                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-22-2007

Santana-Gonzalez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2965




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                                        PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                  __________

                     No. 06-2965
                     __________

    HAIDEE DE REGLA SANTANA GONZALEZ,
                               Petitioner

                         vs.

            ATTORNEY GENERAL OF
             THE UNTIED STATES,
                                          Respondent
                    __________

        On Petition for Review of an Order of
          the Board of Immigration Appeals
              U.S. Department of Justice
               (BIA No. A97-437-427)
         Immigration Judge: Daniel Meisner

                    __________

     Submitted Under Third Circuit L.A.R. 34.1(a)
                September 20, 2007


Before: SLOVITER, SMITH, and GARTH, Circuit Judges.

          (Opinion Filed: October 22, 2007)



                      OPINION
Garth, Circuit Judge


       In 1997, Congress amended the Immigration and
Nationality Act (“INA”) to allow a notice of removal hearing to be
served on an alien by regular mail, as opposed to certified mail,
return receipt requested. In this case, an Immigration Court sent
Petitioner Haidee de Regla Santana Gonzalez (“Petitioner”) a
notice of hearing by regular mail, which Petitioner claims she
never received. The questions presented in her Petition are
essentially twofold: (1) what presumption of receipt attaches to a
notice of hearing sent by regular mail; and (2) how an alien
claiming non-receipt of a notice sent by regular mail can rebut that
presumption, thereby entitling her to an evidentiary hearing on that
claim. We will grant her Petition.
                                 I.
       Petitioner is a 35 year old native and citizen of Cuba. She
arrived at Newark International Airport on November 5, 2003,
without a valid visa or valid entry document. Upon arrival, a
Department of Homeland Security (“DHS”) officer apprehended
her. Petitioner then informed the officer that she feared returning
to Cuba. As a result, the DHS paroled her into the United States.

       The DHS immediately served Petitioner with a Notice to
Appear. The Notice to Appear charged her as removable under
Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1182(a)(7)(A)(i)(I).1 Additionally, the Notice
to Appear listed Petitioner’s address as “721 25th Street, Union
City, New Jersey 07087,” which was the address she gave the DHS
upon arrival and the residence where her uncle, his wife, and their
son lived.



  1
   This statute renders inadmissible any alien who, at the time of
application for admission, was not in possession of a valid
unexpired immigrant visa, reentry permit, border crossing card,
or other valid entry document, and a valid unexpired passport, or
other suitable travel document. 8 U.S.C. § 1182(a)(7)(A)(i)(I)

                                 2
        The Notice to Appear did not provide a date for the
Petitioner to appear before an Immigration Judge (“IJ”). Instead,
it only ordered Petitioner to appear before an IJ in Newark, New
Jersey, on a date “to be set” at a time “to be set.” The Notice to
Appear also stated that Petitioner should immediately notify the
Immigration Court “in writing” on “Form EOIR-33” of any
address change.
       On January 7, 2004, the Immigration Court in Newark, New
Jersey sent a Notice of Hearing to Petitioner’s Union City address.
The Notice of Hearing stated that the Immigration Court had
scheduled her case for a hearing on January 15, 2004. This notice
was sent via ordinary first-class mail.
       Petitioner resided at the Union City address from her arrival
in November 2003 until the beginning of January 2004. She then
moved to Homestead, Florida. During her stay in Union City,
Petitioner claims she never received the Notice of Hearing.
Petitioner further claims that, before moving to Homestead, her
uncle’s wife called the DHS to advise it of the Petitioner’s
impending move.
       After moving to Homestead, Petitioner asked the Florida
Department of Children & Families Services for assistance with
her immigration case. According to Petitioner, a person affiliated
with the organization called the DHS’s Newark office to advise it
that Petitioner had moved to Homestead, Florida. Petitioner claims
that, during her stay in Homestead, her uncle had been asked by
Petitioner to forward any mail addressed to her in Union City to
her new address in Homestead. According to Petitioner, she never
received any Notice of Hearing from her uncle while in
Homestead.
       On January 15, 2004, the Immigration Court held
Petitioner’s removal hearing.        Petitioner did not appear.
Accordingly, the IJ issued an in absentia order removing Petitioner
to Cuba.
      In February 2004, Petitioner moved to Las Vegas, Nevada.
Upon arriving in Las Vegas, Petitioner communicated with the
Catholic Charities of Southern Nevada, as well as her present
counsel, for assistance with her immigration case. In September


