIRE v. GONZALES 3
On July 16, 2003, Nibagwire went to the Arlington asylum office
for a scheduled interview with an asylum officer. After the interview
she was instructed to return at 1:00 p.m. on July 30 to "pick up [the]
decision" on her application. J.A. 21. According to Nibagwire, she
appeared on July 30 as instructed, but was told that a decision had not
yet been rendered and that it would be mailed to her. As it turned out,
the asylum office had denied Nibagwire’s application on July 18,
2003. This denial occurred twelve days before her visit to that office
on July 30, the day the agency had designated for her to "appear in
person" and "receive the Asylum Officer’s decision." J.A. 21. The
record contains nothing to explain why the asylum office was unable
on July 30 to advise Nibagwire of its earlier July 18 decision to deny
asylum. In any event, on July 18, 2003, DHS issued a notice to
appear, charging Nibagwire with removability and ordering her to
appear for a hearing before an immigration judge (IJ) in Baltimore on
October 1, 2003.
A certificate of service attached to the notice to appear stated that
it was served on Nibagwire by regular mail. The date stamp on the
joint appendix copy of the certificate is practically illegible. The copy
in the administrative record is not much better, but indicates a mailing
date in a month that begins with the letters "JU." See Certified
Administrative Record at 130, Nibagwire v. Gonzales, No. 04-2254
(4th Cir. filed Nov. 8, 2004). These letters appear to signify part of
the abbreviation for July because the notice to appear was issued on
July 18. The day of the month is unreadable, and the year appears to
be 2003. Nibagwire’s Adelphi, Maryland, address is listed on the
notice, but it omits the line "c/o Vianney Rurangwa" that Nibagwire
included in her asylum application.
Nibagwire did not appear at her scheduled removal hearing on
October 1, 2003. The IJ conducted the hearing in absentia, as permit-
ted by 8 U.S.C. § 1229a(b)(5)(A), and issued an order for Nibag-
wire’s removal. The order was mailed to Nibagwire at the Adelphi,
Maryland, address and delivered there on October 2, 2003. The
address on the envelope did not contain the line "c/o Vianney
Rurangwa."
On October 14, 2003, Nibagwire filed a motion to reopen her
removal proceedings on the ground that she did not receive notice of
4 NIBAGWIRE v. GONZALES
the hearing. In her supporting affidavit Nibagwire offered the follow-
ing account. She did not receive any mail from the DHS at her Adel-
phi, Maryland, address between July 30, 2003, when she was told that
a decision would be mailed to her, and September 29, 2003. She bases
this assertion on the fact that she was present at the Adelphi address
"most of the time" (she was unemployed). J.A. 18. She inquired of the
two friends with whom she was residing at this address, and they told
her they had not received mail addressed to her. Nibagwire moved to
Silver Spring, Maryland, on September 29, 2003, but she "did not
change [her] address with [the DHS] because [she] did not know how
long [she] would be at the new address and [her] former address was
the permanent home of close friends." Id. She learned of the in absen-
tia removal order on October 2, 2003, after Vianney Rurangwa, one
of her friends at the Adelphi address, called and told her that a letter
had arrived for her from the Department of Justice. The next day,
Nibagwire called the immigration court "to ask how a decision could
be made in [her] case" when she had not been sent a notice to appear.
J.A. 19.
The IJ denied Nibagwire’s motion to reopen on October 15, 2003.
"With no apparent return of the notice to appear to the [DHS], there
is a presumption it was delivered," the IJ said. J.A. 13-14. The IJ also
noted that Nibagwire had moved in September 2003 without notifying
the immigration court or the DHS. The IJ concluded that there were
"no exceptional circumstances for the failure to appear." J.A. 14. The
BIA adopted and affirmed the IJ’s decision. In affirming, the BIA
relied exclusively on In re Grijalva, 21 I. & N. Dec. 27 (BIA 1995),
a case that (1) adopted a "strong presumption" of delivery for certified
mail and (2) prescribed an evidentiary standard for rebutting the
delivery presumption for certified mail.
Nibagwire filed a petition for review in this court. We review the
denial of a motion to reopen removal proceedings for abuse of discre-
tion. See INS v. Doherty, 502 U.S. 314, 323 (1992).
II.
An order of removal entered in absentia may be rescinded "upon
a motion to reopen . . . if the alien demonstrates that [she] did not
receive notice" of the hearing. 8 U.S.C. § 1229a(b)(5)(C)(ii). Since
NIBAGWIRE v. GONZALES 5
1996 the DHS has been authorized to serve notice of a removal hear-
ing upon an alien by regular mail. See 8 U.S.C. § 1229(a)(1). When
this (regular mail) method of service is used, as it was in Nibagwire’s
case, the agency is entitled to a presumption of effective delivery. See
Fed. Deposit Ins. Corp. v. Schaffer, 731 F.2d 1134, 1137 n.6 (4th Cir.
1984). The delivery presumption is based on common experience that
"[m]ost letters are delivered, but some aren’t." Joshi v. Ashcroft, 389
F.3d 732, 735 (7th Cir. 2004).
Nibagwire contends that the BIA abused its discretion in her case
by relying on Grijalva, which dealt with certified mail and applied a
strong presumption of delivery. We agree with Nibagwire. Grijalva
is out of date because the controlling statute now allows service by
regular mail.
