Elena Smykiene v. Eric Holder, Jr. ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 12-1800, 12-2877
E LENA S MYKIENE,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petitions to Review Orders of
the Board of Immigration Appeals.
No. A075-006-826.
A RGUED JANUARY 18, 2013—D ECIDED F EBRUARY 13, 2013
Before P OSNER, FLAUM, and SYKES, Circuit Judges.
P OSNER, Circuit Judge. Elena Smykiene asks us to set aside
the order of the Board of Immigration Appeals affirming
an immigration judge’s order that she be removed to
Lithuania, and the Board’s subsequent order denying
her petition to reconsider its previous one. (We won’t
have to discuss the second petition, which challenges
the denial of reconsideration and which we hereby
2 Nos. 12-1800, 12-2877
dismiss as moot.) Her petition for review presents ques-
tions concerning orders of removal in absentia.
A Lithuanian national, Smykiene entered the United
States in 1995 on a visitor’s visa. It expired in six months
but she remained. Six months after it expired, in April
1996, she was arrested by U.S. Border Patrol officers in
upstate New York. She was not jailed, but the arresting
officers gave her an order to show cause why she
should not be deported and also told her to provide
them with her address. She gave them the following
address: “4711 St. Joseph Creek Rd., Lisle, IL 60532 (’Lisle
Condo’).” She says this was an apartment house owned
or leased by her employer and that she lived there with
five other Eastern European women, all of whom, like
her, worked as maids. The immigration judge con-
ducted no evidentiary hearing, so the validity of these
contentions has not been determined.
On July 22, 1996, the Immigration Court sent by
certified mail to the address that Smykiene had given
the Border Patrol a notice (called “notice to ap-
pear”) that her hearing before the court would be held
on December 11. The Postal Service returned the mail
to the sender with the notation “Attempted—Not
Known,” which means that delivery was attempted but
that the addressee was not known at the address to
which the letter was delivered. There was no follow-up.
December 11 came, Smykiene did not appear, and the
immigration judge ordered her deported. (What is
now called “removing” was then called “deporting”; in
the rest of this opinion we’ll use the current term.)
Nos. 12-1800, 12-2877 3
She says that a year later she married a man who, two
years after that, became a naturalized U.S. citizen. So
matters stood until November 23, 2010, when immigra-
tion officers showed up at her home (she was still living
in DuPage County, where Lisle is located, but no longer
in Lisle) and told her about the 14-year-old order of
removal. A lawyer hired by her filed a motion to
reopen the removal proceeding and rescind the
removal order on the ground that his client had never
received the notice of the removal hearing. The lawyer
attached an affidavit in which Smykiene swore that
she had not received the notice and that at the time
she was handed the order to show cause she couldn’t
understand English. The affidavit, together with the
notice that the Postal Service returned, is the only
actual evidence in the case; we print her affidavit as
an appendix to this opinion.
We set to one side issues of prosecutorial discre-
tion—they are not our business, though we can’t forbear
to express our puzzlement that the government should
be trying to remove a woman who for all they know
is married to an American citizen and has lived in
this country for 17 years without incident.
An alien cannot be ordered removed from the United
States without notice and an opportunity to be heard.
Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“the Due
Process Clause applies to all ‘persons’ within the United
States, including aliens, whether their presence here is
lawful, unlawful, temporary, or permanent”). The alien
can waive his right to a removal hearing; he does so if
4 Nos. 12-1800, 12-2877
having received notice of the hearing he decides to skip
it; and in that case he can be ordered removed without
a hearing—that is, ordered “in absentia” to be removed.
Sabir v. Gonzales, 421 F.3d 456, 458 (7th Cir. 2005). But if
he never received the notice, there is no waiver and so he
is entitled to reopen the removal proceeding to enable
him to contest removal. Id. at 458-59. An order of removal
in absentia “may be rescinded…upon a motion to reopen
filed at any time if the alien demonstrates that the alien
did not receive notice in accordance with paragraph
(1) . . . of section 1229(a).” 8 U.S.C. § 1229a(b)(5)(C)(ii).
Section 1229(a)(1) provides that “written notice . . . shall
be given in person to the alien (or, if personal service
is not practicable, through service by mail to the alien).”
As explained in Joshi v. Ashcroft, 389 F.3d 732, 736
(7th 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 allows
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, satisfied statutory and constitutional require-
ments, the intended recipient’s affidavit of nonreceipt
is evidence.”
