Al Mutarrev v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HANI ABDULMALEK AL MUTARREB,  No. 04-75676
Petitioner,
D.C. No.
v.
 Agency No. A077-
ERIC H. HOLDER, JR., Attorney 821-065
General,
OPINION
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals
Argued and Submitted
December 11, 2008—San Francisco, California
Filed April 6, 2009
Before: A. Wallace Tashima, Marsha S. Berzon and
N. Randy Smith, Circuit Judges.
Opinion by Judge Berzon
4111
4114 AL MUTARREB v. HOLDER
COUNSEL
Robert B. Jobe and Katherine M. Lewis (argued), Law Office
of Robert B. Jobe, San Francisco, California, for the peti-
tioner.
Gregory G. Katsas, David M. McConnell, and Patrick J.
Bumatay (argued), U.S. Department of Justice, Washington,
D.C., for the respondent.
OPINION
BERZON, Circuit Judge:
Hani Abdulmalek Al Mutarreb, a native and citizen of
Yemen, was ordered removed in absentia and moved to
reopen his proceedings. The immigration judge (“IJ”) denied
his motion to reopen, and the Board of Immigration Appeals
(“BIA”) affirmed the IJ’s denial. Al Mutarreb petitions for
review. He maintains that he did not receive notice of the pen-
dency of proceedings in accordance with 8 U.S.C.
§ 1229(a)(1)(F), and argues that his motion to reopen should
have been granted for that reason. Al Mutarreb also submits
that the agency’s finding of removability was either procedur-
ally improper, or unsupported by substantial evidence. We
reach only the latter contention. Because the record contains
no evidence relevant to the charge of removability, we grant
the petition for review and remand to the BIA with instruc-
tions to vacate the removal order.
I. FACTS AND PROCEDURAL HISTORY
Al Mutarreb was admitted to the United States on August
25, 1998, on an F-1 (student) visa. His visa allowed him to
remain in the United States until August 20, 1999, for the pur-
pose of studying at Contra Costa Community College in San
Pablo, California.
AL MUTARREB v. HOLDER 4115
In August or September of 1999, Al Mutarreb submitted an
asylum application to the former Immigration and Naturaliza-
tion Service,1 stating that he feared persecution if he returned
to Yemen. After an interview with an asylum officer in Octo-
ber 1999, Al Mutarreb received a Notice of Intent to Deny his
application and submitted a rebuttal to the Notice, but
received no response from the Service. A year and a half later,
on April 3, 2001, the Service commenced removal proceed-
ings against Al Mutarreb by issuing a Notice to Appear
(“NTA”). The NTA charged that Al Mutarreb was removable
under 8 U.S.C. § 1227(a)(1)(C)(i) (“Nonimmigrant status vio-
lators”) because he had not attended Contra Costa Community
College “from August 20, 1999 to Present,” and so failed to
comply with the terms of his F-1 status. The NTA directed Al
Mutarreb to appear in Immigration Court for a removal hear-
ing on May 9, 2001.
It is undisputed that Al Mutarreb did not receive the NTA.
The Service sent the NTA via certified mail to a P.O. Box
address that Al Mutarreb had provided in a previous filing,
but the envelope was returned to the Service on May 4, 2001,
bearing the stamp “unclaimed.” The Service did not attempt
to re-send the NTA to Al Mutarreb’s street address (which Al
Mutarreb had also provided in the same previous filing). Nor
did the Service send a copy of the NTA to Al Mutarreb’s
counsel of record, Elias Shamieh, as Al Mutarreb argues the
regulations require it to do. See 8 C.F.R. § 292.5(a)
(“Whenever a person is required by any of the provisions of
this chapter to . . . be given notice . . . such notice . . . shall
be given . . . to . . . the attorney or representative of record,
or the person himself if unrepresented.”).
1
The Immigration and Naturalization Service, or “INS,” was dissolved
in 2002 by the Homeland Security Act, Pub. L. No. 107-296 § 101(a)
(2002). Under the Act, most of the INS’s functions were transferred to
various components of the newly constituted Department of Homeland
Security (“DHS”). For simplicity’s sake, we use the term “the Service” to
refer to both the former INS and the current DHS.
