Sembiring v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REHSEMPATA SEMBIRING, 
Petitioner, No. 04-74076
v.
 Agency No.
A96-353-121
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
July 13, 2007—Pasadena, California
Filed August 24, 2007
Before: Barry G. Silverman, William A. Fletcher, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge William A. Fletcher
10371
10374 SEMBIRING v. GONZALES
COUNSEL
Rehsempata Sembiring, pro se, Mission Viejo, California;
Caleb E. Mason, California Polytechnic State University,
Pomona, California, for the petitioner.
Jennifer Paisner, Arthur L. Rabin, United States Department
of Justice, Office of Immigration Litigation, Washington,
D.C., for the respondent.
OPINION
W. FLETCHER, Circuit Judge:
Petitioner Rehsempata Sembiring applied for asylum in
May 2003. Now, more than four years later, we evaluate a
petition for review in which she seeks a hearing on that appli-
SEMBIRING v. GONZALES 10375
cation. Sembiring appeared in the Immigration Court on
August 5, 2003, the date originally scheduled for her hearing,
only to find that she had been ordered removed in absentia six
days earlier. The Immigration and Naturalization Service
(now the Department of Homeland Security) contends that it
sent her by regular mail a notice that her hearing had been res-
cheduled to the earlier date. Sembiring contended at the time,
and has contended ever since, that she never received such a
notice.
Under 8 U.S.C. § 1229a(b)(5)(A), an Immigration Judge
must enter a removal order in absentia if the alien fails to
appear for a hearing in a removal proceeding and if the gov-
ernment “establishes by clear, unequivocal, and convincing
evidence that the written notice [required under 8 U.S.C.
§ 1229(a)(1) or (2) has been] provided [to the alien] and that
the alien is removable.” Section 1229(a)(1) and (2) both pro-
vide 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 . . . ).” These provisions have been amended
to authorize the government to use regular first class mail to
fulfill the requirements for “service by mail,” where the origi-
nal provision required the government to use certified mail.
Compare 8 U.S.C. § 1229(a)(1), (2) with 8 U.S.C.
§ 1252b(a)(1) (1995), repealed by Illegal Immigration Reform
and Immigration Responsibility Act of 1996 (IIRIRA), Pub.
L. No. 104-208, div. C, tit. III, § 308(b)(6), 110 Stat. 3009-
546, 3009-615. See generally Salta v. INS, 314 F.3d 1076,
1078-79 (9th Cir. 2002) (discussing the distinctions between
the provisions). Under § 1229a(b)(5)(C)(ii), an alien may
obtain rescission of a removal order entered in absentia at any
time “if the alien demonstrates that the alien did not receive
notice in accordance with” § 1229(a)(1) or (2).
In Salta, we held that the “strong presumption” of effective
service that had applied when service was by certified mail
does not apply to service by regular mail, and that the “fairly
strong evidence” that had been necessary to rebut the “strong
10376 SEMBIRING v. GONZALES
presumption” is not required. Id. at 1079. In this case, we
apply the lesser presumption of effective service applicable to
regular mail. We hold that petitioner Sembiring presented suf-
ficient evidence in the Immigration Court to overcome the
presumption of effective service, and therefore to “demon-
strate[ ] that [she] did not receive notice.” § 1229a(b)(5)
(C)(ii). Moreover, that evidence was credible, corroborated,
and wholly unrefuted by the government. Because Sembiring
demonstrated that she did not receive service, it was an abuse
of discretion for the Immigration Judge to refuse to reopen
proceedings in order to rescind the in absentia removal order.
I. Background
Rehsempata Sembiring entered the United States from
Indonesia on February 28, 2002, under a non-immigrant B-1
visitor visa. On May 3, 2003, Sembiring filed an asylum
application, contending that she feared persecution in Indone-
sia because of her Christian religion. Sembiring contended,
among other things, that friends and family members had
been harmed because of their Christian faith-based practices,
and that she had been “threatened with having her house
burned down” by government officials because of her own
Christian practices. In her asylum application, Sembiring
acknowledged that she had overstayed her visa. She stated
that she did not apply for asylum earlier because she “did not
know about asylum before.” Sembiring listed her current
address on her asylum application.