                                 3
2004, Petitioner’s counsel discovered the in absentia removal
order after calling the Executive Office of Immigration Review.
Petitioner then filed a motion to rescind the removal order and to
reopen her immigration case.        I n h e r mo t i o n t o r e o p e n ,
Petitioner submitted an affidavit stating that she had not received
the Notice of Hearing while living in Union City. The affidavit
also stated that her uncle did not send her any Notice of Hearing
after she moved to Florida, nor did he advise her of any notice sent
to Petitioner at his Union City address. The IJ denied her motion
without a hearing. The IJ found that Petitioner failed to provide
sufficient evidence tending to establish non-receipt of the Notice
of Hearing. Specifically, the IJ noted that the Notice of Hearing
“was not returned as undeliverable” and that Petitioner failed “to
provide probative evidence that tends to plausibly explain or
confirm the claim of nondelivery.”
        Petitioner then appealed to the Bureau of Immigration
Appeals (“BIA”). In her submission to the BIA, Petitioner argued
that the IJ erred in holding that she failed to rebut the presumption
of receipt of the Notice of Hearing. Petitioner also argued that,
under Salta v. INS, 314 F.3d 1076 (9th Cir. 2002), she was entitled
to an evidentiary hearing regarding her claim of non-receipt. The
BIA disagreed. In a written decision, the BIA affirmed the IJ’s
holding that Petitioner failed to rebut the presumption of effective
delivery. Specifically, the BIA relied on Matter of Grijalva, 21
I&N Dec. 27 (BIA 1995), and held that the Notice of Hearing was
entitled to a “presumption of effective delivery.” The BIA also
rejected Petitioner’s claim that she was entitled to an evidentiary
hearing regarding non-receipt of the notice. On this point, the BIA
stated:
         Finally, while [Petitioner] asserts that her
         relatives forwarded all her mail to her in Florida,
         but did not forward the Notice of Hearing, she
         has failed to provide an affidavit from them so
         stating.
       This Petition for Review timely followed. The Petition,
among other things, sought a reversal of the BIA’s order, an
order rescinding and reopening removal proceedings, and an
order remanding those proceedings to the BIA with instructions


                                   4
to remand to the IJ.
                                II.
       We exercise jurisdiction to review the BIA’s final order of
removal under Section 242(a) of the INA, 8 U.S.C. § 1252(a).
Because the BIA adopted the findings of the IJ and also
commented on the sufficiency of the IJ’s determinations, this
Court reviews the decisions of both the BIA and the IJ. See Xie
v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). We review these
decisions under the highly deferential “abuse of discretion”
standard. INS v. Abudu, 485 U.S. 94, 105 (1988); Guo v.
Ashcroft, 386 F.3d 556, 562 (2004).              As such, these
determinations “‘will not be disturbed unless they are found to be
arbitrary, irrational, or contrary to the law.’” Guo, 386 F.3d at
562 (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994)).
                               III.
        The INA allows an IJ to hold removal proceedings in
absentia if the alien was provided proper written notice of the
proceeding. 8 U.S.C. § 1229a(b)(5)(A). Under the INA, written
notice must be “given in person to the alien (or, if personal
service is not practicable, through service by mail to the alien or
to the alien’s counsel of record, if any).” 8 U.S.C. § 1229(a)(1).
An in absentia removal order may be rescinded, though, if the
alien demonstrates that (1) she was in Federal or State custody
and her failure to appear was through no fault of her own, (2) she
“did not receive notice” of the hearing, or (3) her failure to
appear was because of exceptional circumstances. 8 U.S.C. §
1229a(b)(5)(C). Our focus here is on the second means of
rescinding an in absentia removal order: non-receipt of notice.
As the word “receive” indicates, the key question in reopening a
removal proceeding for lack of notice is not whether the
Immigration Court properly mailed the notice to the alien, but
whether the alien actually received the notice. Lopes v. Gonzales,
468 F.3d 81, 83 (2d Cir. 2006) (citing Joshi v. Ashcroft, 389 F.3d
732, 736 (7th Cir. 2004)).
       We turn first to the appropriate standard to be employed
in determining the receipt of a notice of hearing sent by regular
ordinary mail.


