Chaidez v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIGOBERTO CHAIDEZ, 
Petitioner, No. 02-71966
v.
 Agency No.
A72-141-214
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 14, 2006—San Francisco, California
Filed February 14, 2007
Before: Betty B. Fletcher and Marsha S. Berzon,
Circuit Judges, and David G. Trager,* District Judge.
Opinion by Judge Berzon
*The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
1867
CHAIDEZ v. GONZALES 1869
COUNSEL
Derek F. Foran (argued), Andrew Sabey, Claudia Vetési, and
Brian Orion, Morrison & Foerster LLP, Walnut Creek, Cali-
fornia, for the petitioner.
Anh-Thu P. Mai (argued) and Stephen J. Flynn, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, Washington, D.C., for the respondent.
1870 CHAIDEZ v. GONZALES
OPINION
BERZON, Circuit Judge:
Petitioner Rigoberto Chaidez entered the United States
from Mexico in 1988. We are asked to decide whether
Chaidez was properly served with an Order to Show Cause
(“OSC”) in 1994. In a precedential decision applying the stat-
ute in effect in 1994, the Board of Immigration Appeals
(“BIA”) held that proper service of an OSC occurred when
written notice was sent by certified mail to the alien and the
certified mail receipt was signed by the alien, counsel of
record, or “a responsible person at [the alien’s] address.” Mat-
ter of Grijalva, 21 I. & N. Dec. 27, 32 (BIA 1995) (en banc).
Chaidez’s sworn declaration states that he does not know the
person who signed his OSC’s certified mail return receipt and
that this person was not authorized to sign on his behalf. In
light of this uncontradicted evidence, the government has not
satisfied Grijalva’s “responsible person at the alien’s address”
requirement.
I
On January 18, 1994, the former Immigration and Natural-
ization Service (“INS”)1 issued an OSC for Chaidez. The OSC
was sent by certified mail addressed to Chaidez at the San
Jose, California address he provided on his asylum and work
authorization applications. A return receipt is in the record,
signed on a line reserved for “Addressee” rather than that
labeled “Agent,” with a name resembling Lilia, Libia, or
Lebia Nevarez. On March 8, 1994, the Immigration Court
sent a hearing notice by certified mail to Chaidez’s address,
and again a return receipt came back with a signature that
appears to be the same person’s.
1
On March 1, 2003, the INS ceased to exist and its functions were trans-
ferred to the newly created Department of Homeland Security. See
Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 835 n.* (9th Cir. 2003).
CHAIDEZ v. GONZALES 1871
On May 11, 1994, Chaidez failed to appear for his sched-
uled hearing and an Immigration Judge (“IJ”) administratively
closed the proceedings.2 In 2000, the INS requested that
Chaidez’s case be reopened. The IJ who held the initial hear-
ing regarding this request was inclined to agree with
Chaidez’s position that service of his OSC in 1994 was inade-
quate and that the INS would therefore have to begin proceed-
ings anew. The IJ told the government, with reference to the
BIA’s decision in Matter of Huete, 20 I. & N. Dec. 250 (BIA
1991), which was adopted in relevant part by Grijalva:
“You’ll have no evidence to the contrary, so I would have . . .
to find in favor of the respondent. All he needs to do is submit
a declaration, I don’t know who this woman is, I never
received the notice.” The IJ suggested that Chaidez file a
motion to terminate proceedings and indicated that such a
motion would be granted if accompanied by a declaration of
the kind described.