Sembiring had not been served with a notice to appear
when she applied for asylum. After she submitted her applica-
tion, the Immigration and Naturalization Service (“INS”),
now the Department of Homeland Security, initiated removal
proceedings against her. On July 3, 2003, Sembiring was per-
sonally served with a written notice to appear for removal
proceedings. The notice instructed Sembiring to attend a hear-
ing before an Immigration Judge (“IJ”) on August 5, 2003, at
1:00 p.m.
SEMBIRING v. GONZALES 10377
The administrative record contains a one-page “Notice of
Hearing in Removal Proceedings” rescheduling Sembiring’s
initial hearing to July 30, 2003 — six days earlier. The “Cer-
tificate of Service,” printed at the bottom of the page is in the
same typeface as the notice itself. The Certificate of Service
states, “This document was served by: Mail (M) Personal Ser-
vice (P).” The “M” is circled. Near the “M” is a handwritten
date of July 8, 2003. However, at the top of the page, the
notice itself is dated the next day, July 9, 2003. Sembiring’s
listed address on the one-page notice is the same as the
address provided in her asylum application.
Two identical copies of the one-page rescheduling notice
appear in the administrative record. Immediately following
the first and immediately preceding the second is what
appears to be a photocopy of an envelope. Its placement in the
record suggests that it is the envelope used to mail the notice.
However, the only things that are clearly discernible are the
return address of the Immigration Court in Los Angeles on the
left hand side and some numbers followed by a bar code at the
bottom. There is a faint outline of a portion of a postmark on
the right hand side. There is also a faint outline of what may
be a date stamp in the middle of the envelope where the name
and address of the addressee would ordinarily be written.
Almost nothing is readable, except that the letters “LOS” (as
in “Los Angeles,” perhaps) appear at the beginning of the last
line of the stamp. Sembiring’s address is in Mission Viejo
rather than Los Angeles. There is no indication whatsoever of
a name or address of an addressee anywhere on the envelope.
Sembiring did not appear in the Immigration Court on July
30, 2003. A removal hearing was nonetheless held on that
date, and she was ordered removed in absentia. The removal
order was mailed to the Mission Viejo address listed on Sem-
biring’s asylum application and on the rescheduling notice.
On August 5, 2003, the originally scheduled hearing date,
Sembiring appeared pro se in the Immigration Court. In an
10378 SEMBIRING v. GONZALES
unsworn, signed, typewritten letter to the Immigration Court
dated August 11, 2003, Sembiring described what had hap-
pened. Her letter states:
I request a motion to reopen because, when I show
up on the 5TH of August, the lady in 15th floor told
me that my hearing date was reschedule and I never
got the notice from the mail.
I did receive the notice of removal precedingwh-
ich is I did not understand what it was all about until
I show up to the court on the 5TH of August.
I never receive the first letter saying that my hear-
ing date was reschedule.
Enclosed please find the notice of appearthat show
that my hearin was the 5th of August.
Please reopen my case since I never got / know
that I have to show up on any other date.
(Errors in original.) The letter was filed in the Immigration
Court on August 14, 2003. Immediately following the letter
in the administrative record is a copy of the original notice
scheduling Sembiring’s hearing for August 5, as well as a
copy of the in absentia order of removal dated August 1. We
assume, as did the BIA, that both documents were attached to
Sembiring’s letter.
