Dalip Singh v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DALIP SINGH, 
Petitioner, No. 04-72701
v.
 Agency No.
A77-424-559
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 17, 2006—San Francisco, California
Filed November 28, 2006
Before: Alex Kozinski and Raymond C. Fisher,
Circuit Judges, and Frederic Block,* Senior District Judge.
Opinion by Judge Fisher
*The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
18809
18812 SINGH v. GONZALES
COUNSEL
Inna Lipkin, Law Office of Kuldip S. Dhariwal, Redwood
City, California, for the petitioner.
Peter D. Keisler, Assistant Attorney General, Jeffrey J. Bern-
stein, Senior Litigation Counsel, Benedetto Giliberti, Attor-
ney, and Joan Smiley (argued), Attorney, United States
Department of Justice, Washington, D.C., for the respondent.
OPINION
FISHER, Circuit Judge:
The question posed by this case is whether an alien who in
sworn affidavits claims that he never received notice of the
BIA’s adverse decision is entitled to reopening and reissuance
of that decision so that he may timely appeal it to this court.
More specifically, when the BIA uses regular mail to meet its
regulatory obligation to serve its decisions on aliens, does the
BIA’s factual finding that its decision was properly mailed to
the alien’s address of record preclude the alien’s claim that he
did not actually receive the decision?
I.
Petitioner Dalip Singh is a 42-year-old native and citizen of
India. On August 10, 1998, he entered the United States on a
B-2 visitor’s visa, which authorized him to remain in the
United States until February 9, 1999. Some time before his
visa expired and while still lawfully in the United States,
Singh petitioned the immigration authorities for asylum,
claiming persecution on account of religion (Sikh) and mem-
bership in a disfavored group (the Akali Dal Mann Party).
Subsequently, Singh appeared at two immigration hearings,
one on November 29, 2001 and the second on May 23, 2002.
SINGH v. GONZALES 18813
At the conclusion of the May 23 hearing, the Immigration
Judge (IJ) denied Singh all relief, and Singh thereafter timely
appealed the IJ’s adverse decision to the Board of Immigra-
tion Appeals (BIA). On October 7, 2003, the BIA issued its
decision denying Singh’s appeal in an order affirming the IJ
without an opinion. Singh and his attorney of record, Khuldip
Dhariwal, swear they did not receive notice of the decision.1
The BIA contends, however, that it sent the decision by regu-
lar mail to Singh’s counsel, whose correct address appears on
the decision’s transmittal cover sheet; the BIA acknowledges
that the decision was not sent to Singh himself.
Singh contends that neither he nor his attorney learned of
the BIA’s October 2003 decision until February 2004, well
after the time for Singh to file an appeal with this court had
lapsed. See 8 U.S.C. § 1252(b)(1) (30-day time limit for filing
petitions for judicial review); Caruncho v. INS, 68 F.3d 356,
359 (9th Cir. 1995) (statutory time limit is mandatory and
jurisdictional); see also Stone v. INS, 514 U.S. 386, 394-95
(1995) (statutory time limit is not tolled by the filing of a
motion to reopen or reconsider). On February 23, Dhariwal
received a “bag and baggage order” from the Immigration and
Naturalization Service,2 directing Singh to appear for removal
on March 2, 2004.3 After Dhariwal phoned the BIA and was
informed about its October 2003 denial of Singh’s appeal, he
promptly filed a motion to reopen with the BIA, requesting
1
The factual allegations supporting Singh’s and Dhariwal’s claims that
they did not receive notice of the October 2003 decision are taken from
the motion to reopen and affidavits submitted to the BIA. Except as other-
wise noted, the government does not contest these assertions.
2
The INS has been abolished and its functions transferred to the Depart-
ment of Homeland Security. See Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2135, 2142 (2002), 6 U.S.C. §§ 101-557.
3
The bag and baggage order was dated February 11, 2004. Such an
order issues once the government determines that there is no further
administrative relief available to an alien who is subject to an order of
removal, and instructs the alien to appear at a specified location and time
for removal.