Chaidez followed the IJ’s directions. He filed a motion to
terminate, contending that the OSC was improperly served
and that he never received it, citing Grijalva. He also submit-
ted a sworn declaration, stating: “I do not know who the per-
son is who signed on the postal record Form 3811.[3 ] It may
2
Chaidez contends that the IJ’s decision to close the proceedings evi-
dences a determination that service was improper, as the statute in effect
at the time required an IJ to enter an in absentia deportation order “if the
Service establishes by clear, unequivocal, and convincing evidence that
the written notice was . . . provided and that the alien is deportable.” 8
U.S.C. § 1252b(c)(1) (1994); see also Fuentes-Argueta v. INS, 101 F.3d
867, 870 (2d Cir. 1996) (per curiam) (“In 1990 . . . Congress amended the
Act to add § 242B, a more stringent provision requiring (rather than
merely permitting) the IJ to issue in absentia orders of deportation where
the INS establishes deportability by ‘clear, unequivocal, and convincing
evidence.’ ”); Matter of Gutierrez-Lopez, 21 I. & N. Dec. 479, 480 (BIA
1996) (en banc) (“The administrative closing of a case does not result in
a final [deportation] order.” (internal quotation marks and citation omit-
ted)). In light of our disposition of the “responsible person” issue, we need
not address Chaidez’s contention regarding administrative closure.
3
This United States Postal Service form is a certified mail “Domestic
Return Receipt.” Shortly after Chaidez’s OSC was delivered, the Postal
1872 CHAIDEZ v. GONZALES
be Lebia Nevarez. I do not know who Lebia Nevarez is. She
does not have authorization to receive service for me. I do not
believe she lived at [Chaidez’s relevant address] when I did.”
There is no indication in the record whether the address con-
cerned is a single-occupancy home or a multi-dwelling build-
ing.
A new IJ was assigned to the case and continued the matter
so he could review Grijalva. Chaidez was not questioned at
the ensuing hearing about the details of his declaration. In his
subsequent decision, the IJ concluded only that “the Order to
Show Cause was served on the respondent at his last known
address and . . . accordingly, the principles of [Grijalva] apply
to the respondent’s proceedings. Accordingly, the Court finds
that service occurred in January 1994.” The BIA affirmed the
results of the IJ’s decision without opinion, pursuant to its
streamlining regulation. See 8 C.F.R. § 3.1(a)(7) (2002).
Service proposed amendments to its certified mail receipt requirements to
ensure that an individual’s name was printed on the receipt along with his
or her signature. See Revisions to Standards Related to Deposit and Deliv-
ery of Mail, 59 Fed. Reg. 13,287, 13,287-88 (proposed Mar. 21, 1994)
(stating that new rules would require “the person signing for an item to
print as well as sign his or her name. This proposed change will apply to
. . . mail receiving . . . certified . . . service, and is intended to improve
the usefulness of the record of delivery that demonstrates that the mail was
delivered and the service rendered. Whether on a Postal Service delivery
record or on a receipt returned to the sender, an illegible signature may
compromise the value of the service for which the sender paid; the pro-
posed new standard is designed to avoid that potential problem. Because
most persons can provide a printed name that is more legible than their
handwritten signature, the Postal Service believes the former will be valu-
able to the sender in those instances when it becomes necessary to identify
the person who received an accountable mailpiece.”); see also Revisions
to Standards Related to Deposit and Delivery of Mail, 59 Fed. Reg.
32,336, 32,337 (June 23, 1994) (hereinafter “Revisions”) (adopting the
requirement that names be printed on return receipts as a final rule and
stating that it would be implemented on October 2, 1994).
CHAIDEZ v. GONZALES 1873
Chaidez has two minor children who are United States citi-
zens. As a result of the IJ’s decision, Chaidez could not pro-
ceed with his application for relief, premised on hardship to
his children, due to the stop-time rule, which cut off his con-
tinuous physical presence in 1994, six years after he arrived
in the United States. See Ram v. INS, 243 F.3d 510, 518 (9th
Cir. 2001).4
II
We review the IJ’s legal determination de novo. See Singh
v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000).
a. Applicable Statute and Case Law
The Immigration Act of 1990 amended the Immigration
and Nationality Act’s notice provisions, with an effective date
of June 13, 1992. See Grijalva, 21 I. & N. Dec. at 30-32. For
an OSC, which may or may not include the scheduled time
and place of proceedings, former § 242B(a)(1), 8 U.S.C.
§ 1252b(a)(1) (1994), provided that:
In deportation proceedings under section 242, writ-
ten notice (in this section referred to as an ‘order to
show cause’) shall be given in person to the alien
(or, if personal service is not practicable, such notice
shall be given by certified mail to the alien or to the
alien’s counsel of record, if any) . . . .5
4
At the time Chaidez’s OSC was mailed, seven years of continuous
physical presence were required for suspension of deportation. See 8
U.S.C. § 1254(a)(1) (1994). The current statute’s provisions for cancella-
tion of removal increased the requisite period to ten years. See 8 U.S.C.