The IJ construed Sembiring’s pro se letter as a “motion to
reopen” and denied it. Citing our decision in Salta, the IJ
stated that even when certified mail is not used “there still
exists a presumption that the postal officers properly dis-
charged their duties.” The IJ gave two reasons for concluding
that Sembiring’s statement that she did not receive the notice
of the changed hearing date was “unsupported by the evi-
dence presented.” First, the IJ stated that the address on the
SEMBIRING v. GONZALES 10379
rescheduling order was the same as the address provided by
Sembiring in her asylum application, that Sembiring had not
alleged that she had moved, and that she also had not filed a
change of address form. Second, again citing Salta, the IJ
stated that Sembiring had failed to overcome the presumption
of proper delivery because “she did not allege that she com-
monly has problems with receipt of her mail, nor did she sub-
mit any evidence, such as an affidavit, demonstrating that she
failed to receive the notice of hearing.” The IJ stated that
“statements in motions are not evidence and are, therefore,
not entitled to evidentiary weight.”
Sembiring appears to have received the IJ’s denial of her
motion to reopen on August 17. On August 20, she retained
counsel. Her counsel filed a timely notice of appeal of the IJ’s
decision with the Board of Immigration Appeals (“BIA”). He
also submitted to the IJ a motion to reconsider. Attached to
the motion was his own declaration, a declaration by Sembir-
ing, and a handwritten letter by Sembiring. Sembiring’s decla-
ration asserted that she had “never received notice of the reset
date at my address despite the fact that my address has always
remained the same, and I have never refused mail at that
address.” She also declared that when she appeared for her
hearing on August 5, 2003, and the clerk informed her that
she had already been ordered deported, she asked the clerk
what she should do. Sembiring declared that the clerk told her
that she “needed to write a letter to the Judge telling him that
[she] did not receive notice of [her] hearing, and then [her]
case would be reopened.” Sembiring’s handwritten letter,
addressed “To Whom It My [sic] Concern,” was not dated. It
stated that when Sembiring arrived at noon for her 1:00 p.m.
court date on August 5, she was informed that she had been
deported in absentia. The letter explained that the clerk “ask
me to send the letter to the Judge. Ask the Judge a motion to
reopen my file. I immediately followed what I was told to do.
I swear that what I said is the truth.”
The government opposed Sembiring’s motion to recon-
sider, which it described as a motion to reopen, on two
10380 SEMBIRING v. GONZALES
grounds. First, the government argued that the IJ did “not
have jurisdiction to consider Respondent’s motion to reopen.”
Second, the government argued that the motion failed on the
merits. The administrative record contains no indication that
the IJ decided Sembiring’s motion to reconsider.
The BIA affirmed the IJ’s denial of Sembiring’s motion to
reopen, concluding that “notice was properly served on the
respondent in accordance with the Act.” The BIA concluded
that our decision in Salta is “distinguishable” because, unlike
the petitioner in Salta, Sembiring “did not initiate proceedings
and has no record of previous court appearances.” In addition,
“the record of proceedings d[id] not contain the respondent’s
sworn declaration.”
Sembiring filed a petition for review. We have jurisdiction
under 8 U.S.C. § 1252.
II. Standard of Review
In denying Sembiring’s appeal, the BIA cited Matter of
Burbano, 20 I. & N. Dec. 872 (BIA 1994). The BIA thereby
signaled “that it had conducted an independent review of the
record and had exercised its own discretion in determining
that its conclusions were the same as those articulated by the
IJ.” Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005)
(en banc). We review the denial of a motion to reopen for an
abuse of discretion. Movsisian v. Ashcroft, 395 F.3d 1095,
1098 (9th Cir. 2005). “The BIA abuses its discretion when it
acts ‘arbitrarily, irrationally or contrary to the law.’ ” Id.(quoting Lainez-Ortiz v. INS, 96 F.3d 393, 395 (9th Cir.
1996)). The IJ’s findings of fact are reviewed for substantial
evidence and will be upheld “if they are supported by reason-
able, substantial, and probative evidence on the record consid-
ered as a whole.” See Abebe, 432 F.3d at 1039-40 (internal
quotation marks omitted). We review questions of law de
novo. Id. at 1040.
SEMBIRING v. GONZALES 10381
III. Discussion
[1] A notice to appear in removal proceedings “shall be
given in person to the alien,” unless “personal service is not
practicable,” in which case notice may be accomplished “by
mail.” 8 U.S.C. § 1229(a)(1). Before § 1229(a) was enacted as
part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), its predecessor statute
required that mail service be accomplished by certified mail.