When the BIA decided Grijalva in 1995, the statute required that
notice served by mail be sent by certified mail. Immigration Act of
1990, Pub. L. No. 101-649, § 545(a), 104 Stat. 4978, 5062 (1991)
(amended 1996). Under a service by certified mail scheme, Grijalva
held that a "strong presumption" of delivery attaches. Grijalva, 21 I.
& N. Dec. at 37. The strong presumption of delivery is justified for
certified mail because of the extra assurances of effective delivery
provided by the U.S. Postal Service. When certified mail is used, the
Postal Service’s delivery efforts are documented: there is a return
receipt or written proof of attempted delivery and notification to the
addressee of certified mail. See id. Accordingly, to overcome the
strong delivery presumption for certified mail, Grijalva required the
alien to "present substantial and probative evidence such as documen-
tary evidence from the Postal Service, third party affidavits, or other
similar evidence demonstrating that there was improper delivery" or
nondelivery. Id. Not long after the BIA decided Grijalva, Congress
enacted the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), which among other things eliminated the certi-
fied mail requirement. Pub. L. No. 104-208, § 304, 110 Stat. 3009-
546, 3009-587 (1997) (codified at 8 U.S.C. § 1229(a)(1)). Under
IIRIRA a notice to appear may be sent to the alien by regular mail.
Id.Grijalva’s evidentiary standard for rebutting the delivery presump-
tion, "which made perfect sense in connection with certified mail,
6 NIBAGWIRE v. GONZALES
clearly ha[s] no application under a regular mail regime." Salta v.
INS, 314 F.3d 1076, 1080 (9th Cir. 2002). If an alien asserting nonde-
livery of regular mail is required to satisfy Grijalva, she will be "vir-
tually without recourse to rebut the presumption of effective
delivery." Ghounem v. Ashcroft, 378 F.3d 740, 744 (8th Cir. 2004).
The type of rebuttal evidence required by Grijalva, such as documen-
tary evidence from the Postal Service, simply does not exist "[i]n the
common case of failed delivery through regular mail." Id. Accord-
ingly, in Nibagwire’s case where the notice was sent by regular mail,
the BIA abused its discretion by applying both the delivery presump-
tion for certified mail and Grijalva’s evidentiary standard for rebut-
ting the presumption. Maknojiya v. Gonzales, 432 F.3d 588, 589 (5th
Cir. 2005) (per curiam); Ghounem, 378 F.3d at 744-45; Salta, 314
F.3d at 1079. On remand the regular mail delivery presumption and
the parallel evidentiary standard for rebutting the presumption must
be used in evaluating the evidence on the receipt of notice issue.
Nibagwire proffers the following evidence in her effort to (1) rebut
the presumption that regular mail is delivered and (2) prove that she
did not receive the notice to appear. DHS records show that in late
June 2003, shortly after her visa expired, Nibagwire filed an applica-
tion for asylum with the DHS, thereby initiating a proceeding to
obtain a benefit (asylum) for herself. She also appeared on July 16,
2003, for her scheduled interview with an asylum officer. See Salta,
314 F.3d at 1079 (noting that similar facts corroborate an asylum
applicant’s assertion that she did not receive a notice to appear for a
formal hearing). A DHS document handed to Nibagwire after her
interview on July 16, 2003, instructed her to return to the asylum
office on July 30 to pick up the decision on her application. Nibag-
wire asserts additional facts in her affidavit: when she returned to the
asylum office on July 30, 2003, she was told that she would receive
a decision by mail; she did not receive notice of her removal hearing
set for October 1, 2003; specifically, between July 30 and September
29, 2003, she did not receive any mail from the DHS at the Adelphi,
Maryland, address that she had provided the agency; she was unem-
ployed and therefore present at the Adelphi address most of the time,
and she asked her two friends with whom she was staying in Adelphi
whether she had received any mail; her friends reported that they had
not seen any mail addressed to her; although she moved to Silver
Spring, Maryland, on September 29, 2003, she did not register a new
NIBAGWIRE v. GONZALES 7
address with the DHS because she did not know how long she would
be in Silver Spring, and the Adelphi address was the address of close
friends;2 on October 2, 2003, one of her Adelphi friends called to
report that she had gotten a letter from the Department of Justice;
Nibagwire immediately picked up the letter, which said that she had
failed to appear at the October 1 hearing and that a removal order had
been entered against her; and, on October 3, 2003, she called the
immigration court "to ask how a decision could be made in [her] case
without sending [her] a notice," J.A. 19. See Joshi, 389 F.3d at 736(noting that a similar affidavit supports a claim of nonreceipt of a
notice to appear); Ghounem, 378 F.3d at 745 (same).
Nibagwire’s proffer is sufficient to warrant the BIA’s consideration
of whether she can (1) rebut the presumption that regular mail is
delivered and (2) "demonstrate[ ] that [she] did not receive notice" of
her removal hearing. 8 U.S.C. § 1229a(b)(5)(C)(ii). Accordingly, we
grant the petition for review, vacate the BIA’s order affirming the IJ,
and remand to the BIA for further consideration of Nibagwire’s
motion to reopen her removal proceedings.
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED
2
The IJ, in denying Nibagwire’s motion to reopen, noted that she had
moved in September 2003 without notifying the immigration court or the
DHS. It does not appear that Nibagwire’s failure to supply her new
address prevented her from receiving the notice to appear because the
blurry copy of the certificate of service indicates that the notice was
mailed in July 2003, well before her September 29 move and her October
1 hearing.