Joshi, Kalpana S. v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-3592, 03-3230
KALPANA S. JOSHI,
Petitioner,
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent.
____________
On Petitions for Review of Orders of
the Board of Immigration Appeals.
No. A 73 577 781
____________
ARGUED OCTOBER 5, 2004—DECIDED NOVEMBER 19, 2004
____________
Before POSNER, KANNE, and WOOD, Circuit Judges.
POSNER, Circuit Judge. This petition to review orders
denying two motions to reopen a removal proceeding
requires us to consider the permissibility of successive
motions to reopen such proceedings and the requirements
for proving nonreceipt of notice of a removal hearing.
The petitioner had entered the United States on a visitor’s
visa. She remained after its expiration but asked for asylum.
On March 3, 1998, the immigration service mailed her by
regular mail to her correct home address a notice to appear
2 Nos. 02-3592, 03-3230
before an immigration judge at a hearing on April 29 to
determine her removability. On March 21 and again on
April 16 she wrote the service asking about the status of her
application for asylum. She sent these letters certified mail
return receipt requested, and received the receipts, showing
that the letters had been duly delivered to the correct
address. There was no response, however, probably because
the letters had been sent to the wrong office.
She did not show up for the hearing on April 29, and so
the immigration judge ordered her, in absentia, removed.
The order was mailed to her home and she received it the
next day. She says that this was the first notice of the
hearing that she had received; that she hadn’t received the
notice mailed on March 3. So she filed a motion to reopen
supported by her affidavit that she had not received notice
of the hearing in advance. The motion was denied and the
Board of Immigration Appeals affirmed the denial. She filed
a subsequent motion with the Board for reconsideration of
its decision. The Board classified it as a motion to reopen
and denied it because she did not provide any supporting
evidence. She filed another motion to reopen, her third,
identical to the second but providing the missing evidence.
Nevertheless this one was also denied, on the basis of the
“number limitations” discussed in the next paragraph. But,
undeterred, she filed still another motion to reopen, and this
time the Board denied it on the substantive ground that her
failure to appear at the hearing was inexcusable.
The parties do not discuss the possible bearing on our
jurisdiction to review the denial of the last motion of the
rule that an alien who having failed to appear at his removal
hearing is ordered (“in absentia”) removed may file only
one motion to reopen, 8 U.S.C. § 1229a(b)(5)(A), unless the
previous motion was denied for purely technical deficien-
Nos. 02-3592, 03-3230 3
cies. Chowdhury v. Ashcroft, 241 F.3d 848, 852-54 (7th Cir.
2001). The Board, while relying on this limitation to deny
the petitioner’s third motion (she asks us to review that
denial as well, but review of it is clearly barred because of
the number limitation), ignored it in denying the second
and deemed it inapplicable to the fourth because of a
regulation, 8 C.F.R. § 1003.2(c)(3)(i), which states that the
“number limitations for motions to reopen do not apply to
a motion pursuant to 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2).” The
latter subsection provides that a motion to reopen may be
made at any time “if the alien demonstrates that he or she
did not receive notice or if the alien demonstrates that he or
she was in federal or state custody and the failure to appear
was through no fault of the alien.” However, as is clear from
the caption, the provision relates not to removal proceed-
ings but to deportation or exclusion proceedings. A separate
provision, 8 C.F.R. § 1003.23(b)(4)(ii), deals with removal
proceedings and does not contain the language on which
the Board relied in ruling that the one-motion limit did not
apply to the petitioner’s fourth motion to reopen; on the
contrary, this provision is explicit that only one motion to
reopen a removal proceeding may be filed. We cannot find
any statutory basis for the Board’s failing to apply the
number limitation to the second and fourth motions, as well
as to the third motion, to which the Board did apply the
limitation. And if the limitation is jurisdictional, then the
fact that the Board did not rely on it and that the govern-
ment does not cite it as a ground for affirming the Board is
of course irrelevant.
But in agreement with the other circuits to take up the
issue, we do not think that the limitation is jurisdictional.
Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002); Socop-
Gonzalez v. INS, 272 F.3d 1176, 1191-93 (9th Cir. 2001) (en
banc); Iavorski v. INS, 232 F.3d 124, 133 (2d Cir. 2000). The
4 Nos. 02-3592, 03-3230
emergent distinction, so far as classification of deadlines as
jurisdictional or not jurisdictional is concerned, is between
those deadlines that govern the transition from one court (or
other tribunal) to another, which are jurisdictional, and
other deadlines, which are not. Brickwood Contractors, Inc. v.
Datanet Engineering, Inc., 369 F.3d 385, 392-93 (4th Cir. 2004)
(en banc); compare Kontrick v. Ryan, 124 S. Ct. 906, 916
(2004); Scarborough v. Principi, 124 S. Ct. 1856, 1864-65 (2004).
A pertinent example is the 30-day limit in 8 U.S.C.
§ 1252(b)(1) on filing a petition for judicial review of a
removal order; it is jurisdictional, Stone v. INS, 514 U.S. 386(1995); Firmansjah v. Ashcroft, 347 F.3d 625, 626 (7th Cir.
2003) (per curiam), because it governs the sequence between
tribunals (the Board of Immigration Appeals and the federal
court of appeals).
The reason for treating the court-sequencing deadlines as
jurisdictional, and thus (the functional significance of the
classification) for not allowing them to be waived or
forfeited, is the importance of preventing indefinitely
deferred appeals, as where a losing party in the district
court files a notice of appeal five years after the final
judgment in that court. Successive motions, addressed to the
same tribunal, to reopen a removal proceeding, while a
bother, do not postpone the taking of an appeal to the court
of appeals from the order of removal. The limitation on the
number of such motions that may be filed is therefore not
jurisdictional.
The Board can, as we noted in our recent decision in
Ahmed v. Ashcroft, No. 03-2620, 2004 WL 2382141 (7th Cir.
Oct. 26, 2004), turn down a motion for reconsideration or a
motion to reopen without reaching the merits if all the
motion does is rehash a previous argument. But that
principle was not invoked by the Board and is not argued
Nos. 02-3592, 03-3230 5
by the government; therefore, not being even arguably a
jurisdictional principle, it is waived.
And so the merits of the Board’s denial of the crucial
fourth motion to reopen are properly before us.
The petitioner does not deny that the notice of her hearing
was mailed to the correct address; she just denies that the
Postal Service delivered it to her. The denial (made under
oath) presents a question of fact. The Board answered the
question against her on the ground that her “uncorrobo-
rated allegation that she did not receive the Notice to
Appear is insufficient to establish that she was not properly
served with the notice.” The Board also said that her claim
“is unsupported by objective evidence.” The Board did not
indicate what it would consider sufficient proof. Two of the
three cases that address the issue hold that an affidavit or
other sworn denial does create a genuine issue of fact.
Ghounem v. Ashcroft, 378 F.3d 740, 744-45 (8th Cir. 2004);
Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002). The third,
however, Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir.
2004), holds that the petitioner’s “mere conclusory state-
ment that he did not receive notice is insufficient to carry his
burden of proof, in light of the presumption to the con-
trary.”
The position of the Ghounem and Salta cases accords
with what appears to be the majority view outside the
immigration context. E.g., Andrews v. Blake, 69 P.3d 7, 14
(Ariz. 2003); In re Longardner & Associates, Inc., 855 F.2d 455,
459 (7th Cir. 1988); Witt v. Roadway Express, 136 F.3d 1424,
1429-30 (10th Cir. 1998); In re Eagle Bus Mfg., Inc., 62 F.3d
730, 735 (5th Cir. 1995); Nunley v. City of Los Angeles, 52 F.3d
792, 796 (9th Cir. 1995); Shur-Value Stamps, Inc. v. Phillips
Petroleum Co., 50 F.3d 592, 596 (8th Cir. 1995); In re The Yoder
Co., 758 F.2d 1114, 1118-19 (6th Cir. 1985); McCormick on
6 Nos. 02-3592, 03-3230
Evidence § 344 (John W. Strong ed., 5th ed. 2003 Pocket Part,
2004); 9 John Henry Wigmore, Evidence in Trials at Common
Law § 2519(B) (James H. Chadbourn ed., rev. ed. 1981). Most
letters are delivered, but some aren’t, and so if there is a
sworn denial of receipt the trier of fact has to weigh the
credibility of the denial in light of the fact that the vast
majority of letters are delivered and that the intended
recipient has a strong incentive to lie.
