Derezinski, Andrzej v. Mukasey, Michael B.

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-1221, 07-2035
ANDRZEJ DEREZINSKI,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition to Review an Order of the
Board of Immigration Appeals.
No. A29 226 827
____________
ARGUED DECEMBER 11, 2007—DECIDED FEBRUARY 20, 2008
____________
Before POSNER, WOOD, and EVANS, Circuit Judges.
POSNER, Circuit Judge. Back in 1994, the Immigration
and Naturalization Service served the petitioner with an
order to show cause why he should not be deported. The
order, which was read to him, said he’d be notified of the
date of his deportation hearing at the address that he
had given the Service, which was in Chicago. Several
weeks later, the Chicago office of the Immigration Court
sent, by certified mail to the petitioner’s address, a letter
notifying him of the date and time of the hearing. After
several unsuccessful attempts to deliver the letter, the
2 Nos. 07-1221, 07-2035
post office returned it to the sender as having been un-
claimed, meaning that the mail carrier had not found
anyone at the address to sign for the notice and thus
acknowledge receipt. Without attempting further notice,
the immigration judge conducted the deportation hear-
ing in absentia (that is, in the petitioner’s absence) and at
its conclusion ordered the petitioner deported. The follow-
ing month the petitioner, without explaining how he had
learned about the hearing (though at the oral argument
in this court his counsel said that his client had received
the deportation order by ordinary mail), filed a petition to
reopen his case on the ground that he had received no
notice of the hearing. The immigration judge denied
the petition to reopen, finding that the petitioner had
refused to accept delivery of the notice. The Board of
Immigration Appeals affirmed—whereupon the petitioner
vanished, resurfacing only in 2006 when stopped for a
traffic violation. Deportation (now called removal) pro-
ceedings resumed. The petitioner sought to reopen the
original deportation proceeding on the ground that he
had not received notice of the deportation hearing. The
immigration judge denied the petition; so the deportation
(removal) order stood. The petitioner appealed to the
Board of Immigration Appeals, meeting rejection on two
independent grounds there: that the petitioner’s 11-year
delay in filing it made the petition untimely and that he
had either received notice of the hearing or, what would
amount to the same thing, evaded receipt.
There is no fixed time limit on a petition to reopen a
removal proceeding if the removal order was entered in
the petitioner’s absence and the ground of the petition is
that he did not receive notice of the removal proceeding.
8 C.F.R. § 1003.23(b)(4)(iii)(A); Kozak v. Gonzales, 502 F.3d
Nos. 07-1221, 07-2035 3
35 (1st Cir. 2007); Andia v. Ashcroft, 359 F.3d 1181, 1184
(9th Cir. 2004) (per curiam). But like any tribunal, the
Board has discretion to turn down repeated requests to
revisit a decision, and to do so without considering the
merits of the request unless there has been a material
change in circumstances, in order to avoid being flooded
with redundant filings. See 8 C.F.R. §§ 1003.2(c)(1), .2(a).
The Board had affirmed the rejection of the petitioner’s
argument that he had not been notified of the removal
hearing. Nothing had changed in eleven years to require
the Board to revisit the issue. It could have done so if it
wanted, but an 11-year delay in seeking reopening, with
no excuse except that the petitioner did not want to be
deported—a delay due indeed to the petitioner’s fugitive
status—was a valid, indeed a compelling, ground for
the Board’s refusing to entertain the repetitive petition.
INS v. Doherty, 502 U.S. 314, 323 (1992).
The Board’s alternative ground was also sound, and it is
worth discussing because the problem of notice of removal
hearings is a recurrent one. See, e.g., Peralta-Cabrera v.
Gonzales, 501 F.3d 837, 840-41 (7th Cir. 2007); Kozak v.
Gonzales, supra; Santana Gonzalez v. Attorney General, 506
F.3d 274 (9th Cir. 2007). When receipt of notice is at issue,
a sworn denial of having received notice makes the issue
of receipt one of fact. E.g., Joshi v. Ashcroft, 389 F.3d 732,
735 (7th Cir. 2004); Santana Gonzalez v. Attorney General,
supra, 506 F.3d at 280; Ghounem v. Ashcroft, 378 F.3d 740,
745 (8th Cir. 2004). Certified mail is an attractive means
of quelling a factual dispute over notice because if the
alien acknowledges in writing having received the notice
he cannot later deny receipt. But if there is no one at the
address to which the certified mail is delivered to sign
for it, it is returned to the post office as “unclaimed,”
4 Nos. 07-1221, 07-2035
leaving unsettled whether the addressee refused to accept
the certified letter or just happened to be out when de-
livery was attempted. However, postal regulations re-
quire the mail carrier to leave a notice of attempted deliv-
ery (and if the item isn’t called for within five days, a
second notice), Postal Operations Manual § 813.25 (2005);
and if these things are done with no result, the probabil-
ity that the addressee refused to accept delivery soars.
A good way to backstop service of a notice to appear by
certified mail is to follow it up with a letter by regular
mail. Such a letter doesn’t have to be signed for and
therefore can just be stuck through the mail slot. If a
certified mailing followed by a regular mailing does not
elicit a response, the inference that the alien is evading
service becomes overwhelmingly likely—and if he argues
that he moved to a different address, he will be met
with the rejoinder that he was required to notify the
immigration authorities of a change of address. 8 U.S.C.
§ 1305(a); Wijeratne v. INS, 961 F.2d 1344, 1347 (7th Cir.