4116 AL MUTARREB v. HOLDER
Because neither Al Mutarreb nor his representative
received the NTA, neither was aware of the pendency of
removal proceedings or the date of the hearing. Not surpris-
ingly, neither Al Mutarreb nor his attorney appeared in Immi-
gration Court on May 9, 2001. The Service thereupon asked
the IJ to proceed with the removal hearing in absentia, pursu-
ant to 8 U.S.C. § 1229a(b)(5)(A). The IJ did so. There is no
transcript of the proceedings. At the close of the proceedings,
the IJ signed a computer-generated order directing that Al
Mutarreb be removed to Yemen “on the charge contained in
the Notice to Appear.” Notably, the IJ failed to check either
of the two boxes on the computer-generated order that would
indicate whether her finding of removability was supported by
“the respondent[’s] admi[ssion of] the factual allegations” at
a prior hearing, or “documentary evidence [submitted by the
Service] . . . which established the truth of the factual allega-
tions.”
The Immigration Court sent a copy of the removal order to
Al Mutarreb. The record does not indicate which address or
method of mailing the Service used this time, but it is clear
that the removal order, unlike the NTA, did reach Al Mutar-
reb. Shortly after receiving the removal order, Al Mutarreb
filed a motion to reopen with the Immigration Court, which
the IJ denied.2
Appealing the denial of his motion to reopen to the BIA, Al
2
Initially, in his first motion to reopen, Al Mutarreb argued that his
notice of the pendency of proceedings was statutorily deficient because the
Service sent his NTA to an incorrect address, as he surmised it must have
done, rather than to his P.O. Box. Because, in fact, the NTA had been sent
to Al Mutarreb’s P.O. Box, the IJ denied the first motion to reopen. Al
Mutarreb appealed that denial to the BIA, but then filed a second motion
to reopen with the IJ, in which he conceded that the Service mailed his
NTA to the correct address, but raised the notice arguments now before
us. This second motion to reopen was transferred to the BIA and consoli-
dated with his pending appeal of the IJ’s denial of his first motion to
reopen, and is now before us.
AL MUTARREB v. HOLDER 4117
Mutarreb conceded that the Service had mailed his NTA to
his current P.O. Box address, but argued that the Service’s
attempt at notice did not meet the requirements of the Immi-
gration and Nationality Act (“INA”) § 239(a)(1)(F), codified
at 8 U.S.C. § 1229(a)(1)(F), and that the IJ was therefore
without authority to conduct proceedings in absentia.3 The
BIA rejected Al Mutarreb’s argument, holding that the Ser-
vice’s attempt at notice was statutorily sufficient and that
reopening was therefore not merited.
Al Mutarreb filed a petition for review with this Court.
Before argument, the parties stipulated to a remand “for the
sole and limited purpose of considering the issue of Petition-
er’s [remov]ability.” We granted the joint motion and
remanded to the BIA. Al Mutarreb v. Ashcroft, No. 02-74177
(9th Cir. Feb. 25, 2004) (order).
On remand, the BIA took the view that the IJ’s failure to
check either box “appears to be a clerical oversight,” and rea-
soned that, even though the IJ’s factual findings are not indi-
cated on the face of the order, one can infer from the order of
removal that the IJ must have made the factual finding neces-
sary to sustain the removability charge — namely, that Al
Mutarreb failed to comply with the terms of his student visa.