18814 SINGH v. GONZALES
that it reissue its decision so Singh could timely appeal to this
court. Both Dhariwal and Singh attached affidavits to the
motion to reopen, swearing under penalty of perjury that nei-
ther had received the Board’s earlier decision. The BIA
denied Singh’s motion on April 28, 2004, stating, in full:
“The respondent has filed a motion to reissue the Board’s
October 7, 2003, decision. The motion is denied, as the record
reflects that the respondent’s decision was correctly mailed to
the respondent’s attorney of record.” Singh now petitions for
review of the Board’s denial of his motion to reopen.
II.
We must decide whether the BIA abused its discretion in
refusing to reopen and reissue its adverse October 2003 deci-
sion, given Singh’s claim that he never received notice of that
decision and therefore could not timely appeal it to this court
on its merits.4 To succeed on his claim that the BIA abused
its discretion, Singh must establish that the BIA failed to com-
ply with the terms of its own regulations. See Iturribarria v.
INS, 321 F.3d 889, 895 (9th Cir. 2003). He cannot do so, and
thus his petition for review must be denied.
[1] The regulations governing the BIA’s obligation to give
notice of its decisions provides that “[t]he decision of the
Board . . . shall be served upon the alien or party affected
. . . .” 8 C.F.R. § 1003.1(f).5 Service, in turn, is defined as
“physically presenting or mailing a document to the appropri-
ate party or parties.” 8 C.F.R. § 1003.13 (emphasis added).
4
We review for abuse of discretion the BIA’s denial of a motion to
reopen. Salta v. INS, 314 F.3d 1076, 1078 (9th Cir. 2002). The BIA abuses
its discretion if it acts “arbitrarily, irrationally or contrary to law.” Movsi-
sian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (internal quotation
marks omitted).
5
The government argued in its briefing and at oral argument before us
that 8 U.S.C. § 1229(a)(1) was applicable. But that section clearly covers
only “notice[s] to appear,” not notice of the BIA’s decision. This differ-
ence is critical as we explain later.
SINGH v. GONZALES 18815
[2] When the Board relies on service by mail, it must estab-
lish that the document placed in the mail was correctly
addressed to the alien’s (or his counsel’s) address of record.
See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.
1996). In Martinez-Serrano, the BIA had mailed its decision
denying an alien’s motion to reopen to an old address, even
though it had been properly notified of counsel’s new address.
The BIA learned of its mistake one month later and mailed
the decision to the correct address. The alien petitioned this
court for review of the Board’s denial more than 90 days after
the date of the incorrectly addressed mailing, but within 90
days of the BIA’s subsequent, corrected mailing.6 The govern-
ment argued that we were without jurisdiction to review the
BIA’s denial of the motion to reopen because the alien’s peti-
tion for review was filed more than 90 days after the BIA first
mailed its decision. Rejecting the government’s contention,
we relied on Zaluski v. INS, 37 F.3d 72, 73 (2d Cir. 1994) (per
curiam), which held that “the BIA’s regulations . . . specify
that decisions be mailed to the appropriate party” and “the
decision was not mailed to the appropriate party until it was
directed to the address duly recorded with the BIA.”
Martinez-Serrano, 94 F.3d at 1258-59. Reasoning that “the
petitioner should not be penalized for the BIA’s failure to
comply with the terms of the federal regulations,” we con-
cluded that the “[t]ime for filing a review petition begins to
run when the BIA complies with the terms of federal regula-
tions by mailing its decision to petitioner’s [or his counsel’s]
address of record.” Id. at 1259 (quoting Zaluski, 37 F.3d at
73) (emphasis added) (second alteration in original).
Under the clear terms of the regulations then, as interpreted
by this court, the BIA does not effectuate service if it fails to
mail its decision to the party’s correct address of record. This
is the framework under which we analyze Singh’s claims that
he is entitled to relief if he can show he did not in fact receive
6
At the time Martinez-Serrano was filed, aliens had 90 (rather than 30)
days to petition for review of the BIA’s decision. See id. at 1258.
18816 SINGH v. GONZALES
notice of the Board’s decision. In order to prevail on his peti-
tion for review, Singh must establish that the BIA failed to
fulfill its regulatory or legal obligations with respect to its
October 2003 decision.
