Maknojiya v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 1, 2005
Charles R. Fulbruge III
Clerk
No. 04-60361
Summary Calendar
RAHIM MAKNOJIYA,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:
Rahim Maknojiya petitions this court for review of the
Board of Immigration Appeals’ (“BIA”) decision denying his appeal
from a decision of the Immigration Judge (“IJ”) that denied his
motion to reopen proceedings and to rescind the order of removal
that was entered against him in absentia.
Maknojiya argues here, as he did before the IJ and the
BIA, that he did not receive notice of the hearing date and that
the IJ’s decision denying his motion to reopen was an abuse of
discretion.
This court reviews a denial of a motion to reopen under
a “highly deferential abuse-of-discretion standard.” Zhao v.
Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). An alien who does not
attend a hearing after written notice has been provided to the
alien or the alien’s counsel of record shall be ordered removed in
absentia if the INS establishes by clear, unequivocal, and con-
vincing evidence that the written notice was so provided and that
the alien is removable. 8 U.S.C. § 1229a(a)(5). However, an in
absentia removal order may be rescinded upon a motion to reopen
filed at any time if it can be demonstrated that the alien did not
receive notice. 8 U.S.C. § 1229a(a)(5)(C)(ii); 8 U.S.C.
§ 1229(a)(1) and (2).
Maknojiya concedes that he and his counsel received
notice that the hearing was set for March 11, 2003. The March 11,
2003, hearing notice is in the administrative record. However, the
record also contains a hearing notice that reset the March 11,
2003, hearing for the earlier date of February 13, 2003. The
February 13, 2003, hearing notice is dated after the March 11,
2003, hearing notice. Both hearing notices contain Maknojiya’s
attorney’s name and address, and the notices indicate that they
were sent through regular mail. Postal receipts are not included
in the administrative record, nor is there a copy of an addressed
envelope. Maknojiya asserts that neither he nor his attorney
received the hearing notice that reset the March 11, 2003, hearing
to February 13, 2003. Maknojiya asserts that when he appeared for
the hearing on March 11, 2003, he was advised that a removal order
had been entered against him in absentia. Although the IJ’s
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decision had been forwarded to his counsel, Maknijoya states that
his counsel was out of town and did not receive the IJ’s decision.
Both Maknijoya and his counsel submitted affidavits to the IJ with
the motion to reopen that support Maknijoya’s assertions.
Maknijoya also argues, as he did before the BIA and the IJ, that he
intended to apply for cancellation of removal based upon his years
of residence in the United States and because his child, a United
States citizen, has been diagnosed with leukemia and would suffer
hardship if he is removed from the United States.
The IJ’s decision denying Maknojiya’s motion to reopen is
premised upon a presumption that public officials, including Postal
Service employees, properly discharge their duties. The IJ relied
upon Matter of Grijalva, 21 I & N Dec. 27 (BIA 1995), for this
presumption. As the respondent concedes, the IJ erroneously relied
upon Grijalva for this presumption in Maknojiya’s case, because the
presumption of effective service set forth in Grijalva applies when
the notice is sent by certified mail through the United States
Postal Service and there is proof of attempted delivery and
notification of certified mail. Then, a strong presumption of
effective service arises that may be overcome only by the
affirmative defense of nondelivery or improper delivery by the
Postal Service. Grijalva, 21 I & N Dec. at 37-38. It was an abuse
of the IJ’s discretion to apply the Grijalva presumption to
Maknojiya’s case, where notice of the hearing was sent by regular
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mail. See Ghounem v. Ashcroft, 378 F.3d 740, 744-45 (8th Cir.
2004)); Salta v. INS, 314 F.3d 1076, 1078-80 (9th Cir. 2002).
Additionally, the IJ’s disregard of the affidavits of
Maknojiya and his counsel appears to be premised on Grijalva, which
required “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 nondelivery was not due to the respondent’s failure to provide
an address where he could receive mail.” Grijalva, 21 I & N Dec.
at 37-38. While the IJ characterized the affidavits as self-
serving, he did not find an evidentiary flaw in the affidavits. As
noted in Ghounem, in the case of failed mail delivery when regular
mail is used, the “only proof” is the alien’s statement that he or
she did not receive notice. Ghounem, 378 F.3d at 744. Here, both
Maknojiya and his counsel submitted affidavits indicating that they
did not receive the notice that reset the hearing date for an
earlier date. Although Maknojiya did not initiate the removal
proceedings, as did the aliens in both Ghounem, 378 F.3d at 745 and
Salta, 314 F.3d at 1079, the record does not indicate that
Maknojiya was attempting to avoid the immigration proceedings.
Finally, the IJ’s decision is premised entirely on Grijalva.
Although the IJ noted that Maknojiya had not alleged misconduct on
the part of counsel, Maknojiya did not assert that his counsel was
ineffective or that counsel did anything wrong. Rather, Maknojiya
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and his counsel claimed that they did not receive the notice
resetting the March 11, 2003, hearing for the earlier hearing date.
Based on the foregoing, the petition for review is
GRANTED and the case is REMANDED to the BIA.
PETITION FOR REVIEW GRANTED; CASE REMANDED TO THE BIA FOR
FURTHER CONSIDERATION.
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