The BIA then concluded that the IJ’s imputed factual finding
is supported by a single piece of evidence in the record: Al
Mutarreb’s asylum application, which, in response to the
instruction “Provide the following information about your
3
U.S.C. § 1229a(b)(5)(A), which authorizes IJs to conduct in absentia
proceedings in certain situations, states that an alien who fails to appear
may be ordered removed in absentia only “if the Service establishes by
clear, unequivocal, and convincing evidence that . . . written notice was
. . . provided [by the Service] . . . at the most recent address provided [by
the alien] under [INA] section [239](a)(1)(F) of this title.” Section
§ 239(a)(1)(F), in turn, lists specific warnings and advisals that an NTA
must contain, which pertain to the special address-updating obligations of
aliens in removal proceedings, and the repercussions facing them if they
do not comply. 8 U.S.C. § 1229(a)(1)(F). See infra, Section II(A).
4118 AL MUTARREB v. HOLDER
education, beginning with the most recent: Name of School,
Type of School, Location, [Dates] Attended,” does not list
any educational experience in the United States. The BIA held
that this lack of information, without more, supports an infer-
ence that Al Mutarreb did not attend Contra Costa Commu-
nity College as his visa required.
Al Mutarreb filed a timely petition for review with this
Court.
II. ANALYSIS
Al Mutarreb’s removal order qualifies as a “final order of
removal” over which this Court has jurisdiction pursuant to 8
U.S.C. § 1252(a)(1). Because his removal order was entered
in absentia, our review is also governed by an additional pro-
vision of the INA, 8 U.S.C. § 1229a(b)(5)(D). This provision
specifies that circuit courts “shall” have jurisdiction to review
the following three aspects of in absentia orders: “(i) the
validity of the notice provided to the alien, (ii) the reasons for
the alien’s not attending the proceeding, and (iii) whether or
not the alien is removable.” Id. The first and third aspects are
at issue here. Al Mutarreb submits that he did not receive
proper notice of his removal proceedings, and, in the alterna-
tive, that the IJ’s removal order is unsupported by a valid
administrative finding that he is removable as charged. If he
prevails on either claim, we must grant his petition for review.
We address Al Mutarreb’s claims in turn.
A. Notice
In the context of removal proceedings, notice is first
accomplished through an NTA, which advises the alien that
removal proceedings have begun, alerts him to the charges
against him, and informs him of the date and location of the
hearing.4 It is undisputed that Al Mutarreb did not actually
4
Separate from the NTA are so-called “hearing notices,” which are used
to alert aliens to changes in hearing time or location when necessary. See
8 U.S.C. §§ 1229(a)(1) (regarding NTAs), 1229(a)(2) (regarding hearing
notices).
AL MUTARREB v. HOLDER 4119
receive an NTA. Our question is whether Al Mutarreb can be
fairly charged with having received notice, consistent with the
requirements of the INA and due process.
[1] The INA permits service of NTAs and hearing notices
either in person or by mail. 8 U.S.C. § 1229(c). Service by
mail is statutorily sufficient so long as the notice was sent to
“the last address provided by the alien in accordance with
subsection (a)(1)(F) of this section.” Id.; see also 8 U.S.C.
§ 1229a(b)(5)(A) (authorizing IJs to enter removal orders in
absentia only “if the Service establishes by clear, unequivocal,
and convincing evidence that . . . notice was . . . provided at
the most recent address provided under section 1229(a)(1)(F)
of this title.”). What it means to be an address “provided
under section 1229(a)(1)(F),” in turn, was the focus of Matter
of G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001) (en banc), which
held that an alien can be said to have “provided” his address
to the Service “under” § 1229(a)(1)(F) only if he has actually
received, or can be fairly charged with receiving, the specific
advisals and warnings enumerated at § 1229(a)(1)(F)5 regard-
ing the consequences of his failure to provide and update his
address once removal proceedings have begun. That advisal
is usually conveyed to an alien for the first time in an NTA.
G-Y-R-, 23 I. & N. Dec. at 187. Because the parties agree that
Al Mutarreb never actually received his NTA, G-Y-R-’s appli-
cation in this case turns upon whether Al Mutarreb can be
“properly charged” with having received notice. Id. at 189.
