Busquets-Ivars v. Ashcroft , 333 F.3d 1008 ( 2003 )

Opinion by Judge BEEZER; Dissent by Judge FERNANDEZ.

OPINION

BEEZER, Circuit Judge:

We consider the requirements for proper notice of scheduled removal hearings.

Pedro Sebastian Busquets-Ivars, Angelica Sylvia Busquets, Alejandro Ernesto Busquets-Araneda and Mauricio Ignacio Busquets-Araneda (“Busquets”) were ordered removed in absentia. The Busquets contend that the Immigration and Naturalization Service (“INS”) failed to prove service of notice. The Busquets petition for review of the Board of Immigration Appeals’ (“BIA”) decision to not reopen. We have jurisdiction pursuant to 8 U.S.C. § 1229(b) and we grant the petition for review.

I

The Busquets are natives of Chile who entered the United States in April 1988, with visitor visas. In September 1997, the Busquets submitted an application for asylum and withholding of deportation. The Busquets were instructed to complete an INS form and to provide a street address to which the INS could mail hearing notices. The Busquets gave two distinct addresses. They were:

(A) c/o P.O. Box 1171

Fontana, CA 92316

8841 Buckeye Drive

Pontana, CA 92335

The address used by the INS to notify the Busquets of an established date and time for hearing was as follows:

(B) 8841 Buckeye Drive

Fontana, CA 92316-0000

The INS used a correct street designation of one address coupled with an erroneous zip code for that street address.

We review de novo the BIA’s determination of purely legal questions regarding the Immigration and Nationality Act (“INA”). Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002).

II

In this case, 8 U.S.C. § 1229(a)(1) required that notice be sent by regular mail. The INS chose to use certified mail, gaining a stronger rebuttable presumption of delivery.¹ Based on our examination of the record and inquiry at oral argument, it is clear that the INS cannot produce a return receipt for the mailed notice. See Mulder v. Commissioner, 855 F.2d 208, 212 (5th Cir.1988), (explaining that “the IRS file does not contain either the original letter or the executed return receipt. While it is presumed that a properly-addressed piece of mail placed in the care of the Postal Service has been delivered, no such presumption of delivery exists for certified mail when the requested return receipt is not received by the sender.”) (emphasis added); see also Moya v. U.S., 35 F.3d 501, 504 (10th Cir.1994).

McPartlin v. Commissioner, 653 F.2d 1185, 1191 (7th Cir.1981) says “[t]he fact that the Commissioner’s file contains no return receipt for the notice mailed April 13, 1978 fosters the conclusion that fault for the petitioners’ failure to receive notice must rest with the Postal Service or the Commissioner, but, in any event, not with petitioners.” (emphasis added) We express no opinion whether the record, lacking the return receipt, deprives the INS of the presumption that notice was effective and thus relieving the Busquets of having to rebut the presumption. We direct our attention, instead, to whether the mailing was properly addressed.

III

Rosenthal v. Walker, 111 U.S. 185, 4 S.Ct. 382, 28 L.Ed. 395, (1884), establishes the standards for mailings, “The rule is well settled that if a letter “properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed, from the known course of business in the post-office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed.” (emphasis added) Rosenthal, 111 U.S. at 193, 4 S.Ct. at 386. We hold that the Busquets letter was not “properly directed”.

IV

A zip code is an operative part of a properly directed piece of mail. 39 C.F.R. § 111.1 (2003) incorporates the contents of the Domestic Mail Manual (“DMM”). Section A010.1.2, of the DMM explains “ZIP Codes (5-digit or ZIP + 4) are required on ... penalty mail.” Penalty mail is defined as “official mail sent by U.S. government agencies, relating solely to the business of the U.S. government.” DMM-57 § E060.1.0. For this standard, “agencies are departments, agencies, corporations, establishments, commissions, committees ... authorized to use penalty mail.” Id. Postal Service Handbook DM-103 lists “Immigration and Naturalization — Justice” as an authorized agency. Properly directed INS notice requires inclusion of a proper zip code.

The INS fails to meet 8 U.S.C. § 1229(a)(l)’s requirement because the zip code used was incorrect. The INS cannot benefit from the rebuttable presumption of the Rosenthal rule. The INS records affirmatively demonstrate that the hearing notice was improperly addressed.

V

We hold that invocation of a presumption of notice requires the INS to prove that the notice (1) was properly addressed; (2) had sufficient postage; and (3) was properly deposited in the mails. A notice which fails to include a proper zip code is not properly addressed.

REVIEW GRANTED.

1 . 8 U.S.C. § 1252b(a)(2)(A) (repealed in 1996) required notice to be sent by certified mail. Notice mailing requisites are now contained in 8 U.S.C. § 1229(a)(1) and only require regular mail. See Salta v. INS, 314 F.3d 1076 (9th Cir.2002).