8 U.S.C. § 1252b(a)(1) (repealed 1997). In IIRIRA, Congress
relaxed the requirement to allow the government to use regu-
lar mail to serve a notice to appear for a removal hearing.
IIRIRA, Pub. L. No. 104-208, div. C., tit. III, § 304(a)(3), 110
Stat. 3009-546, 2009-587 (1997) (codified at 8 U.S.C.
§ 1229(a)(1)). “[A]ny change or postponement in the time and
place of such [removal] proceedings” is governed by the same
notice requirements as for the initial notice to appear under
§ 1229(a)(1). 8 U.S.C. § 1229(a)(2)(A).
If an alien does not appear at a removal proceeding,
§ 1229a(b)(5)(A) directs the IJ to enter a removal order in
absentia “if the Service establishes by clear, unequivocal, and
convincing evidence that the written notice was . . . provided”
in accordance with § 1229(a)(1) or (2) and that the alien is
removable. An in absentia removal order may be rescinded
“at any time if the alien demonstrates that the alien did not
receive notice” in accordance with § 1229(a)(1) or (2). Id.
§ 1229a(b)(5)(C)(ii). A motion to reopen in order to rescind
a removal order entered in absentia, based on a contention
that notice was not received, “must include documentary evi-
dence.” 8 C.F.R. § 208.2(c)(3)(ii).
A. Background
[2] The evidentiary requirements for an alien to demon-
strate that he or she did not receive notice have changed over
time. Under the pre-IIRIRA version of the statute, the BIA
held that there was “a strong presumption of effective ser-
10382 SEMBIRING v. GONZALES
vice” when there was “proof of attempted delivery and notifi-
cation of certified mail.” In re Grijalva, 21 I. & N. Dec. 27,
37 (BIA 1995); see also Arrieta v. INS, 117 F.3d 429, 432
(9th Cir. 1997) (per curiam) (applying Grijalva and explain-
ing that if petitioner rebuts the presumption, “the burden
shifts” to the government to “show that a responsible party
refused service” of the certified mail). The BIA wrote in Gri-
jalva that an alien could overcome the “strong presumption of
effective service” and establish non-receipt by submitting
“substantial and probative evidence such as documentary evi-
dence from the Postal Service, third party affidavits, or other
similar evidence demonstrating that there was improper deliv-
ery.” 21 I. & N. Dec. at 37.
After IIRIRA relaxed the notice requirement to allow deliv-
ery by regular rather than certified mail, we reassessed the
strength of the presumption of effective service. In Salta, peti-
tioner Salta had asked the INS to issue an “Order to Show
Cause so that she could apply for Cancellation of Removal.”
314 F.3d at 1077. Salta and her counsel attended a removal
hearing, but the hearing was continued because the Immigra-
tion Court had not yet received Salta’s file. Id. The INS then
sent, by regular mail to the address previously provided by
Salta, a notice scheduling the next hearing. Salta did not
attend the next hearing and was ordered removed in absentia.
Id. She filed a motion to reopen the removal proceedings on
the ground that she had not received notice. The IJ denied her
motion because she “had not met her burden” to “demon-
strate[ ] that [she] did not receive notice.” Id.; 8 U.S.C.
§ 1229a(b)(5)(C)(ii).
[3] We concluded in Salta that the IJ and BIA abused their
discretion in applying the “strong presumption of effective
service,” applicable to service by certified mail, to a case in
which service had been made (or attempted) by regular mail.