III.
A.
[3] Singh’s allegation of nonreceipt suggests that he might
be claiming the decision was never mailed at all, much less
to the correct address. If true, that would violate 8 C.F.R.
§ 1003.1(f) on its face. The BIA found, however, that the
decision “was correctly mailed” to Singh’s attorney, and we
review this factual finding for substantial evidence. See
Hamoui v. Ashcroft, 389 F.3d 821, 826 (9th Cir. 2004). We
“must uphold the BIA’s finding unless the evidence compels
a contrary result.” Monjaraz-Munoz v. INS, 327 F.3d 892, 895
(9th Cir. 2003). Singh has offered only his affidavits suggest-
ing that the decision was not mailed by the BIA, and the BIA
points to the properly addressed transmittal sheet of its Octo-
ber 2003 decision as evidence that it was. See Haroutunian v.
INS, 87 F.3d 374, 375 (9th Cir. 1996) (“The cover letter was
dated June 17, 1994, and we presume that the final order of
deportation was mailed on that date.”). Given this record,
sparse as it is, we are unable to conclude on the basis of
Singh’s affidavits alone that the BIA’s finding was not sup-
ported by substantial evidence.
B.
[4] Singh argues that his allegation of nonreceipt, supported
by his affidavits and course of conduct, should equitably toll
the filing deadline for petitioning this court. Had the BIA
failed to comply with its regulations, this argument would
have had merit. But Singh equates the BIA’s obligation to
“serve” with actual delivery. Singh’s position is a reasonable
one because service is generally understood to mean delivery.
SINGH v. GONZALES 18817
See Black’s Law Dictionary 1399 (8th ed. 2004) (defining
serve as “1. To make legal delivery of (a notice or process)
. . . ; 2. To present (a person) with a notice or process as
required by law”). Indeed, the BIA’s own definition of service
requires the BIA either to “physically present[ ]” its decision
(ensuring the alien actually receives it) or to mail its decision.
8 C.F.R. § 1003.13. These two methods of service are of
equal significance only if one presumes receipt from mailing.
Significantly, prior to the 1996 amendments to the United
States Code, the BIA was required to mail its decision using
certified mail, which provided documentation of actual deliv-
ery. See 8 U.S.C. §§ 1252b(a)(1), (f)(1) (1995); see also In re
Grijalva, 21 I. & N. Dec. 27, 32 (BIA 1995). Thus, the BIA’s
mailing of its decision by certified mail to an alien was
roughly equivalent to physically presenting the decision to the
alien. Congress, however, amended the statute in 1996 to
allow the BIA to send its decision by regular mail. See 8
U.S.C. § 1229(a)(1) (1996). And because the BIA retained its
regulations authorizing service by “mailing,” it appears that
regular mail suffices even though it does not generate any
confirmation by the U.S. Postal Service that the mail actually
got through. Consequently, unless there is some regulatory or
other legal requirement that the BIA affirmatively demon-
strate that Singh actually received the Board’s October 2003
decision, his sworn allegations of nonreceipt are legally insuf-
ficient. Singh has not called our attention to any such require-
ment and we have not found any.
Our decision in Salta v. INS, 314 F.3d 1076 (9th Cir. 2002),
adopted a rebuttable presumption of receipt when an alien
cannot show that the Board failed to mail its decision to the
correct address. Under Salta, the alien thus has the opportu-
nity to demonstrate factually that he did not receive the deci-
sion, thereby warranting the Board’s reopening the matter.
