Juan Jaime Franco v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN MANUEL JAIME FRANCO, No. 15-71484
Petitioner, Agency No. A076-378-250
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 12, 2018
Pasadena, California
Before: SCHROEDER and M. SMITH, Circuit Judges, and CHEN,** District
Judge.
Petitioner was ordered removed in absentia. His motion to reopen, asserting
he did not receive notice of the hearing, was denied by the Immigration Judge
(“IJ”) and the Board of Immigration Appeals (“BIA”). We grant the petition for
review and remand for an evidentiary hearing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
In September 1997, an asylum application was filed for Franco. According
to Franco’s declaration, the application was filed without Franco’s knowledge or
permission by a notary named Edward Lopez. Franco mistakenly believed that
Lopez was an attorney who could help him obtain a work permit. Franco asserts
the Los Angeles address on the application was actually Lopez’s business address,
not Franco’s residence. He now concedes (after declaring to the contrary) that he
signed the application, though he claims he did not know he was signing an asylum
application.
In January 1998, legacy INS sent Franco a Notice to Appear (“NTA”) by
certified mail, ordering him to appear before an IJ in March 1998. The return
receipt shows that the NTA was delivered to the Los Angeles address. The
recipient’s name is not noted on the receipt, and the recipient’s signature is not
Franco’s. Franco states that he did not receive the NTA and that Lopez never
informed him of the NTA. Franco did not appear for his hearing. He was ordered
removed in absentia. He was arrested and removed in November 1998.
In January 2014, Franco moved to reopen and rescind the removal order
based on lack of notice. The IJ denied the motion, and the BIA affirmed. The
BIA’s decision was based on the following: (1) Franco failed to show that he did
not receive the NTA, and the IJ reasonably doubted the veracity of Franco’s
declaration stating otherwise; (2) Franco could be charged with receipt of the NTA,
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because it was sent to the Los Angeles address listed on the asylum application and
the mail was signed as received; (3) Franco failed to rebut certified mail’s
presumption of proper service, because he presented no evidence that delivery was
improper or not attempted; and (4) to the extent the motion was based on
exceptional circumstances, it was untimely. Franco timely appealed.
1. As to actual notice, we review the IJ’s reasoning which was adopted
by the BIA. See Siong v. INS, 376 F.3d 1030, 1036 (9th Cir. 2004). The IJ erred
in refusing to credit Franco’s declaration that he did not receive the NTA. The IJ
cannot discredit a declaration on a motion to reopen simply because it is “self-
serving” or “unsupported.” Bhasin v. Gonzales, 423 F.3d 977, 986-87 (9th Cir.
2005). “We have long held that credibility determinations on motions to reopen
are inappropriate.” Id. at 986 (citing Ghadessi v. INS, 797 F.2d 804, 806 (9th Cir.
1986)). Instead, “facts presented in affidavits supporting a motion to reopen must
be accepted as true unless inherently unbelievable.” Id. at 987 (citing Limsico v.
INS, 951 F.2d 210, 213 (9th Cir. 1991)). Franco’s denial of actual notice was not
inherently unbelievable. Victimization of immigrants by notaries is not
uncommon. See, e.g., Lopez v. INS, 184 F.3d 1097, 1098-99 (9th Cir. 1999);
Garcia v. Gonzales, 179 F. App’x 417, 418 (9th Cir. 2006). Moreover, the NTA
was sent to a business address, not Lopez’s residence, and the signature on the
return receipt is clearly not Franco’s. Franco’s admission that he signed the
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asylum application (after first declaring to the contrary) does not render his entire
declaration inherently unbelievable. See Shouchen Yang v. Lynch, 822 F.3d 504,
508 (9th Cir. 2016).
2. As to constructive notice, the BIA erred in holding that Franco could
be charged with receipt of the NTA because the NTA was mailed to the address
listed on the asylum application. The presumption of delivery of regular mail and
certified mail “presume[s] that postal officers properly discharge their duties.”
Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002). The presumption of delivery to
the specified address does not include a presumption that the address is correct.
See Singh v. Gonzales, 412 F.3d 1117, 1122 (9th Cir. 2005) (although NTA was
mailed to alien’s former address, he could not be charged with constructive notice,
because he had not been instructed to keep his address updated nor informed of the
removal consequences of failing to do so). That the address was provided in the
asylum application does not establish constructive notice. See id. at 1122 (alien
could not be charged with constructive notice of NTA mailed to his former
address, even though he had provided the address in an asylum application); cf. In
re G-Y-R-, 23 I. & N. Dec. 181, 190 (B.I.A. 2001) (alien’s failure to report his
change of address under alien-registration requirements of “section 265 and its
surrounding provisions may incur various penalties, [but] the entry of an in
absentia order of removal is not one of them”).
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3. No relevant statutory presumption applies. Under both 8 U.S.C.
§§ 1229a(b)(5)(A) and 1229(c), written notice is sufficient when sent to an
(a)(1)(F) address, but an (a)(1)(F) address is one requested by the NTA itself. See
§ 1229(a)(1); Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (“[W]hen a respondent is
served with a Notice to Appear, it specifically informs him of the affirmative duty
under section 239(a)(1)(F) of the Act to update his address with the DHS in writing
. . . .”). An initial NTA cannot, by definition, be sent to an (a)(1)(F) address. See
Singh, 412 F.3d at 1121-22 (presumption supplied by § 1229a(b)(5)(A) did not
apply because the alien never received the NTA); In re G-Y-R-, 23 I. & N. Dec. at
187 (“[T]he alien must receive the Notice to Appear before he or she can ‘provide’
an address in accordance with section 239(a)(1)(F) of the Act.”); cf. Chaidez v.
Gonzales, 486 F.3d 1079, 1081, 1084 (9th Cir. 2007) (higher standard for showing
alien’s receipt of initial charging documents in deportation proceedings was
justified, because aliens lack notice that they will receive initial documents at a
particular address, unlike later-sent notices).
4. As to the BIA’s holding that Franco’s assertion of exceptional
circumstances as an independent basis for the motion to reopen was untimely,
Franco declined to pursue that claim on appeal. He therefore waived any challenge
to the untimeliness determination.
For the foregoing reasons, we GRANT the petition for review and
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REMAND to the BIA with instructions to remand to the IJ in order to hold an
evidentiary hearing so that the bona fides of Franco’s claim of lack of actual notice
and related issues may be determined.
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