                                5
                                  A.
       The IJ found Petitioner’s affidavit insufficient grounds for
reopening her case, stating that Petitioner failed to “provide
probative evidence that tends to plausibly explain or confirm the
claim of nondelivery.” The BIA similarly found Petitioner’s
affidavit insufficient, holding that she had “not overcome the
presumption of effective delivery,” citing to its own precedent in
Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995).
        The presumption derived from Matter of Grijalva
involved service of a notice of hearing by certified mail. Prior to
1997, a notice of removal hearing could only be served by
certified mail, return receipt requested.               8 U.S.C. §
1252b(a)(2)(A) (“In deportation proceedings under section 1252
of this title, written notice ... 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).”) (repealed, effective 1997); 8 U.S.C. §
1252b(f)(1) (“The term ‘certified mail’ means certified mail,
return receipt requested.”) (repealed, effective 1997).2 In


  2

 This change was apparently aimed at making in absentia orders
easier to obtain and easier to enforce in the face of motions to
reopen. For instance, in remarks documenting the change, which
were contained in Section 304 of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, the House Judiciary
Committee commented:

         [T]here are often protracted disputes concerning
         whether an alien has been provided proper notice
         of a proceeding. This impairs the ability of the
         government to secure in absentia deportation
         orders in cases where aliens fail to appear for
         their hearings; in many such cases, aliens will
         petition to reopen their hearings on the grounds
         that they never received proper notice.

         Section 304 addresses these problems with a

                                  6
Grijalva, the BIA held:
        [I]n 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 certified mail, a strong
        presumption of effective service arises. There is
        a presumption that public officers, including
        Postal Service employees, properly discharge
        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.... (emphasis added)
        This presumption of effective service may be overcome by
the affirmative defense of nondelivery or improper delivery by the
Postal Service. However, 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



        number of new requirements. First, it requires the
        INS to establish a central address file to
        accurately record address information, including
        changes provided by aliens. Second, it provides
        that service by mail of the required notice of
        hearing is sufficient if there is proof of delivery to
        the most recent address provided by the alien.
        Third, it authorizes the immigration judge to enter
        an in absentia order if the alien fails to appear
        provided that there is proof of attempted delivery
        at this address. Fourth, it allows an alien to
        rescind an in absentia order only in the case of
        specified exceptional circumstances or if the alien
        demonstrates that notice was not received
        notwithstanding the alien’s compliance with the
        notice of address requirements.

H.R. Rep. No. 104-469, at 159 (1996).