1992).
But the additional, follow-up mailing that we are sug-
gesting is not a constitutional requirement: “the Due
Process Clause does not require . . . heroic efforts by the
Government; it requires only that the Government’s
effort be ‘reasonably calculated’ to apprise a party of the
pendency of the action.” Dusenberry v. United States,
534 U.S. 161, 170 (2002). If the efforts are adequate,
success is not required. Jones v. Flowers, 547 U.S. 220, 226-
27, 231 (2006). A certified mailing to an address known to
be current will ordinarily discharge the government’s duty
of notice, though, as we have just seen, it is not the best
method.
Nos. 07-1221, 07-2035 5
The issue in this case, however, is not the method of
giving notice but whether notice was received. An order of
removal entered in the alien’s absence can be reopened if
he did not receive notice. 8 U.S.C. § 1229a(b)(5)(C)(ii)
(current statute); 8 U.S.C. § 1252b(c)(3)(B) (statute applica-
ble to our petitioner); Peralta-Cabrera v. Gonzales, 501 F.3d
837, 843-44 (7th Cir. 2007), and cases cited there. But by
trying to show that he did not receive notice he creates
a factual issue that the Board may be able to resolve in
favor of finding notice even if there was just the initial,
certified mailing. Joshi v. Ashcroft, supra, 389 F.3d at 735;
Ghounem v. Ashcroft, supra, 378 F.3d at 745. The Board
was able to do that in this case.
The petitioner’s sworn denial was the only evidence
of nonreceipt, and it was weak evidence because as we
explained in Joshi v. Ashcroft, supra, 389 F.3d at 735-36(citation omitted), “Most letters are delivered, but some
aren’t, and so if there is a sworn denial of receipt the
trier of fact has to weigh the credibility of the denial in
light of the fact that the vast majority of letters are deliv-
ered and that the intended recipient has a strong incentive
to lie . . . . [However,] a bare, uncorroborated, self-serving
denial of receipt, even if sworn, is weak evidence. Nothing
is simpler than submitting an affidavit in which one
attests that one didn’t receive a particular piece of
mail. False swearing unfortunately is common and the
deterrent effect of the possibility of a perjury prosecu-
tion for filing a false affidavit in a civil case is close to nil.”
The petitioner’s lawyer told the Board—but without
backing up the assertion with an affidavit from his
client—that the petitioner had been out of town when
the attempts at delivery were made, had inquired of the
post office when he returned, and had been told that the
6 Nos. 07-1221, 07-2035
“parcel had been returned to the sender.” This submis-
sion actually weakens the petitioner’s case. Having been
read the order to show cause, he should have put two
and two together and realized that the “parcel” was the
notice of hearing that he was expecting because the order
to show cause that he had received and that had been read
to him told him to expect such a notice. At that point—at
least two months before the scheduled immigration
hearing—he should have contacted the immigration
authorities for the time and place of the hearing. De Jimenez
v. Ashcroft, 370 F.3d 783, 787 (8th Cir. 2004).
He places great weight on the Supreme Court’s deci-
sion in Jones v. Flowers, supra, which holds that when a
certified letter threatening a tax foreclosure is returned
unclaimed, the state must take additional steps to assure
that the property owner is notified that his property may be
taken. The only address that the state had was more than
30 years old, and it was quite likely that the taxpayer had
moved, as in fact he had. Nor had he received notice
to expect notice, as our petitioner did. And a property
owner is less likely than an illegal immigrant to avoid
a hearing, as it usually is possible to obtain relief from
proposed tax foreclosures. Our petitioner has never had a
good claim to remain in this country and may thus have
been unwilling to show up for a hearing—where he
might have been taken into custody, 8 U.S.C. § 1226(a)—
though by failing to do so he would have become ineli-
gible for most forms of discretionary relief, 8 U.S.C.
§ 1229a(b)(7); Leal-Rodriguez v. INS, 990 F.2d 939, 950 (7th
Cir. 1993); Lopez v. INS, 184 F.3d 1097, 1101 n. 4 (9th Cir.
1999); In re M- S-, 22 I. & N. Dec. 349, 355 (BIA 1998),
and possibly suffered other adverse consequences as
well. 8 U.S.C. § 1229a(b)(5); Kay v. Ashcroft, 387 F.3d 664,
671-72 (7th Cir. 2004); Ursachi v. INS, 296 F.3d 592, 595 (7th
Nos. 07-1221, 07-2035 7
Cir. 2002); Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999). His
subsequent effort to evade removal is consistent with an
inference that he willfully refused to attend the hearing.
So the petitioner has no case. But the immigration
authorities could save themselves some headaches by
including the date, time, and place of the hearing in the
order to show cause. The only obstacle is bureaucratic, but
what greater obstacle is there to efficiency than bureau-
cracy? The order to show cause is issued by the Depart-
ment of Homeland Security, but the notice of hearing
is issued by the Immigration Court, which is part of the
Justice Department. The Department of Homeland
Security does not know the hearing schedule of the im-
migration judges, so it can’t put the information required
to be included in the notice in the order to show cause. The
solution would require a degree of cooperation between
separate cabinet-level departments that would doubtless
be difficult to forge. The snafu in this case, after all, oc-
curred before the creation of the Department of Homeland
Security, and thus at a time when all the immigration
agencies were in the Department of Justice, so that
interdepartmental cooperation was not required.
The petition for review is
DENIED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-20-08