In denying Smykiene’s motion to reopen, the immigra-
tion judge confused notice with receipt, as well as over-
looking our statement in Joshi that an affidavit of
nonreceipt is evidence of nonreceipt. He said that
Nos. 12-1800, 12-2877 5
Smykiene had been “properly…notified of her hearing,”
since the address on the letter returned to sender was
the address she’d given the arresting officer, and that
instead of showing up at the hearing she had “waited
over 14 years before filing a motion to reopen, and did
so only after she was arrested . . . and notified
she would have to report for deportation.” A person is
not “notified” if though notice was sent, it was not re-
ceived. If Smykiene did not receive the notice she
wouldn’t have realized that she’d been ordered
removed and so had better move to reopen. In this court
the government acknowledges that she didn’t receive
the notice.
The immigration judge, in support of his rebuke to her
for “wait[ing] over 14 years before filing a motion to
reopen,” added that she’d “presumptively received” if not
the notice then the actual order of removal, because it
had been mailed to her. But if she didn’t receive the
notice of the hearing, why would she be expected to
have received a subsequent mailing to the same address?
(We don’t know what happened to that second letter.)
The immigration judge pointed out that an alien
“cannot avoid notice by refusing to accept the notice or
by providing an address at which she does not reside.”
And that is true; the alien who evades notice can’t
reopen the removal hearing. Peralta-Cabrera v. Gonzales,
501 F.3d 837, 843-44 (7th Cir. 2007); Sabir v. Gonzales, supra,
421 F.3d at 459; Sanchez v. Holder, 627 F.3d 226, 233-34
(6th Cir. 2010). But there is no evidence that Smykiene
refused to accept the certified letter notifying her of the
6 Nos. 12-1800, 12-2877
removal hearing; had she refused, the Postal Service
would if it followed its customary procedures have
stamped “Refused” on it rather than “Attempted—Not
Known.” Nor is there evidence that she hadn’t given
the arresting officers her actual address (though later
we’ll see there’s a question of the accuracy of the
address she gave) or had otherwise attempted to evade
the notice of hearing. Indeed no evidence concerning
receipt was presented besides the returned letter and
her affidavit, as there was no evidentiary hearing on her
motion to reopen.
Smykiene concedes that proper notice was sent; the
government agrees that it was not received; so the
only question is whether she evaded receipt. Once
nonreceipt is attested in an affidavit and there is no
conclusive evidence of evasion, the alien is entitled to an
evidentiary hearing. Dakaj v. Holder, 580 F.3d 479, 482-83
(7th Cir. 2009) (per curiam); Joshi v. Ashcroft, supra, 389
F.3d at 735; Kozak v. Gonzales, 502 F.3d 34, 37-38 (1st Cir.
2007); Nibagwire v. Gonzales, 450 F.3d 153, 157-58 (4th Cir.
2006); Ghounem v. Ashcroft, 378 F.3d 740, 744-45 (8th
Cir. 2004); Salta v. INS, 314 F.3d 1076, 1079-80 (9th Cir.
2002). We needn’t decide who has the burden of
persuasion if an issue of evasion is raised in the
evidentiary hearing. The Board said in In re Grijalva, 21
I&N Dec. 27, 37 (BIA 1995), that given the “presumption
of effective service” (that is, that mail is usually deliv-
ered), the alien “must present substantial and probative
evidence such as documentary evidence from the Postal
Service, third party affidavits, or other similar evidence
demonstrating that there was improper delivery or that
Nos. 12-1800, 12-2877 7
nondelivery was not due to the respondent’s failure to
provide an address where he could receive mail.” But
this standard, which substitutes a failure, even if com-
pletely innocent, to provide a correct address for evasion
(in the sense of an intentional or reckless avoidance
of receipt) as a ground for waiver of the right to a
hearing, is not alluded to in the Board’s or immigration
judge’s opinions in the present case; and anyway
Smykiene hasn’t been given a hearing at which to
present evidence that might meet the standard of
the Grijalva case.
The confusion evident in the immigration judge’s
opinion carried over to the Board’s decision affirming
him. The Board said that “in light of the documentary
evidence in the record that the NOH [Notice of
Hearing] was sent by certified mail through the U.S.