                                  7
there was improper delivery.
       Matter of Grijalva, 21 I&N Dec. at 37 (internal citation
omitted). Accordingly, Grijalva stands for the proposition that a
“strong presumption” of effective service of a notice of hearing
arises when the notice is sent by certified mail, and this
presumption may only be overcome by presenting “substantial and
probative evidence.”
        Since 1997, however, a notice of hearing may be served by
regular mail. 8 U.S.C. § 1229(a)(1). In other contexts, we have
long recognized a presumption that ordinary regular mail properly
sent is presumed to be received. See, e.g., Welch & Forbes Inc. v.
Cendant Corp. (In re Cendant Corp. Prides Litig.), 311 F.3d 298,
304 (3d Cir. 2002) (“The common law has long recognized a
presumption that an item properly mailed was received by the
addressee.”) (citations omitted). Such a presumption in the case of
ordinary regular mail is to be contrasted with the “strong
presumption” required in Grijalva in the case of certified mail,
particularly since certified mail carries with it extra assurances of
effective delivery that are absent when letters are sent via ordinary
means. The difference in the strength of presumption, and in its
effect when applied, is a difference which we recognize and
approve, as have other courts of our sister circuits. Lopes v.
Gonzales, 468 F.3d 81, 85 (2d Cir. 2006); Nibagwire v. Gonzales,
450 F.3d 153, 156-57 (4th Cir. 2006); Joshi v. Ashcroft, 389 F.3d
732, 736-37 (7th Cir. 2004); Ghounem v. Ashcroft, 378 F.3d 740,
744-45 (8th Cir. 2004); Salta v. INS, 314 F.3d 1076, 1079 (9th Cir.
2002).
      The Ninth Circuit in Sembiring v. Gonzales, --- F.3d ---,
No. 04-74076, 2007 U.S. App. LEXIS 20211 (9th Cir. Aug. 24,
2007), relied upon its holding in Salta that “a weaker
presumption” of effective service applies to service by regular
mail. The court stated as follows:
        Under Salta, less evidence was required to
        overcome the presumption of effective service
        than under Grijalva. This lower evidentiary
        standard makes good sense. If a letter is sent by
        certified mail, there is a paper trail in Postal
        Service records showing both mailing and receipt

                                 8
        (or non-receipt). By contrast, there is no Postal
        Service paper trail for regular mail. There is
        seldom any administrative paper trail either, other
        than a copy of the notice in question and,
        sometimes, a copy of the envelope in which the
        notice was sent.
        As we previously held in Salta, “some of the
        Grijalva-Arrieta proof requirements (e.g.,
        documentary evidence from the Postal Service,
        third party affidavits indicating improper
        delivery, etc.) ... clearly have no application under
        a regular mail regime.” [Salta,] 314 F.3d at 1080.
        If the evidence described in Grijalva “were the
        standard under the current statute, we would
        leave respondents virtually without recourse to
        rebut the presumption of effective delivery.”
        Ghounem, 387 F.3d at 744. Such a result would
        defeat the purpose of Congress’s express
        authorization for rescission of in absentia removal
        orders when the alien “did not receive notice.” 8
        U.S.C. 1229a(b)(5)(C)(ii).
Sembiring, supra at *17-18. We now hold, as do those courts,
that Grijalva’s strict evidentiary standard – a strong presumption
– applies only when a notice from an Immigration Court or the
INS (or Department of Homeland Security) is sent by certified
mail, and that a weaker presumption of receipt applies when such
a notice is sent by regular mail.
                                B.
       The second issue before us is what an alien, such as
Petitioner, must do to demonstrate that she did not receive a
notice of hearing.3 In her motion to reopen, Petitioner essentially


  3

In denying Petitioner’s motion to reopen, the IJ stated, “Even
ordinary mail delivery entails a presumption of receipt provided the
letter is properly addressed.” In the Matter of Haidee de Regla
Santana-Gonzalez, File No. A 97 437 427 (EOIR June 9, 2005)

                                 9
submitted three items to the IJ: (1) a brief, which included a
statement of facts and legal argument; (2) an affidavit from
herself; and (3) an affidavit from her counsel, which attached her
entire immigration file obtained from the DHS. Petitioner’s
affidavit was the only piece of evidence directly supporting her
claim of non-receipt. It stated:
       10. During the two months I resided in Union City, New
       Jersey, I did not receive a Notice of Hearing advising me
       of the date to appear before the Immigration Court in
       Newark, New Jersey.4
       12. In January of 2004, I moved to 15023 SW 302,
       Homestead, FL 33033. But, my uncle continued to reside
       at 721 25th Street, Union City, NJ 07087 with his wife
       and son.