Salta, however, arose in a different context, addressing what
an alien must allege to be entitled to rescission of an in absen-
tia order of removal under 8 U.S.C. § 1229a(b)(5). See id. at
1077-78. The INS had mailed notice of the alien’s removal
18818 SINGH v. GONZALES
hearing using regular mail rather than certified mail as had
been previously required. Salta claimed she never received
notice of the hearing and was entitled to have the in absentia
removal order rescinded. The IJ disagreed, relying on the
strong presumption that public officers, including the postal
workers, properly discharge their duties. We noted that the
IJ’s presumption of effective service by mail derived from In
re Grijalva, in which the BIA had stated:
We find that in cases where service of a notice of
a deportation proceeding is sent by certified mail
through the United States Postal Service and there is
proof of attempted delivery and notification of certi-
fied mail, a strong presumption of effective service
arises. There is a presumption that public officers,
including Postal Service employees, properly dis-
charge their duties. A bald and unsupported denial of
receipt of certified mail notices is not sufficient to
support a motion to reopen to rescind an in absentia
order. . . .
This presumption of effective service may be
overcome by the affirmative defense of nondelivery
or improper delivery by the Postal Service. How-
ever, in order to support this affirmative defense, the
respondent must present 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.
21 I. & N. at 37 (emphasis added) (internal citations omitted).
Because the INS had not used certified mail, however, we
concluded that the IJ relied on the wrong standard in denying
Salta’s defense of nonreceipt. Rather, “[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 presumption’ as certified mail, and less should be
SINGH v. GONZALES 18819
required to rebut such a presumption.” Salta, 314 F.3d at
1079. We remanded to the IJ to determine if certain condi-
tions were satisfied (including the alien’s submission of an
affidavit attesting to nonreceipt) that would entitle Salta to an
evidentiary hearing on whether notice was in fact received.
See id. at 1079-80.
[5] But Salta is inapposite. Section 1229a(b)(5) requires the
immigration judge to enter an in absentia removal order when
an alien fails to appear for a hearing. The order may be
rescinded if the alien demonstrates “that she did not receive
notice of the removal hearing.” Id. at 1078 (citing 8 U.S.C.
§ 1229a(b)(5)(C)). There is no comparable statutory provision
with respect to notice of BIA decisions that would require
excusing an alien’s delinquency in failing to timely file a peti-
tion for review because of his asserted nonreceipt of notice.
As we have already explained, to satisfy its regulatory obliga-
tion to accomplish service of its decision, the BIA is required
only to mail the decision to the alien’s address of record.7 Cf.
Radkov v. Ashcroft, 375 F.3d 96, 99 (1st Cir. 2004) (“The
time for filing a review petition begins to run when the BIA
complies with the terms of the applicable regulations by mail-
ing its decision to a petitioner’s address of record. Even if, as
the petitioners contend, the mailing in this case somehow
went awry without any fault on the part of the BIA, that cir-
cumstance alone would not excuse the failure to file a timeous
motion to reopen.” (internal citations omitted)); Nowak v.
INS, 94 F.3d 390, 392 (7th Cir. 1996) (“Neither [Zaluski v.
INS, 37 F.3d 72 (2d Cir. 1994), nor Ouedraogo v. INS, 864
F.2d 376 (5th Cir. 1989),] suggests that the time [in which to
file a petition for review] is extended when the agency sends
7
We have recognized differing standards in the removal hearing context
as compared to the BIA decision/petition for review context: “[T]here is
a significant difference between initiating deportation proceedings in
absentia and declining to hear an absent alien’s petition for review of pro-
ceedings in which he fully participated.” Antonio-Martinez v. INS, 317
F.3d 1089, 1092-93 (9th Cir. 2003).
18820 SINGH v. GONZALES
a notice that miscarries in the mails; indeed, both strongly
imply the contrary, for they rest on the premise that, because
a regulation requires the Board to send notice of its decisions,
the time for filing a review petition begins to run when the
BIA complies with the terms of federal regulations by mailing
its decision to petitioner’s address of record.” (internal quota-
tion marks and citation omitted)). Under these circumstances,
we do not believe it appropriate to adopt the rebuttable pre-
sumption regime set forth in Salta as a qualifier to the Board’s
service obligations set forth in 8 C.F.R. §§ 1003.1(f) and
1003.13.
In addition to compliance with the regulations that require
service, the BIA of course must not mislead an alien as to the
status of his appeal or the time limit for filing a petition for
review. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003)
(“[W]here there has been official misleading [by the court or
the BIA] as to the time within which to file a notice of appeal,
the late notice may be deemed to have been constructively
filed within the jurisdictional limits.” (citing Hernandez-
Rivera v. INS, 630 F.2d 1352, 1355 (9th Cir. 1980)). Singh
has not argued that the BIA misled him in any respect.