The parties agree that whether an alien is properly charged
with receiving an NTA he did not in fact get requires a due
process inquiry — whether the method of service is “ ‘reason-
ably calculated, under all the circumstances, to appri[s]e inter-
5
U.S.C. § 1229(a)(1) lists specific pieces of information that must be
contained in the NTA, including, at subsection (F), “The requirement that
the alien must immediately provide (or have provided) the Attorney Gen-
eral with a written record of an address and telephone number (if any) at
which the alien may be contacted respecting proceedings under section
1229a of this title.”
4120 AL MUTARREB v. HOLDER
ested parties of the pendency of the action.’ ” Matter of
M-D-, 23 I. & N. Dec. 540, 542 (BIA 2002) (quoting Mullane
v. Centr. Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950)); accord Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.
1997).
Al Mutarreb argues that the method of service employed
was not reasonably calculated to reach him. After the NTA
was returned as “unclaimed,” Al Mutarreb points out, the Ser-
vice made no attempt to send the notice to Al Mutarreb’s
street address (which Al Mutarreb had provided to the Service
as an alternative to his P.O. Box). Nor did it mail a copy of
the NTA to his counsel of record, Elias Shamieh, as Al
Mutarreb argues 8 C.F.R. § 292.5(a) requires. Instead, the
Service affirmatively requested that proceedings go forward
without Al Mutarreb. Compare Jones v. Flowers, 547 U.S.
220, 225 (2006) (holding that when the state sends a letter
threatening a tax foreclosure via certified mail, and the letter
is returned unclaimed, due process requires that the state take
“additional reasonable steps to attempt to provide notice to
the property owner before selling his property, if it is practica-
ble to do so.”).
Al Mutarreb also maintains that the Service was required to
serve the NTA on his counsel of record, pointing to 8 C.F.R.
§ 292.5(a) (“Whenever a person is required by any of the pro-
visions of this chapter to . . . be given notice . . . such notice
. . . shall be given . . . to . . . the attorney or representative of
record, or the person himself if unrepresented.”). Other provi-
sions of the statute and regulations, however, use the disjunc-
tive “or,” which the government suggests means that the
Service may always send an NTA to either the alien or his
counsel, regardless of 8 C.F.R. § 292.5(a). See 8 U.S.C.
§ 1229(a)(1) (“if personal service is not practicable, [notice
shall be effected] through service by mail to the alien or to the
alien’s counsel of record, if any”) (emphasis added); see also
8 C.F.R. §§ 1003.13, 1003.26(c)(2). Whether 8 C.F.R.
§ 292.5(a) requires the Service to serve an NTA on an alien’s
AL MUTARREB v. HOLDER 4121
counsel — if he has one and has so notified the Service — is
an unsettled question in this Circuit.6
[2] These are substantial questions, but we need not resolve
either of them today. Assuming that notice was sufficient and
that the IJ was therefore statutorily authorized to conduct pro-
ceedings in absentia, we hold, for the reasons explained
below, that the resulting removal order is nevertheless invalid.
B. Removability
[3] IJs are statutorily authorized to order aliens removed in
absentia only “if the Service establishes by clear, unequivocal,
and convincing evidence that . . . the alien is removable” as
charged in the NTA. 8 U.S.C. § 1229a(b)(5)(A). Our task on
a petition for review is to decide whether substantial evidence
supports the IJ’s finding that the Service met its high burden
of proving removability. See Hernandez-Guadarrama v. Ash-
croft, 394 F.3d 674, 679 (9th Cir. 2005).
6
In past cases, we have held that service of a hearing notice on an
alien’s counsel, and not on the alien himself, may be a sufficient means
of providing notice of the time and location of removal proceedings. See,
e.g., Garcia v. INS, 222 F.3d 1208 (9th Cir. 2000) (per curiam) (finding
no due process violation when notice was personally served on petitioner’s
counsel at the conclusion of a master calendar hearing). We have never
held the converse, however: that serving a hearing notice on an alien, but
not on his counsel of record, is sufficient. Cf. Dobrota v. INS, 311 F.3d
1206 (9th Cir. 2002) (holding that the INS’s mailing a hearing notice to
an alien’s last known address, but not to his attorney, violated the alien’s
due process rights, because the alien reasonably relied on statutory and
regulatory language not relevant here that suggested his counsel would
receive copies of all such notices). Nor have we resolved the regulation’s
meaning in the context of NTAs, rather than hearing notices. But cf.