(Meisner, I.J.) (citing Rosenthal v. Walker, 111 U.S. 185 (1894)).
Thereafter, as we recite in the text above, the BIA affirmed the IJ
citing Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995). As we
have recognized, the presumption in Grijalva is a far stronger
presumption of effective delivery than the presumption of effective
delivery by ordinary regular mail. The BIA having applied the
stronger [certified mail] presumption rather than the weaker
[regular mail] presumption, understandably leaves us uncertain as
to the quality and sufficiency of evidence now required to rebut the
presumption of effective delivery of a hearing notice when the
addressee claims non-receipt. The application of two different
standards by the IJ and the BIA clouds the principle of which
presumption applies to Petitioner’s evidence.          This is so
particularly since the 1894 Supreme Court precedent cited by the
IJ could not and did not take into account the more recent statutes
which we have discussed dealing with certified and regular mail
delivery. To the extent that the BIA applied an incorrect
presumption under Grijalva, the BIA did not properly exercise its
discretion. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994)
(“Discretionary decisions of the BIA irrational, or contrary to
law.’”).
  4
  The Petitioner misnumbered the paragraphs in her affidavit,
omitting the number eleven.

                               10
       13. My uncle, his wife and son regularly sent me mail that
       was addressed to me at 721 25th Street, Union City, NJ
       07087.
       14. My uncle, his wife and son did not send me or advise
       me of any mail from the Immigration Court or the
       Department [of Homeland Security] advising me to appear
       in Court on January 15, 2004.
        Has the Petitioner here rebutted this weaker presumption
of receipt which attends ordinary regular mail? The Ninth
Circuit’s decision in Salta v. INS, 314 F.3d 1076 (9th Cir. 2002),
is instructive. The facts of Salta are similar to those at issue here.
In Salta, the issue before the court was: “[H]ow an alien may
meet the burden of demonstrating lack of notice under the new
statute,” which allows service by ordinary mail. Salta v. INS, 314
F.3d 1076, 1079 (9th Cir. 2002). The Ninth Circuit held, as we
do, that service of such notices by ordinary mail is not entitled to
the same presumption as service by certified mail. Id. The Court
then held:
         Where a petitioner actually initiates a proceeding
         to obtain a benefit, appears at an earlier hearing,
         and has no motive to avoid the hearing, a sworn
         affidavit from [petitioner] that neither she nor a
         responsible party residing at her address received
         the notice should ordinarily be sufficient to rebut
         the presumption of delivery and entitle
         [petitioner] to an evidentiary hearing to consider
         the veracity of her allegations.
Id. Thus, under Salta, submission of an affidavit by an alien
claiming non-receipt of a notice of hearing by him or her, or a
responsible person residing at her address, along with
circumstantial evidence corroborating the alien’s claims of non-
receipt may ordinarily be sufficient to raise a factual issue
requiring an evidentiary hearing before the IJ.
       After Salta, the Ninth Circuit further clarified the required
evidentiary showing to entitle an alien to a hearing. In
Sembiring, an alien, Sembiring, was ordered deported in absentia
after she claimed that she had failed to receive a notice