314 F.3d at 1079. We held that “[a]lthough it is still proper
to presume that postal officers properly discharge their duties,
delivery by regular mail does not raise the same ‘strong pre-
SEMBIRING v. GONZALES 10383
sumption’ as certified mail, and less should be required to
rebut such a presumption.” Id. (citation omitted). We
explained that the evidentiary standard for rebutting the pre-
sumption, “which made perfect sense in connection with cer-
tified mail, clearly ha[s] no application under a regular mail
regime.” Id. at 1080. We also described one means by which
Salta could establish the affirmative defense of non-receipt
under § 1229a(b)(5)(C)(ii) on the facts of her case:
Where a petitioner actually initiates a proceeding
to obtain a benefit, appears at an earlier hearing, and
has no motive to avoid the hearing, a sworn affidavit
from Salta that neither she nor a responsible party
residing at her address received the notice should
ordinarily be sufficient to rebut the presumption of
delivery and entitle Salta to an evidentiary hearing to
consider the veracity of her allegations.
Id. at 1079.
Because we held for the first time in Salta that a weaker
presumption of effective service applies to service by regular
mail, the IJ and BIA had not had a chance to apply the weaker
presumption. We therefore remanded under the new standard
to the BIA “with instructions to remand to the IJ to allow both
Salta and the INS to supplement the record and to conduct an
evidentiary hearing to determine whether Salta should be per-
mitted to re-open” her proceedings. Id.
All other circuits that have addressed the issue, save one,
have followed the approach we adopted in Salta. They require
less evidence to overcome the presumption of effective ser-
vice for notices served by regular mail than for notices served
by certified mail. See Lopes v. Gonzales, 468 F.3d 81, 85 (2d
Cir. 2006) (per curiam); Nibagwire v. Gonzales, 450 F.3d
153, 156 (4th Cir. 2006); Maknojiya v. Gonzales, 432 F.3d
588, 589 (5th Cir. 2005) (per curiam); Joshi v. Ashcroft, 389
F.3d 732, 735 (7th Cir. 2004); Ghounem v. Ashcroft, 378 F.3d
10384 SEMBIRING v. GONZALES
740, 744-45 (8th Cir. 2004). But see Gurung v. Ashcroft, 371
F.3d 718, 722 (10th Cir. 2004) (“[T]he principles [that cases
involving certified mail] espouse regarding the alien’s burden
to refute the presumption of notice apply also to notice by
regular mail . . . .”). In Joshi, Judge Posner explained that the
Seventh Circuit’s application of a lower evidentiary burden to
overcome the presumption when a notice is sent by regular
mail is based on the common experience that “[m]ost letters
are delivered, but some aren’t.” 389 F.3d at 735.
B. Application of Salta
[4] In this case, the government, echoing the reasoning of
the IJ and BIA, argues that Sembiring’s “contention that this
Court’s decision in Salta . . . controls her case is misplaced.”
We disagree. To the extent that the IJ and BIA, and now the
government, are attempting to confine Salta to its particular
facts, they are misreading our decision. Salta announced, as
a general rule, that the presumption of effective service of
notices to appear by regular mail is weaker than the presump-
tion when applied to delivery by certified mail. 314 F.3d at
1078-79. Sembiring’s notice to appear that rescheduled her
hearing was sent via regular mail (if it was sent at all), so the
weaker presumption announced in Salta applies to Sembir-
ing’s case.
Under Salta, less evidence is required to overcome the pre-
sumption of effective service than under Grijalva. This lower
evidentiary standard makes good sense. If a letter is sent by
certified mail, there is a paper trail in Postal Service records
showing both mailing and receipt (or non-receipt). By con-
trast, there is no Postal Service paper trail for regular mail.
There is seldom any administrative paper trail either, other
than a copy of the notice in question and, sometimes, a copy
of the envelope in which the notice was sent.
As we previously held in Salta, “some of the Grijalva-
Arrieta proof requirements (e.g., documentary evidence from
SEMBIRING v. GONZALES 10385
the Postal Service, third party affidavits indicating improper
delivery, etc.) . . . clearly have no application under a regular
mail regime.” 314 F.3d at 1080. If the evidence described in
Grijalva “were the standard under the current statute, we
would leave respondents virtually without recourse to rebut
the presumption of effective delivery.” Ghounem, 378 F.3d at
744. Such a result would defeat the purpose of Congress’s
express authorization for rescission of in absentia removal
orders when the alien “did not receive notice.” 8 U.S.C.
