Adeeyemoh, Emanuel v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2640
EMANUEL ADEYEMO,Œ
Petitioner,
v.
JOHN D. ASHCROFT,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A72 104 755
____________
ARGUED APRIL 21, 2004—DECIDED SEPTEMBER 2, 2004
____________
Before COFFEY, MANION, and KANNE, Circuit Judges.
KANNE, Circuit Judge. The petitioner in this immigration
case, Emanuel Adeyemo, claims that he did not receive
notice of his deportation hearing. The government sent the
initial Order to Show Cause by certified mail to the correct
address, but Adeyemo has presented evidence that the
Œ
The petitioner’s last name is spelled “Adeeyemoh” in the de-
cisions of the Immigration Judge and the Board of Immigration
Appeals. We follow the spelling used in the briefs and throughout
most of the administrative record.
2 No. 03-2640
signature on the return receipt is not his. He suggests that
some other resident of his 187-unit apartment building may
have signed for the certified letter but failed to pass it along
to him. Because the government has not adequately shown
that the notice was properly delivered, we grant Adeyemo’s
petition for review.
The case hinges on the distinction between Orders to
Show Cause and Notices of Hearing. Under the pre-1996
version of the Immigration and Nationality Act (INA), an
alien’s initial notice of deportation proceedings was pro-
vided in an Order to Show Cause, which had to be delivered
in person or by certified mail. See INA § 242B(a)(1),
8 U.S.C. § 1252b(a)(1), repealed by Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
§ 308(b)(6), Pub. L. 104-208, 110 Stat. 3009 (Sept. 30, 1996).
Besides informing the alien of the nature of the charges
against him, the Order to Show Cause directed him to
provide the government with a current address to which
further notices could be sent. These included the Notice of
Hearing, informing the alien of the time and place at which
proceedings would be held. See INA § 242B(a)(2), 8 U.S.C.
§ 1252b(a)(2) (repealed 1996).1
The distinction between these two forms of notice is
important because of the differing consequences of
nondelivery. In Matter of Huete, 20 I. & N. Dec. 250, 253
(BIA 1991), the Board of Immigration Appeals held that
when certified mail is used to deliver an Order to Show
Cause, “the certified mail receipt [must] be signed by the
respondent or a responsible person at the respondent’s
address and returned to effect personal service.” In con-
trast, the BIA has held that no such proof of delivery is
required for a Notice of Hearing, but only proof of at-
1
These two forms of notice have since been consolidated into a
single “Notice to Appear,” for which the use of certified mail is no
longer required. See INA § 239(a)(1), 8 U.S.C. § 1229(a)(1).
No. 03-2640 3
tempted delivery. See Matter of Grijalva, 21 I. & N. Dec. 27,
33 (BIA 1995).
In Adeyemo’s case, the Immigration and Naturalization
Service issued an Order to Show Cause in February 1994.
A certified mail receipt, signed on March 8, was returned to
the agency, but the signature on the receipt was illegible. A
later Notice of Hearing was returned as undeliverable. The
hearing was held in February 1995, and when Adeyemo did
not appear, he was ordered deported in absentia.
Seven years later, when Adeyemo found out about this
deportation order, he moved to reopen his deportation
proceedings for lack of notice. He claimed that he did not
receive either the Order to Show Cause or the Notice of
Hearing. The immigration judge denied the motion, declar-
ing that it did not matter whether the documents were
received, so long as there was proof of attempted delivery.
This was, of course, a mistake. The IJ explicitly relied on
the BIA’s decision in Grijalva, not recognizing that the
reasoning of that case is limited to Notices of Hearing, and
does not apply to Orders to Show Cause. See Grijalva,
21 I. & N. Dec. at 32; see also Tapia v. Ashcroft, 351 F.3d
795, 798 n.5 (7th Cir. 2003). Adeyemo pointed out this error
on appeal to the BIA, and presented contemporary exam-
ples of signatures from himself and from his ex-wife
Casandra to show that the signature on the return receipt
was neither his nor that of any responsible person at his
address.
The BIA acknowledged the IJ’s mistake, but nevertheless
concluded that the government had presented sufficient
proof of proper delivery. The Board placed the burden of
proving nonreceipt squarely on Adeyemo:
We do not read the statute or Matter of Huete . . . as
imposing on the Service the burden of establishing that
the postal service had the return receipt signed by
either the respondent himself or a responsible person.