We doubt whether the Board meant to reject these cases;
it was probably just endorsing the commonsensical proposi-
tion that a bare, uncorroborated, self-serving denial of
receipt, even if sworn, is weak evidence. In re Bucknum, 951
F.2d 204, 206-07 (9th Cir. 1991). Nothing is simpler than
submitting an affidavit in which one attests that one didn’t
receive a particular piece of mail. False swearing unfortu-
nately is common and the deterrent effect of the possibility
of a perjury prosecution for filing a false affidavit in a civil
case is close to nil.
The skeptical approach of the Gurung case might seem
supported by a line of cases that hold that clear and con-
vincing evidence is required to rebut the presumption that
a letter which is mailed to the correct address arrived there.
E.g., In re Bucknum, supra, 951 F.2d at 207; Meckel v. Continen-
tal Resources Co., 758 F.2d 811, 817 (2d Cir. 1985) (a “mere
denial of receipt does not [even] raise a question of fact as to
mailing”); Berkowitz v. Mayflower Securities, Inc., 317 A.2d
584, 585 (Pa. 1974); Southland Life Ins. Co. v. Greenwade,
159 S.W.2d 854, 858 (Tex. 1942); 16 Williston on Contracts
§ 49.80 (Richard A. Lord ed., 4th ed. 2004). But these are
cases about the adequacy of notice by mail, and the ade-
quacy of such notice does not depend on receipt. This is
apparent from the statute authorizing in absentia removal
proceedings—it provides that “service by mail under this
section shall be sufficient if there is proof of attempted
Nos. 02-3592, 03-3230 7
delivery to the last address provided by the alien,” 8 U.S.C.
§ 1229(c) (emphasis added)—and from the cases which hold
that this provision satisfies due process. Nazarova v. INS, 171
F.3d 478 (7th Cir. 1999); Dominguez v. Attorney General, 284
F.3d 1258, 1260 (11th Cir. 2002); Farhoud v. INS, 122 F.3d 794,
796 (9th Cir. 1997); In re M-D-, 23 I. & N. Dec. 540 (BIA
2002); cf. Dusenbery v. United States, 534 U.S. 161, 170 (2002);
Khan v. Ashcroft, 374 F.3d 825 (9th Cir. 2004). The fact that
the intended recipient did not actually receive notice does
not contradict evidence that delivery was attempted and the
notice requirement thus satisfied. But when as in this case
the issue is not notice but receipt, because the statute al-
lows an alien ordered removed in an absentia proceeding to
reopen the proceeding if he did not receive notice even if the
notice that was sent, whether or not it was received, satis-
fied statutory and constitutional requirements, the intended
recipient’s affidavit of nonreceipt is evidence.
It is weak evidence, and so we may assume, though
without having to decide, that the Board of Immigration
Appeals could adopt the approach of the Gurung case and
hold that the intended recipient’s affidavit of nonreceipt is
not by itself sufficient proof of nonreceipt to warrant a new
removal hearing. But, so far as we are aware, the Board
hasn’t adopted that approach.
The result in the present case is to leave the Board out on
a limb. Even if the Board’s error in describing the peti-
tioner’s claim that she didn’t receive notice as a mere
“allegation” is ignored as merely clumsy language, it isn’t
true that the claim was not corroborated, or, what amounts
to the same thing, was not supported by “objective” evi-
dence. The fact that before the date of the hearing she sent
two certified letters to the immigration service inquiring
about the status of her proceeding is some “objective”
evidence, some corroboration, that she hadn’t received
8 Nos. 02-3592, 03-3230
notice of the hearing. See Nunley v. Los Angeles, supra, 52
F.3d at 796. It is inconclusive evidence, but as it was not
even mentioned by the Board we cannot tell whether the
Board thought it outweighed by the statistical likelihood
that correctly addressed U.S. mail is delivered to the
addressee, or simply overlooked it. A decision that resolves
a critical factual question without mention of the principal
evidence cannot be considered adequately reasoned. The
Board’s order is therefore vacated and the case returned to
the Board for further proceedings consistent with this
opinion.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-19-04