§ 1229a(b)(5)(C)(ii).
[5] The test for whether an alien has produced sufficient
evidence to overcome the presumption of effective service by
regular mail is practical and commonsensical rather than rig-
idly formulaic. In the typical regular mail case, the only proof
of non-receipt beyond “the respondent’s statement that he or
she did not receive notice,” Ghounem, 378 F.3d at 744, will
be circumstantial evidence. In a few cases, non-receipt may
be shown by a single piece of evidence, such as when evi-
dence shows that an incorrect address was used. See, e.g.,
Terezov v. Gonzales, 480 F.3d 558, 565 (7th Cir. 2007).
Sometimes, however, several pieces of circumstantial evi-
dence may be appropriate.
For example, we noted in Salta that the petitioner had “ini-
tiate[d] a proceeding to obtain a benefit,” which was probative
of her allegation of non-receipt. 314 F.3d at 1079. She had
“voluntarily approached” the government to request that it
“issue an Order to Show Cause so that she could apply for
Cancellation of Removal.” Id. at 1077. Because she sought an
order that would benefit her, she did not have a “motive to
avoid the hearing.” Id. at 1079. Moreover, Salta had “appear-
[ed] at an earlier hearing,” that had been continued because
the court “had yet to receive her file.” Id. at 1077, 1079. We
held that in those circumstances, where the petitioner was rep-
resented by counsel, “a sworn affidavit from Salta that neither
she nor a responsible party residing at her address received
the notice should ordinarily be sufficient to rebut the pre-
10386 SEMBIRING v. GONZALES
sumption of delivery.” Id. at 1079; see also Lopes, 468 F.3d
at 86 (evidence that the petitioner (1) had “initiated a proceed-
ing to obtain a benefit” by submitting an application for Alien
Labor Certification, (2) had promptly notified the government
of his change of address, and (3) had disclosed his order of
removal when he subsequently filed an application with the
government); Alrefae v. Chertoff, 471 F.3d 353, 360 (2d Cir.
2006) (evidence that an alien had “filed his motion to rescind
and reopen within a few months of the scheduled removal
hearing”); Nibagwire, 450 F.3d at 157 (evidence that the peti-
tioner (1) had already “initiat[ed] a proceeding to obtain a
benefit” by “fil[ing] an application for asylum with the DHS,”
(2) had appeared “for her scheduled interview with an asylum
officer,” and (3) possessed an administrative document cor-
roborating statements in her affidavit).
In evaluating this petition for review, we consider only the
evidence that was before the IJ when he denied Sembiring’s
motion to reopen, for this was the ruling that was appealed to
the BIA. We do not consider the additional evidence pre-
sented to the IJ in support of Sembiring’s motion to recon-
sider, for the record does not indicate that the IJ ruled on this
motion, and the BIA does not appear to have considered this
evidence in ruling on the appeal of the denial of the motion
to reopen.
[6] We conclude that the BIA erred in deciding that Sem-
biring did not overcome the presumption of effective service.
Sembiring’s asylum application falls directly within Salta’s
description of “initiat[ing] a proceeding to obtain a benefit.”
See 314 F.3d at 1079; see also Nibagwire, 450 F.3d at 157(holding that filing an application for asylum is evidence that
“rebut[s] the presumption that regular mail is delivered” and
helps “prove that [the alien] did not receive the notice to
appear”). Sembiring affirmatively sought asylum, thereby
bringing herself to the attention of the government. Only after
she had sought asylum did the government issue a notice to
appear for a removal hearing. Cf. Kaweesa v. Gonzales, 450
SEMBIRING v. GONZALES 10387
F.3d 62, 68 (1st Cir. 2006) (observing that restrictions for the
“exceptional circumstances” exception under § 1229a were
“adopted in response to a serious problem of aliens deliber-
ately failing to appear for hearings and thus effectively
extending their stay in this country”). Like the alien in Lopes,
Sembiring hoped to avoid removal through her asylum appli-
cation. Thus, she did not have a “motive to avoid immigration
proceedings.” See 468 F.3d at 86; see also Salta, 314 F.3d at
1079.