§ 1229b(1)(A).
5
We note that 8 C.F.R. § 103.5a(a)(2)(iv), in 1994 as now, defines “per-
sonal service” to include “[m]ailing a copy by certified or registered mail,
return receipt requested, addressed to a person at his last known address.”
See Matter of Peugnet, 20 I. & N. Dec. 233, 236-37 (BIA 1991) (adopting
this definition of personal service for OSCs). “Personal service” as used
1874 CHAIDEZ v. GONZALES
If an alien failed to appear for a scheduled deportation hear-
ing, the government was required to establish “by clear,
unequivocal, and convincing evidence that the written notice
[required under subsection (a)(2)] was so provided.” Id.
§ 1252b(c)(1).
[1] Addressing these notice provisions, the BIA in Grijalva
stated that, as it had previously determined in Huete,6 proper
service of an OSC occurs when written notice is sent by certi-
fied mail to the alien and the certified mail receipt is signed
by either the alien or “a responsible person at [the alien’s]
address.” 21 I. & N. Dec. at 32. The origin or meaning of the
term “responsible person” was not identified in Huete. Gri-
jalva stated with respect to the 1992 change in statutory lan-
guage that “[i]n the absence of new or contrary language, we
in former 8 U.S.C. § 1252b(a)(1) appears, however, to mean only service
“in person;” service by certified mail was, under the statute, an alternative
to “personal service,” not a form of such service. Also, even with respect
to service by certified mail, the statute stated that the OSC must be “given
. . . to the alien or to the alien’s counsel of record,” (emphasis added), not
simply sent or mailed. Only by implying the word “addressed” before “to
the alien” in § 1252b(a)(1) could the BIA conclude, as it did in Grijalva,
that “responsible persons” other than the subject alien may be served with
notice on his or her behalf. For present purposes, however, we assume that
the regulation and Grijalva were valid applications of the statute, as the
OSC service on Chaidez did not comply with the statute even as inter-
preted in Grijalva.
6
The statute at the time of Huete provided that: “[T]he alien shall be
given notice, reasonable under all the circumstances, of the nature of the
charges against him and of the time and place at which the proceedings
will be held . . . .” 8 U.S.C. § 1252(b) (1988). 8 C.F.R. § 242.1(c) provided
at the time that
Service of the order to show cause may be accomplished either
by personal service or by routine service [regular mail]; however,
when routine service is used and the respondent does not appear
for [the] hearing or acknowledge in writing that he has received
the order to show cause, it shall be reserved by personal service.
See Huete, 20 I. & N. Dec. at 252.
CHAIDEZ v. GONZALES 1875
find that our holding in Huete continues to be applicable to
the accomplishment of service of the Order to Show Cause by
certified mail.” Id. Grijalva thereby imported the term “re-
sponsible person” from Huete, once again without explaining
the origin or meaning of the term.
[2] In Grijalva, the BIA went on to decline to extend the
“responsible person” delivery requirement for OSCs, the ini-
tial charging documents, to subsequently sent hearing notices,
holding with respect to the latter that
certified mail of such notice of deportation proceed-
ings which is sent to the respondent’s last known
address is sufficient and . . . proof of actual service
or receipt of the notice by the respondent is not
required. . . . There is no requirement that the certi-
fied mail return receipt be signed by the alien or a
responsible person at his address to effect service [of
a hearing notice].
Id. at 33-34. Grijalva concluded with respect to hearing
notices that a “presumption of effective service may be over-
come by the affirmative defense of nondelivery or improper
delivery by the Postal Service,” id. at 37, and provided guid-
ance for aliens seeking to rebut this presumption. See id.