Mendez v. INS, 563 F.2d 956 (9th Cir. 1977) (holding that the failure to
notify alien’s counsel of an order to appear for deportation violated the
alien’s statutory right to counsel); id. at 958 n.1 (“[N]otice [to an alien’s
counsel] is required by 8 C.F.R. § 292.5(a), and failure to adhere to such
published regulations may deny due process of law.”) (internal quotation
marks and citation omitted).
4122 AL MUTARREB v. HOLDER
[4] Al Mutarreb argues that the IJ failed to make any fac-
tual findings to support the removal order, and that the BIA
improperly engaged in factfinding of its own to uphold the
IJ’s order. Al Mutarreb is correct that the BIA is not autho-
rized to find facts in the course of deciding appeals. See 8
C.F.R. § 1003.1(d)(3)(i), (iv); Matter of Adamiak, 23 I. & N.
Dec. 878, 880 (BIA 2006).
[5] As the government points out, however, the computer-
generated order signed by the IJ allows for only two possibili-
ties: either “[a]t a prior hearing the respondent admitted the
factual allegations in the Notice to Appear and conceded
removability,” or “[t]he . . . Service submitted documentary
evidence relating to the respondent which established the truth
of the factual allegations contained in the Notice to Appear.”
Because there was no “prior hearing” in Al Mutarreb’s case,
the only possibility is that the IJ found sufficient evidence in
the record to support the removal “on the charge[ ] contained
in the Notice to Appear.” Id. The NTA contained only one
charge of removability: Al Mutarreb’s alleged failure to
attend Contra Costa Community College “from August 20,
1999 to Present.” What the BIA appears to have done is to
infer that the IJ found the only thing she could have found to
support the removal order she issued — that the Service had
presented documentary evidence establishing that Al Mutar-
reb failed to attend Contra Costa Community College during
the dates provided in the NTA. We need not decide whether
the BIA stepped outside its statutorily authorized role in
drawing that inference, because even if it did not — that is,
even if the IJ did make the finding that Al Mutarreb was
removable as charged — the record contains not an iota of
evidence, let alone substantial evidence, to support the IJ’s
removability finding.
The sole ground of removability charged in the NTA was
Al Mutarreb’s alleged failure to attend Contra Costa Commu-
nity College from August 20, 1999, to April 3, 2001 (the date
on which the NTA was issued). The BIA affirmed the IJ’s
AL MUTARREB v. HOLDER 4123
finding that “DHS [had] met its burden of establishing [Al
Mutarreb’s] removability.” Yet, the evidence in the record
could not possibly have established Al Mutarreb’s removabil-
ity as charged in the NTA. The only evidence in the record to
which the Service pointed before the IJ to support this allega-
tion — indeed, the only evidence to which it could have
pointed — is Al Mutarreb’s asylum application, which lists
his educational history. In the application, Al Mutarreb pro-
vided information about his schooling in Yemen, but nothing
regarding his schooling, if any, in the United States. The gov-
ernment argues that Al Mutarreb’s failure to list any academic
history in the United States supports an inference that he did
not attend Contra Costa Community College during the dates
charged in the NTA.
[6] This inference is simply unsupportable. Al Mutarreb
completed and filed his asylum application in August or Sep-
tember of 1999. The charge in the NTA, by contrast, specifi-
cally deals with the period from August 20, 1999, to April 3,
2001 — after his asylum application was completed and filed.7
No reasonable adjudicator could have found Al Mutarreb
removable as charged when the only evidence proffered in
support of the charge relates to an irrelevant time period.