Postal Service and there is proof of attempted delivery
and notification of certified mail to the respondent, we
agree with the Immigration Judge that the respondent
received proper notice of the hearing. Therefore, the
respondent has failed to overcome the strong presump-
tion of effective service.” In saying this the Board
repeated the immigration judge’s elementary mistake
of confusing notice with receipt. Mail is sometimes
misdelivered. Nothing is known for certain about the
living arrangements in the condo in Lisle, although
Smykiene asserts, thus far without contradiction, that
several Eastern European maids were living there, she
among them. Their English may have been atrocious.
They may have been illiterate in English. They may all
have been living in the same apartment and Smykiene’s
8 Nos. 12-1800, 12-2877
name may not have been on the list of residents posted
(one assumes) at the condo’s entrance. It wouldn’t be
surprising in these circumstances that she hadn’t
received a letter addressed to her.
In parentheses the Board states that an immigration
judge “may rescind an order of removal entered in
absentia if the alien demonstrates that without her own
fault she did not receive notice of her removal hearing”
(emphasis in original). This is offered as a paraphrase
of our holding in the Sabir case, which we cited earlier. It
is an inaccurate paraphrase. The opinion in Sabir, after
noting that “it is undisputed that Sabir did not receive
the notice of his hearing—the record shows that it was
returned to the immigration court marked ‘Attempted-
Not Known,’” asks: “what if, as the IJ speculated, it was
Sabir’s own fault that the notice was not delivered?” Sabir
v. Gonzales, supra, 421 F.3d at 459. The speculation was
“that Sabir thwarted delivery of the notice by changing
the name on his mailbox.” Id. We noted that the change
had not been described and that anyway the Postal
Service considers the name on a customer’s mailbox
irrelevant to delivery. And so the immigration judge
had “erred in denying Sabir’s motion to reopen in the
face of conclusive proof that Sabir did not receive the
notice.” Id. The opinion does not place the burden of
negating evasion on the alien, as the Board in the
present case interpreted it to do.
The Board also faulted Smykiene for having failed to
notify the Immigration Court of her change or changes
of address, as required to do so by the order to show
Nos. 12-1800, 12-2877 9
cause. But there is no evidence that she changed
addresses during the relevant time.
We note one more garble in the Board’s opin-
ion—another misleading parenthetical description of a
holding, this one a holding in its Grijalva decision
cited earlier. The parenthetical states: “a hearing notice
which is sent by certified mail to the alien’s last
known address is sufficient to establish by clear, unequivo-
cal, and convincing evidence that the alien received
notice of the deportation hearing.” (emphasis added).
That is not what the Board said in Grijalva. It said that
mailing notice to the alien’s last known address meets
the statutory requirement of providing notice; it clearly
and correctly distinguished between notice and receipt
of notice. In re Grijalva, supra, 21 I&N Dec. at 34, 36. We
don’t understand how the Board could have missed
this fundamental distinction in the present case.
Compounding confusion gratuitously, Smykiene’s
opening brief asserts that she accidentally failed to give
the Border Patrol officers her full address. She left out
the last four digits of the nine-digit zip code and the
number of her apartment. The first error would have
been inconsequential, but the second would have
increased the probability that she would not receive
the notice. It is odd that her lawyer would assert that
his client had given the Border Patrol an incomplete
address, for that would suggest that the misdelivery of
the notice of hearing was her fault after all; and indeed
the Justice Department’s lawyer pounces on the asser-
tion to support the argument that it was indeed her
10 Nos. 12-1800, 12-2877
fault. But this is to use “fault” in a lay rather than legal
sense. The government cites no authority for the proposi-
tion that an innocent mistake, especially of the kind
likely to be made by a newcomer to the United States
from a non-English-speaking country, forfeits the right
to reopen an order of removal in absentia. Suppose
Smykiene didn’t understand the order to show cause,
and knew only that she had to give the officers her
address. Suppose in doing so she didn’t realize that
her apartment number was part of the address, or that
in her anxiety she simply forgot to include it. Suppose
when she didn’t receive any communication from the
government after her arrest she assumed that the gov-
ernment had decided not to bother with her; arrests
often don’t lead to prosecutions. If these are the circum-
stances—they are consistent with and to a degree sup-
ported by her affidavit—we doubt that the Board would
enforce the in absentia removal order, for it is a grave
matter to eject a person from the United States without
giving her an opportunity to show that she should
be allowed to remain, for example because she has
married an American citizen. Anyway an appellate
brief is not the place to allege new adjudicative facts, as
Smykiene’s lawyer pointlessly did.