[7] Sembiring did not have a record of appearing for previ-
ous immigration proceedings, but that was only because no
previous proceedings had taken place. Cf. Salta, 314 F.3d at
1077. However, Sembiring did appear in the Immigration
Court on her originally scheduled hearing date. Her pro se let-
ter, construed by the IJ as a motion to reopen, plausibly
explained her presence at the court on that date rather than the
earlier, rescheduled date. Sembiring’s letter was written
promptly, six days after she appeared at the Immigration
Court on August 5, 2003, and was filed with the court three
days after that. See Alrefae, 471 F.3d at 360. Moreover, Sem-
biring attached to her letter both a copy of the first notice to
appear that had been personally delivered to her, and a copy
of the in absentia removal order that had been sent to her
between the date of her rescheduled hearing and that of her
original hearing. Thus, her letter included documentation that
supported her claim.
[8] Finally, the evidence supporting the government’s con-
tention that the notice of rescheduling was actually mailed is
weak. The rescheduling notice is dated July 9, 2003, but the
signature at the bottom of the letter attesting to service by
mail is dated the day before. Moreover, and possibly more
important, a photocopy of what purports to be the envelope
used to send the notice has the Immigration Court’s return
address clearly printed on it, but bears no indication whatso-
ever of either Sembiring’s name or her address in Mission
Viejo. The only visible mark in the middle of the envelope,
10388 SEMBIRING v. GONZALES
where Sembiring’s name and address ought to appear, is the
faint outline of what may be a date stamp, the bottom line of
which begins with the letters “LOS.”
[9] We recognize that Sembiring provided her explanation
for not appearing at the rescheduled hearing in a pro se letter
rather than in a sworn affidavit. We noted in Salta that an affi-
davit is one way to establish non-receipt of a notice sent by
regular mail. See 314 F.3d at 1079. But a sworn affidavit is
not always necessary.
[10] For four reasons, we hold that a sworn affidavit was
not required to establish that Sembiring did not receive notice.
First, as described above, the inquiry contemplated by Salta
is a practical one under which many forms of evidence are
relevant. If there is enough evidence to overcome the pre-
sumption of effective service without a sworn affidavit, the
absence of such an affidavit is not fatal to a petitioner’s
motion under § 1229a(b)(5)(C)(ii).
[11] Second, the governing regulation does not require an
affidavit to support a motion to reopen to rescind an in absen-
tia removal order. We agree with the Second Circuit’s state-
ment in Alrefae that “although a motion to rescind is a type
of motion to reopen, it is distinctive in that a ‘motion to
reopen for purposes of rescinding an in absentia [removal]
order . . . seeks to restart proceedings as if the previous pro-
ceedings never occurred.’ ” 471 F.3d at 357 (quoting
Maghradze v. Gonzales, 462 F.3d 150, 152 n.1 (2d Cir.
2006)) (alteration in original). The regulations adopted by the
agency contain “Rules of Procedure” specifically applicable
to “Notice of hearing procedures and in-absentia decisions.”
8 C.F.R. § 208.2(c)(3)(ii). These rules govern motions to
reopen to rescind in absentia removal orders. Section
208.2(c)(3)(ii) provides only that a motion to reopen on the
ground that “[t]he alien did not receive the notice” must
include “documentary evidence” demonstrating non-receipt.
This section permits but does not require inclusion of an affi-
SEMBIRING v. GONZALES 10389
davit. See also 8 C.F.R. § 1003.23(b)(3) (“A motion to reopen
proceedings shall state the new facts that will be proven at a
hearing to be held if the motion is granted and shall be sup-
ported by affidavits and other evidentiary material.” (empha-
sis added)); cf. Singh v. Gonzales, ___ F.3d ___, 2007 WL
2050954, at *2-3 (9th Cir. July 19, 2007) (remanding motion
to reopen to the BIA to consider the effect of affidavits of
non-receipt of BIA final decision; no discussion of in absentia
hearings or of Salta).