[7] The government now makes what is essentially a harm-
less error argument, suggesting that even if the charge as writ-
ten in the NTA cannot be sustained on appeal, we should
nevertheless affirm the removal order on an alternative
ground. The record shows that Al Mutarreb’s student visa was
set to expire on August 20, 1999, so his presence in the
United States, the government urges, would have been unlaw-
7
Because the asylum application covers a time period that does not
overlap with the charged period, omissions in the application are simply
not relevant to the charge. Therefore, we need not decide whether an omis-
sion — the mere fact that Al Mutarreb left out any reference to Contra
Costa Community College in listing his educational history — constitutes
“clear, unequivocal, and convincing evidence” that he did not attend
classes there for the period covered by his visa.
4124 AL MUTARREB v. HOLDER
ful after that date, and would have supported a finding of
removability had the Service so charged. Aside from the seri-
ous due process concerns that would arise if we were to
affirm a removal order on a ground introduced only on appeal
and not raised or litigated below, see Alvarez-Santos v. INS,
332 F.3d 1245, 1252 (9th Cir. 2003), the government’s argu-
ment fundamentally misunderstands the nature of our review.
Whatever the grounds on which Al Mutarreb might have been
found removable, only one was charged. We have no power
to affirm the BIA on a ground never charged by the Service
or found by the IJ. See SEC v. Chenery Corp., 332 U.S. 194,
196 (1947) (noting that a “court is powerless to affirm the
administrative action by substituting what it considers to be a
more adequate and proper basis” not relied on by the agency);
see also Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107
(9th Cir. 2006) (holding that an alien’s prior “possession con-
viction cannot sustain the removal order because it was not
alleged in the NTA”).8
[8] Nor do we accept the government’s contention that Al
Mutarreb’s failure to appear and contest his removability prej-
udiced the Service in some way that warrants ignoring the fair
8
Similarly, we have rejected the argument that a criminal conviction
that might have served as a ground of removability, but that was not the
basis for the IJ’s removal order, precludes our review of that removal
order under the INA’s jurisdiction-stripping provision at 8 U.S.C.
§ 1252(a)(2)(C) (“[N]o court shall have jurisdiction to review any final
order of removal against an alien who is removable by reason of having
committed [certain criminal offenses]”). In Alvarez-Santos, we held that
because “a person is not ‘removable’ on a particular basis unless or until
the IJ determines that he is,” 8 U.S.C. § 1252(a)(2)(C) deprives us of juris-
diction to review a final order of removal only if that order is based on an
administrative finding that the alien is removable for having committed
the covered criminal offense. 332 F.3d at 1251. See also Chowdhury v.
INS, 249 F.3d 970, 974-75 (9th Cir. 2001) (because alien’s “conspiracy
conviction was not specified [as a ground of removability] in the Notice
to Appear, [it] cannot serve as an independent basis for affirming the
BIA’s decision” by triggering the jurisdictional bar at 8 U.S.C.
§ 1252(a)(2)(C)).
AL MUTARREB v. HOLDER 4125
notice concerns that require the Service to prove what it has
charged, not something else. The government asserts that, had
Al Mutarreb “attended the removal proceeding as he was obli-
gated to do,” it would quickly have become apparent that the
charge contained in the NTA was incoherent and probably
erroneous, and the Service could have corrected it. Yet, when
Al Mutarreb did not appear at his scheduled hearing, the Ser-
vice affirmatively asked the IJ to proceed in absentia. At that
hearing, during which the Service argued its case before the
IJ and presented evidence to meet its burden of proof, the Ser-
vice was required to establish Al Mutarreb’s removability “by
clear, unequivocal, and convincing evidence.” 8 U.S.C.
§ 1229a(c)(5)(A). At any time prior to the entry of the
removal order, the Service could have sought a continuance
to amend the NTA or issue additional charges. See 8 C.F.R.