(“[I]n order to support this affirmative defense, the [alien]
must present substantial and probative evidence such as docu-
mentary evidence from the Postal Service, third party affida-
vits, or other similar evidence demonstrating that there was
improper delivery or that nondelivery was not due to the
[alien’s] failure to provide an address where he could receive
mail.”). The BIA noted that the statute’s more stringent
requirement for service of an initial charging document, as
opposed to subsequent hearing notices, was supported by the
fact that after being served properly with an OSC “the alien
already had notice that he was in deportation proceedings and
would be notified of the calendared hearing,” id. at 34, cir-
cumstances that justify placing a lesser burden on the agency
1876 CHAIDEZ v. GONZALES
to keep the alien informed about the status of already-initiated
proceedings.7
The government contends, relying on our decision in Arri-
eta v. INS, 117 F.3d 429 (9th Cir. 1997) (per curiam), that
“the presumption of effective service . . . is relevant to this
matter in that certified mail receipts can generally only be
signed by a responsible party at the designated address.”
Addressing service of hearing notices, Arrieta concluded that
“Grijalva is correct that notice [of hearing] by certified mail
sent to an alien’s last known address can be sufficient under
the Act, even if no one signed for it.” Id. at 431. In Arrieta,
the alien’s hearing notice, sent by certified mail, was returned
“with an indication that delivery was ‘attempted.’ ” Id. at 430.
Arrieta contended that “although she had changed her resi-
dence, she continued to receive mail at the address she had
provided. . . . In support, Arrieta proffered her letter and a let-
ter from her brother stating that the certified mail notice was
never delivered to the . . . address.” Id. at 430-31. We held
that “[i]f a responsible person refuses to sign for the certified
mail or if the alien has changed address without notice, the
presumption of proper delivery in Grijalva is a reasonable
construction of the notice requirement of the statute,” id. at
431, and remanded the matter for the agency to determine
whether “Arrieta can establish that her mailing address has
remained unchanged, that neither she nor a responsible party
working or residing at that address refused service, and that
7
The current statute no longer has a requirement that notices to appear,
which replaced OSCs, or hearing notices be sent by certified, as opposed
to regular, mail. See 8 U.S.C. § 1229(a)(1), (a)(2)(A); see also Matter of
M-D-, 23 I. & N. Dec. 540, 546 (BIA 2002) (explaining that “the use of
regular mail [is] a convenience to the [INS], not . . . a mandate to use regu-
lar mail instead of certified mail. As in this case, the Service and the
Immigration Courts routinely use certified mail instead of regular mail in
many instances, although the degree of the use of certified mail varies
from region to region.”). We held in Salta v. INS, 314 F.3d 1076 (9th Cir.
2002), a hearing notice case, that Grijalva’s “strong presumption” of hear-
ing notice delivery had to be modified accordingly. Id. at 1079.
 CHAIDEZ v. GONZALES 1877
there was nondelivery or improper delivery by the Postal Ser-
vice,” id. at 432.
[3] Arrieta, however, dealt with service of a hearing notice,
not with service of an OSC. We have not held that a presump-
tion of effective service arises for an OSC, as opposed to a
hearing notice, sent by certified mail. The Second Circuit
explained the significance of this distinction in Fuentes-
Argueta v. INS, 101 F.3d 867 (2d Cir. 1996) (per curiam):
[T]he BIA has held that orders to show cause
under § 242B are considered to be served only upon
proof of actual receipt by the alien . . . . [T]he BIA
in Grijalva necessarily drew a distinction between
the requirements for service of notices of deportation
proceedings and the requirements for service of
orders to show cause. The Board reasoned that,
while § 242B employs the same language to describe
the general notice requirements for each, orders to
show cause and notices of deportation proceedings
are not treated identically elsewhere in § 242B. In
particular, § 242B(c)(1) — applicable to notices of
deportation proceedings but not to orders to show
cause — provides that “[t]he written notice by the
Attorney General shall be considered sufficient for
purposes of this paragraph if provided at the most
recent address provided” by the alien. 8 U.S.C.
§ 1252b(c)(1). The BIA interpreted this sentence to
mean that there is no requirement that anyone actu-
ally sign for a notification sent by certified mail —
only that it be sent to the alien’s last known address.
Id. at 871 (third alteration in original).