[12] Third, it makes little sense to require an affidavit under
the circumstances presented in this case. When Sembiring
filed her August 11 typewritten letter with the court, she was
not represented by counsel. Her letter recounted a plausible
story of what had happened, stating that she had not received
notice of the change in hearing, that she had appeared on the
date of the originally scheduled hearing, and that when she
appeared on the original date “the lady in 15th floor told me
that my hearing date was reschedule[d].” It is a long-
established principle that the submissions of pro se aliens
should be liberally construed. Agyeman v. INS, 296 F.3d 871,
878 (9th Cir. 2002). It is unreasonable to construe Sembir-
ing’s letter liberally as a motion to reopen because she is pro
se (as the IJ did), only to deny that same pro se motion
because the letter was not in the form of a sworn affidavit.
Denial for failure to provide an affidavit is particularly unwar-
ranted because Sembiring was limited by regulation to one
motion to reopen. See 8 C.F.R. § 208.2(c)(3)(ii). See gener-
ally United States v. Seesing, 234 F.3d 456, 463 (9th Cir.
2001) (as amended) (reversing denial of prisoner’s pro se
motion when the denial “seriously diminished the possibility
of successfully filing a future, properly drafted and docu-
mented, motion” because “[t]he rule of liberal construction
. . . is for the benefit of the pro se prisoner; its rationale loses
validity where it is invoked to the prisoner’s disadvantage”).
[13] Fourth, as we stated in Lanza v. Ashcroft, 389 F.3d
917 (9th Cir. 2004), “[t]he liberty interests involved in
10390 SEMBIRING v. GONZALES
removal proceedings are of the highest order. Removal visits
a great hardship on the individual and deprives him [or her]
of the right to stay and live and work in this land of freedom.”
Id. at 927. (second alteration in original; internal quotation
marks omitted). In Kaweesa v. Gonzales, the First Circuit
cited our decision in Lanza in granting an alien’s petition for
review, noting that hardship concerns “are amplified in a case
. . . where an alien is seeking asylum.” 450 F.3d at 69. Sem-
biring’s case, like Kaweesa’s, involves a removal order
entered against an alien who contends that she will be perse-
cuted if she is removed pursuant to an order that was entered
at a hearing of which she plausibly contends she did not have
notice. Denying Sembiring’s motion to reopen because, acting
pro se, she recounted her story in a letter rather than a sworn
affidavit would unnecessarily elevate form over substance.
[14] We therefore hold that Sembiring presented sufficient
evidence to the IJ to overcome the presumption of effective
service, and to “demonstrate[ ]” that she “did not receive
notice” of the rescheduled hearing. 8 U.S.C. § 1229a(b)(5)
(C)(ii). This evidence was credible and wholly unrefuted. She
is therefore entitled to rescission of her in absentia order of
removal and a hearing on the merits of her asylum applica-
tion. See Singh v. Gonzales, 412 F.3d 1117, 1122 (9th Cir.
2005) (remanding to “reopen removal proceedings and to
rescind the removal order” when alien had established that he
did not receive notice of removal hearing); see also Terezov,
480 F.3d at 566.
Conclusion
Our decision in Salta establishes that the presumption of
effective service that applies to a notice to appear sent, or pur-
portedly sent, by regular mail is weaker than the “strong pre-
sumption” that applies to service or attempted service by
certified mail. Petitioner Sembiring has presented sufficient
evidence to overcome the presumption of effective service
and thereby to “demonstrate[ ]” that she “did not receive
SEMBIRING v. GONZALES 10391
notice.” We remand to the BIA with directions to remand to
the IJ to grant Sembiring’s motion to reopen in order to
rescind the in absentia removal order entered against her more
than four years ago.
Petition GRANTED; REMANDED.