Whatever standard Smykiene must meet to reopen
her case, she has been given no opportunity to meet it,
and so the Board’s order must be set aside.
In closing we note our dissatisfaction with the Justice
Department’s advocacy in this case. Its brief states that
Smykiene “needed to at least minimally try to explain
Nos. 12-1800, 12-2877 11
the unsuccessful delivery of her hearing notice, perhaps
by providing some direct or circumstantial evidence
that the address she gave to INS agents in April 1996
was correct and was still the address at which she could
be reached in July 1996 when the hearing notice was
mailed to her.” We’ll forgive the cumbrously split infini-
tive but not that when we pointed out at the oral
argument that Smykiene was given no opportunity
to explain anything, the Justice Department’s lawyer
switched gears and argued that to contest an in absentia
order of removal the alien must plead that she did not
receive the notice to appear, that she was still at the
address to which the notice was mailed, and that she was
not trying to thwart delivery, as by giving a false address
or simply not opening mail that she knew to be from
the Immigration Court (which she might not know, if
indeed she was illiterate in English). But failure to
plead these things was not the ground of the Board’s
decision and has, so far as we have we been told, no
basis in the Board’s case law. So once again the Justice
Department in defending the Board of Immigration
Appeals in a court of appeals has violated the Chenery
doctrine. See, e.g., Sarhan v. Holder, 658 F.3d 649, 661 (7th
Cir. 2011); Atunnise v. Mukasey, 523 F.3d 830, 838 (7th Cir.
2008); Comollari v. Ashcroft, 378 F.3d 694, 696 (7th Cir. 2004);
Carpio v. Holder, 592 F.3d 1091, 1096 (10th Cir. 2010).
The petition for review is granted and the matter
returned to the Board for further proceedings.
12 Nos. 12-1800, 12-2877
A PPENDIX: E LENA S MYKIENE’S A FFIDAVIT
I, Elena Smykiene, do hereby swear and affirm the
following:
1. On April 20, 1996, I was sleeping in a room in the
Budgetel Hotel, in Plattsburgh, New York.
2. At about 6:00 in the morning, I was awakened by a
terrible knock on the door. I didn’t know what was hap-
pening. I thought maybe it there was a fire.
3. When I opened the door, I saw a tall, white blue eyed
man standing there. He said something, but I could not
understand him. I do remember him saying “Immigra-
tion”. I did not speak or understand English at that time.
I spoke only Lithuanian, Polish, Russian, and Ukrainian.
It turned out that he was an immigration officer. He
spoke very angrily. I understood that something was
wrong. He said something else which I did not under-
stand. Finally, he gestured with his hand, and I realized
he wanted me to go with him.
4. We took the elevator to the lobby. There I saw several
other Lithuanians, and two other immigration officers.
5. The immigration officers were saying something, but
I did not understand them. Finally one of the Lithuanians
who understood some English said that we had to show
our documents, and if we did not we would go to jail.
6. I went to my room escorted by the angry man. I gave
him my passport and social security card. He said some-
thing else, which I did not understand. We went back to
the lobby, and the officers said something else. The Lithua-
Nos. 12-1800, 12-2877 13
nian man who knew a little English, explained that we
had to go the Immigration office.
7. I was driven to the Immigration office. There, they
put us all in a separate room.
8. An officer came and starting taking our pictures and
fingerprints, like we were criminals. When my turn
came, the same angry man called my name. He told me
to take a seat next to him. He copied something down
from my passport. He asked me something very angrily,
but I did not understand him. I was very afraid. He
showed me the place where I had to sign. I signed but did
not know or understand what I was signing. There were
two other officers that I saw. None of the officers spoke
to me in a language that I could understand.
9. That same day I called an acquaintance in Chicago.
A Lithuanian man helped me buy a bus ticket to Chicago.
My acquaintance met me at the bus station in Chicago.
10. I did not receive a notice from the Immigration
Court telling me to court to court. I was not told what
would happen if I did not go to Court.
11. When I came to Chicago, I got sick and depressed,
because the incident frightened me very much. Even now
after so many years passing, I cannot forget what hap-
pened to me that day in 1996. I was so very frightened.
12. Immigration officers recently came to my home,
and told me that I have to report to their office on Janu-
ary 11, 2011.
2-13-13