[4] The government nonetheless advocates a presumption
of effective service in the OSC context, taking the position
that a presumption should be applied that the Postal Service
properly discharged its duties and had the addressee or a
1878 CHAIDEZ v. GONZALES
responsible person at the alien’s address sign for the delivery.
We decline to adopt this rule, which would nullify the stat-
ute’s and Grijalva’s bifurcated approach to OSCs and hearing
notices by applying the same presumption of effective service
to certified mail delivery of both documents. As explained by
Adeyemo v. Ashcroft, 383 F.3d 558 (7th Cir. 2004), in which
the Seventh Circuit similarly rejected a presumption of effec-
tive service for OSCs:
The government . . . cites Grijalva for the proposi-
tions that “a bald and unsupported denial of receipt
of certified mail notices is not sufficient to support
a motion to reopen” and that the presumption of
proper delivery can only be rebutted by “substantial
and probative evidence . . . showing that there was
improper delivery.” See Grijalva, 21 I. & N. Dec. at
37. But . . . this passage from Grijalva concerns only
Notices of Hearing, to which the return-receipt
requirement does not apply. See id. at 34 (when a
Notice of Hearing is provided by certified mail,
“[t]here is no requirement that the return receipt be
signed by the alien or a responsible person at his
address to effect service”) (emphasis added). In con-
trast, there is such a requirement in the context of
delivering an Order to Show Cause.
Id. at 561-62 (alteration in original). We agree with the Sec-
ond and Seventh Circuits that Grijalva permitted a presump-
tion of effective service only for hearing notices. For OSCs,
service was proper only if the INS established that the return
receipt was signed by the alien or a responsible person at the
alien’s address.
[5] In this case, it is undisputed that Chaidez did not sign
for — or receive — the OSC. In the context of the presump-
tion “that postal officers properly discharge their duties,”
Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002), the issue
CHAIDEZ v. GONZALES 1879
therefore becomes whether Nevarez was a “responsible per-
son” at Chaidez’s address.
As mentioned above, the term “responsible person” is not
defined in the BIA’s case law. Nor has the United States
Postal Service’s Domestic Mail Manual (“DMM”) used the
term in the context of certified mail delivery or defined it.
Generally, the Postal Service’s delivery rules mandate that
“[i]f a signed receipt is required, mail will be delivered to the
addressee (or competent member of his family), to persons
who customarily receive his mail or to one authorized in writ-
ing to receive the addressee’s mail.” 39 C.F.R. pt. 3001 subpt.
C, app. A § 2023; see also Publication of Domestic Mail
Classification Schedule, 50 Fed. Reg. 28,144, 28,164 (June
28, 1985) (codifying this language in the Code of Federal
Regulations); DMM Issue 46 § D042.2.1 (July 1, 1993)
(describing an “addressee’s agent” as an employee, “a compe-
tent member of the addressee’s family, or . . . any person
authorized to represent the addressee”). If the sender did not
specifically restrict delivery recipients, an option that
Chaidez’s return receipt makes clear was not selected here,
the DMM in effect in January 1994 required delivery “to the
addressee or addressee’s authorized representative.” DMM
Issue 46 § S912.3.1.8
We need not definitively decide who are responsible per-
sons at an alien’s address. Even assuming that Grijalva’s “re-
sponsible person[s]” and the Postal Service’s “addressee’s
8
In June 1994, the DMM was revised to allow unrestricted certified mail
deliveries at an “apartment house . . . to any person in a position to whom
[sic] mail for that location is usually delivered.” Revisions, 59 Fed. Reg.
at 32,337. The current DMM continues to include this delivery option. See
DMM § 508.1.1.7(d) (available at http://pe.usps.com/text/dmm300/
508.htm). As this option did not appear for certified mail in the DMM
effective at the time Chaidez’s OSC was delivered, we do not address
whether such persons would be “responsible persons at an alien’s address”
and, if so, whether due process would be satisfied by leaving certified mail
with them. Cf. Jones v. Flowers, 126 S. Ct. 1708 (2006).