To hold otherwise would allow an alien to thwart
4 No. 03-2640
effective service by altering his or her signature on the
return receipt or by disclaiming knowledge of the
signatory of the return receipt.
Finding “no indication on the face of the [return receipt]
that the person who signed [it] suffered from a legal
infirmity due to either age or mental incompetence,” the
BIA charged Adeyemo with receipt of the Order to Show
Cause. As for the later Notice of Hearing (which had been
returned as undeliverable) the BIA found there was proof
of attempted delivery, which is sufficient under Grijalva for
such notices. The BIA therefore dismissed Adeyemo’s
appeal.
Adeyemo now argues that the BIA wrongly considered the
illegible signature on the certified return receipt to be
adequate proof under Huete that the Order to Show Cause
was properly delivered, and contends that the Board’s
refusal to reopen his deportation proceedings was therefore
an abuse of discretion. The government argues in response
that it is appropriate to presume that the post office carries
out its duties properly—specifically, that the post office
would not deliver the certified mail to an unauthorized
person—and Adeyemo’s evidence that the signature on the
receipt was neither his nor his ex-wife’s is not enough to
overcome this presumption.
Under the former § 242B(c)(1) of the INA, 8 U.S.C.
§ 1252b(c)(1) (repealed 1996), when an alien fails to ap-
pear at a deportation hearing, the government must
establish “by clear, unequivocal, and convincing evidence”
that proper notice was given. The BIA determined in
Huete (and reaffirmed in Grijalva) that when the initial
notice in the Order to Show Cause is sent by certified mail,
proper delivery must be demonstrated by a certified mail
receipt “signed by the respondent or a responsible person at
the respondent’s address.” The BIA noted that “[a]bsent
such a requirement, there is no meaningful distinction
No. 03-2640 5
between service by certified mail and service by regular
mail.” Huete, 20 I. & N. Dec. at 253; see also Grijalva, 21
I. & N. Dec. at 32 (reaffirming Huete’s holding that a
certified mail receipt must be signed by the respondent or a
responsible person at the respondent’s address to accom-
plish personal service of an Order to Show Cause).
In this case, the certified mail receipt was returned with
a signature. The question is whether the government must
show that the signature belonged to Adeyemo or some
responsible person at his address. We recently analyzed a
similar situation in Tapia v. Ashcroft, 351 F.3d 795. In that
case, the government sent an Order to Show Cause by
certified mail to Tapia’s last known address. The return
receipt appeared to bear the signature of Tapia’s adult
sister, who lived with him at that address. Tapia argued
that the government had not shown that the person who
signed the receipt was “responsible.” He did not, however,
have his sister testify that the signature was not hers, nor
did he argue or present evidence that his sister was not in
fact a “responsible person.” We concluded that the govern-
ment had met its burden of showing delivery. Tapia, 351
F.3d at 798.
This case differs from Tapia in two respects. First, in
Tapia there was evidence that the signature belonged to
Tapia’s adult sister; in this case, the signature is almost
completely illegible and does not resemble any of the
signature exemplars provided by Adeyemo and his ex-wife.
Second, Tapia presented no evidence to rebut the govern-
ment’s claim that the signature was his sister’s or that his
sister was a “responsible person”; Adeyemo, in contrast, has
presented evidence that the signature was neither his nor
his ex-wife’s and that there was no other responsible person
living at his address at the time.
The government suggests that Adeyemo’s evidence of
nonreceipt is inadequate. It cites Grijalva for the proposi-
6 No. 03-2640
tions that “a bald and unsupported denial of receipt of
certified mail notices is not sufficient to support a motion to
reopen” and that the presumption of proper delivery can
only be rebutted by “substantial and probative evidence . . .
showing that there was improper delivery.” See Grijalva, 21
I. & N. Dec. at 37. But again, this passage from Grijalva
concerns only Notices of Hearing, to which the return-
receipt requirement does not apply. See id. at 34 (when a
Notice of Hearing is provided by certified mail, “[t]here is no
requirement that the return receipt be signed by the alien
or a responsible person at his address to effect service”)
(emphasis added). In contrast, there is such a requirement
in the context of delivering an Order to Show Cause. See id.
at 32 (when an Order to Show Cause is sent by certified
mail, “the certified mail receipt [must] be signed by the
respondent or a responsible person at the respondent’s
address”).
The illegible signature on the return receipt in this case
is not enough to create a presumption of actual delivery to
Adeyemo or a responsible person at his address. We
therefore GRANT the petition for review and REMAND the
case for further proceedings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-2-04