[6] We therefore must conclude that Singh has not pres-
ented any evidence to show that the Board abused its discre-
tion in declining to reopen his appeal and reissue its October
2003 decision. In so holding, we recognize that this places the
burden on the alien and his counsel to be vigilant in checking
the status of his case. According to the parties’ briefs, the BIA
has provided a hotline for aliens to call to determine whether
a decision has been issued. Indeed, Singh’s counsel confirmed
that a decision had been rendered by the BIA by calling this
hotline. Cf. Nowak, 94 F.3d at 391 (observing that “aliens
who distrust the Postal Service must check with the Board
every so often, just as litigants in district court must check
periodically with the clerk . . . .”).
Requiring such vigilance is not unique to this context. For
example, in a civil proceeding before the district court where
SINGH v. GONZALES 18821
the United States is a party, the parties have 60 days to file
a notice of appeal, and 30 days from this deadline to seek an
extension of time to file the notice. See Fed. R. App. P.
4(a)(1)(A). In Alaska Limestone Corp. v. Hodel, 799 F.2d
1409, 1411 (9th Cir. 1986) (per curiam), we refused to excuse
noncompliance with these time limits even if the district court
clerk failed to notify counsel of the entry of final judgment,
because “[a] party has an independent duty to keep informed
and mere failure of the clerk to notify the parties that judg-
ment has been entered does not . . . warrant an extension of
time.” Id. at 1412; see also Mennen Co. v. Gillette Co., 719
F.2d 568, 570 (2d Cir. 1983) (holding that, in the context of
Rule 77(d), “it is customarily the duty of trial counsel to mon-
itor the docket and to advise himself when the court enters an
order against which he wishes to protest.”).
IV.
[7] There may be situations where serious due process con-
cerns are implicated by the BIA’s refusal to reopen and reis-
sue, when it is undisputed that the alien neither received the
decision nor had the ability to verify independently that a
decision has been rendered. See Farhoud v. INS, 122 F.3d
794, 796 (9th Cir. 1997) (“The Due Process Clause protects
aliens in deportation proceedings and includes the right to a
full and fair hearing as well as notice of that hearing.”). Under
these circumstances, aliens may have to rely on the BIA’s sua
sponte authority to reopen a proceeding under 8 C.F.R.
§ 1003.2(a). See In re X-G-W-, 22 I. & N. Dec. 71, 73 (1998)
(en banc) (“[T]he Board retains limited discretionary powers
under [8 C.F.R. § 1003.2(a) of] the regulations to reopen or
reconsider cases sua sponte in unique situations where it
would serve the interest of justice.”), superseded on other
grounds by In re G-C-L-, 23 I. & N. Dec. 359 (2002). Of
course Singh’s case does not present such a situation and his
due process rights were not violated. See Farhoud, 122 F.3d
at 796 (rejecting an alien’s due process claim because notice
was mailed to the alien’s address of record pursuant to the
18822 SINGH v. GONZALES
applicable statute and “due process is satisfied if service is
conducted in a manner ‘reasonably calculated’ to ensure that
notice reaches the alien”) (quoting United States v. Estrada-
Trochez, 66 F.3d 733, 736 & 736 n.1 (5th Cir. 1995)). None-
theless, we cannot help noting that potential inequities and
needless expenditure of administrative and judicial resources
could be readily avoided if the BIA simply mailed its deci-
sions by certified mail, thereby providing clear proof of actual
mailing and delivery.
V.
The BIA was obliged to mail its decision to Singh’s correct
address of record. Singh’s affidavits alleging nonreceipt and
implying nonmailing are insufficient to overcome the BIA’s
factual finding — based on the transmittal sheet’s evidence of
mailing — that the decision was properly mailed. Therefore,
the BIA did not abuse its discretion in denying Singh’s
motion to reopen, and Singh has not established a violation of
due process.
PETITION FOR REVIEW DENIED.