                                 11
rescheduling her deportation hearing. When Sembiring appeared
on the original date of her hearing, she was notified that she had
already been ordered deported six days earlier. Sembiring then
wrote a letter to the IJ claiming non-receipt of the rescheduling
notice. The letter was signed, but was neither sworn nor verified.
Her letter was construed as a motion to reopen. The IJ denied
this motion mainly because Sembiring failed to provide a sworn
statement that she never received the notice rescheduling her
hearing. The BIA affirmed.
       Sembiring then applied Salta and held that the IJ and BIA
abused their discretion by failing to reopen her proceedings.
Specifically, the court noted that while “[w]e noted in Salta that
an affidavit is one way to establish non-receipt of a notice sent by
regular mail ... a sworn affidavit is not always necessary.”
Sembiring, 2007 U.S. App. LEXIS 20211, at *23. The court
further stated that “[t]he test for whether an alien has produced
sufficient evidence to overcome the presumption of effective
service by regular mail is practical and commonsensical rather
than rigidly formulaic.” Id. at * 18.
       The Sembiring court noted that Sembiring brought herself
to the government’s attention by seeking asylum, thereby
showing that she did not have a motive to avoid the hearing. Id.
at *18-21. Furthermore, the record showed that she actually
appeared at the originally scheduled hearing. Id. at *21-22.
Moreover, the government’s evidence did not clearly show that
it was actually mailed to Sembiring’s address. Id. at *22-23.
Nevertheless, based on these facts, the Ninth Circuit held that “a
sworn affidavit was not required to establish that Sembiring did
not receive notice....” Id. at 23. Instead, the court stressed that:
        [T]he inquiry contemplated by Salta is a practical
        one under which many forms of evidence are
        relevant. If there is enough evidence to overcome
        the presumption of effective service without a
        sworn affidavit, the absence of such affidavit is
        not fatal to petitioner’s [motion to reopen for
        non-receipt of notice].
Id. at *23. Therefore, the court held that Sembiring had
sufficiently rebutted the presumption of receipt and vacated the

                                12
in absentia removal order.
       Petitioner, like Sembiring, may not have had a motive to
avoid the scheduled hearing. She had little to gain by failing to
appear at the hearing. Moreover, as a native and citizen of Cuba,
she was entitled to apply for adjustment of status under the
Cuban Adjustment Act, Pub. L. No. 89-732, Stat. 1161 (1966)
(reproduced as historical note to 8 U.S.C. § 1255), which would
allow her to apply for permanent residency after only one year of
residing in the United States.
        Furthermore, circumstantial evidence in the record
disclosed that Petitioner at all times sought to have a hearing to
adjust her status. While Petitioner had not filed a Form EOIR-33
notifying the Immigration Court of her address change, she had
sought to acquaint the DHS with her change of address by having
her uncle’s wife, along with the Florida Department of Children
& Families Services and the Catholic Charities of Southern
Nevada, inform the DHS of her change of address. Petitioner
also took affirmative action to have her counsel inquire as to her
immigration status. It was only after her counsel investigated her
status that she learned that an in absentia order had been issued
removing her. As a result of her counsel’s actions, counsel’s
affidavit attached the file that he had received through his
Freedom of Information Act (FoIA) request. That file included
the additional information which is summarized above. These
attempts to communicate with the DHS, as reflected by the
record, additionally support Petitioner’s claim that she had not
received notice of any hearing and might now suffice to rebut the
presumption of effective notice which we announce today.
       We do not wish to imply that, based on these
circumstances, the IJ should have rescinded the in absentia order
and reopened Petitioner’s removal hearing. Indeed, it is
significant that petitioner failed to follow the clear requirement
that she give written notice of any change in her address, a fact
that needs to be considered by the IJ in making the ultimate
decision. The facts recited above, though, do appear relevant in
determining whether Petitioner has rebutted the presumption of
receipt of the Notice of Hearing.
       In light of the fact that our decision today adopts a less

                               13
stringent standard for determining the presumption of receipt for
notices of hearing sent by regular mail rather than the strong
presumption employed by the BIA, see Grijalva, 21 I&N Dec.
27, and thus establishes a new and different standard when
regular mail is used, we will vacate the BIA’s order of May 9,
2005. Additionally, we will remand to the BIA with directions
to reopen the in absentia order of removal and direct the BIA to
instruct the IJ on remand to apply the less stringent presumption
to the evidence which Petitioner may produce.5 See Adarand
Constructors v. Pena, 515 U.S. 200, 237 (1995) (remanding to
lower court for application of new standard to facts presented).




  5

In view of our opinion announcing a standard – a standard for
regular mail notices – which in this case requires a remand to the
IJ, we have no need to address the other arguments made by
Petitioner, both of which involve the non-receipt of the hearing
notice.

                               14