§ 1003.29 (“The Immigration Judge may grant a motion for
continuance for good cause shown.”); id. § 1003.30 (“At any
time during deportation or removal proceedings, additional or
substituted charges of deportability and/or factual allegations
may be lodged by the Service in writing.”). The Service did
not do so, but instead requested that the IJ sustain the charge
as written in the NTA. That the Service made that choice
instead of correcting its own mistake cannot be ascribed to Al
Mutarreb.9
9
If the Service had discovered its error during the hearing and attempted
to amend the NTA on the spot to state additional charges, both the INA
and due process would likely have required that the proceedings be contin-
ued while the Service issued written notice of the new charges, as Al
Mutarreb was not present at the hearing to be notified in person. See for-
mer 8 C.F.R. § 240.10(e), now designated at 8 C.F.R. § 1240.10(e) (“At
any time during the proceeding, additional or substituted charges of inad-
missibility and/or deportability and/or factual allegations may be lodged
by the Service in writing. The alien in removal proceedings shall be served
with a copy of these additional charges and allegations. The immigration
judge shall read the additional factual allegations and charges to the alien
and explain them to him or her. The immigration judge shall advise the
alien, if he or she is not represented by counsel, that the alien may be so
represented, and that he or she may be given a reasonable continuance to
respond to the additional factual allegations and charges.”); 8 U.S.C.
4126 AL MUTARREB v. HOLDER
In sum, even assuming that Al Mutarreb was properly
charged with having received notice of the pendency of his
proceedings, and assuming further (as the BIA did) that the IJ
did make a finding that Al Mutarreb is removable as charged,
that removability finding is unsupported by substantial evi-
dence. As a result, the IJ was without statutory authority to
order Al Mutarreb removed in absentia under 8 U.S.C.
§ 1229a(b)(5)(A) — which requires that removability be
established by “clear, unequivocal, and convincing evidence”
— and the removal order must be vacated. See Shivaraman v.
Ashcroft, 360 F.3d 1142 (9th Cir. 2004) (vacating removal
order where alien was not removable as charged); Kho-
dagholian v. Ashcroft, 335 F.3d 1003, 1009 (9th Cir. 2003)
(“[F]rom these facts, it cannot reasonably be concluded that
the INS carried its burden by clear, unequivocal, and convinc-
ing evidence . . . . Accordingly, we grant the petition for
review and vacate the order of removal.”); see also Noriega-
Lopez v. Ashcroft, 335 F.3d 874, 884 (9th Cir. 2003) (“[T]he
BIA’s lack of authority to enter Noriega-Lopez’s removal
order renders that component of his proceedings ‘in essence,
a legal nullity.’ ”) (quoting Reynaga v. Cammisa, 971 F.2d
414, 417 (9th Cir. 1992)).
III. CONCLUSION
[9] Our decision to vacate the removal order does not pre-
vent the Service from issuing a new Notice to Appear. But,
because the first NTA was the subject of a final judgment on
the merits, res judicata bars the Service from “initiating a sec-
ond deportation case on the basis of a charge that [it] could
§ 1229(a)(1) (“if personal service is not practicable, [written notice shall
be given] through service by mail . . .” ); see also Lazaro v. Mukasey, 527
F.3d 977, 980-81 (9th Cir. 2008). We have assumed without deciding that
Al Mutarreb was properly charged with notice of the first NTA, but it does
not follow, as the government suggests, that that constructive notice would
carry over to bless any new charges the Service might have wished to
bring later on.
AL MUTARREB v. HOLDER 4127
have brought in the first case,” but did not. Bravo-Pedroza v.
Gonzales, 475 F.3d 1358, 1358 (9th Cir. 2007) (emphasis
added); see also Ramon-Sepulveda v. INS, 824 F.2d 749, 750-
51 (9th Cir. 1987) (per curiam) (holding that res judicata
applies in deportation proceedings). Should the Service decide
to initiate new proceedings against Al Mutarreb based on
facts that have arisen or come to light after his original in
absentia proceeding took place, it will again bear the burden
of proving his removability under 8 U.S.C. § 1229a(c)(3), and
if it prevails, Al Mutarreb will have the opportunity to renew
his asylum application or make any other claims for relief to
which he may be entitled. Id. § 1229a(c)(4).
For the foregoing reasons, the petition for review is
GRANTED.