1880 CHAIDEZ v. GONZALES
authorized representative[s]” are coextensive groups, the
record must still demonstrate that Nevarez actually was a
responsible person at Chaidez’s address. Instead, as in the
proceedings at issue in Adeyemo, “[t]he IJ explicitly relied on
the BIA’s decision in Grijalva, not recognizing that the rea-
soning of that case [concerning when a return receipt does not
need to be signed by the addressee or a responsible person at
the alien’s address] is limited to Notices of Hearing, and does
not apply to Orders to Show Cause.” 383 F.3d at 560. Thus,
while, as in Adeyemo, the IJ here “declar[ed] that it did not
matter whether the [OSC was] received, so long as there was
proof of attempted delivery,” id., Grijalva in fact requires the
government to show that a “responsible person” at Chaidez’s
address signed the return receipt for his OSC. We therefore
turn to evaluating whether the government satisfied this
requirement.
b. Evidentiary Requirements
The statute clearly placed the evidentiary burden of demon-
strating proper OSC service on the government, and by a
heightened evidentiary standard. See 8 U.S.C. § 1252b(c)(1)
(1994) (when an alien fails to appear at a deportation hearing,
the government must establish proper notice “by clear,
unequivocal, and convincing evidence”). Because Grijalva
was a case in which OSC service was conceded by the alien,
see 21 I. & N. Dec. at 35, the BIA provided no guidance
regarding evidentiary requirements for OSC service. In Huete,
“[t]he registered mail return receipt [for the OSC] was
returned to the [INS] as unclaimed,” 20 I. & N. Dec. at 251,
so that decision is also unilluminating with regard to proof of
the “responsible person at the alien’s address” requirement.
[6] The Seventh Circuit has held that the government can
meet its burden of demonstrating OSC notice through receipt
by a responsible person at the alien’s address only by means
of some evidence indicating that a certified mail return receipt
signature in fact belongs to a responsible person at the alien’s
CHAIDEZ v. GONZALES 1881
address. In Tapia v. Ashcroft, 351 F.3d 795 (7th Cir. 2003),
the court denied a petition for review in which “Tapia con-
ceded before the IJ, and acknowledge[d] in his brief, that the
signature could be either his sister’s or his cousin’s, and while
the government offered no further proof that it was his sister’s
signature, Tapia did not call her to testify that it was not.” Id.
at 798. Adeyemo, by contrast, held that the government failed
to carry its burden because “[t]he illegible signature on the
return receipt . . . is not enough to create a presumption of
actual delivery to Adeyemo or a responsible person at his
address,” 383 F.3d at 562, given that Adeyemo “presented
evidence that the signature was neither his nor his ex-wife’s
and that there was no other responsible person living at his
address at the time,” id. at 561.
[7] This case is similar to Adeyemo, not to Tapia. Here, the
government offered no evidence indicating that Nevarez’s
signature may be that of a responsible person at Chaidez’s
address. The only indication of Nevarez’s status is that she
appears to have signed for both the OSC and Chaidez’s later
hearing notice. Although this consistency supports the propo-
sition that Nevarez was not simply a random passerby, it does
not establish that she was a responsible person at Chaidez’s
address. In his sworn declaration, Chaidez denied knowing
Nevarez, adding that he does not believe she resided at his
address during the relevant time and that she did not have
authorization to receive service for him. Cf. Celis-Castellano
v. Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002) (recognizing
that, in a motion to reopen, the agency “must accept the facts
in an alien’s affidavit as true unless inherently unbelievable”
(citing Maroufi v. INS, 772 F.2d 597 (9th Cir. 1985))).
[8] We conclude that the government has not met its bur-
den, established in former 8 U.S.C. § 1252b(c)(1) and expli-
cated in Grijalva, of demonstrating by clear, unequivocal, and
convincing evidence that Chaidez or a responsible person at
his address signed the certified mail return receipt for his
OSC. Accordingly, Chaidez’s deportation order is invalid. In
1882 CHAIDEZ v. GONZALES
light of this holding, the IJ’s erroneous determination that
Chaidez is ineligible for discretionary relief should be revis-
ited, if necessary, in any future proceedings.
III
For the reasons given, we grant the petition for review.
PETITION FOR REVIEW GRANTED.