                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2835
                                   ___________

Walid Aly Abola Ghounem,               *
                                       *
             Petitioner,               *
                                       *     Petition for Review of an Order
      v.                               *     of the Board of Immigration Appeals.
                                       *
John Ashcroft,                         *
                                       *
             Respondent.               *
                                 ___________

                             Submitted: May 12, 2004
                                Filed: August 4, 2004 (Corrected: August 12, 2004)
                                 ___________

Before MORRIS SHEPPARD ARNOLD, McMILLIAN, and MELLOY Circuit
Judges.
                        ___________

MELLOY, Circuit Judge.

       Walid Aly Abola Ghounem (“Ghounem”) petitions for review of an order of
the Board of Immigration Appeals (“BIA”) that affirmed without opinion an
Immigration Judge’s (“IJ’s”) denial of his Motion to Reopen his case. For the reasons
stated below, we grant the petition for review and remand the case to the BIA with
instructions.
                                       I. Facts

       This case has a long procedural history, most of which is irrelevant to the issue
we must resolve. Ghounem is a native of Egypt. On July 21, 1994,1 he entered the
United States as a nonimmigrant B-2 visitor with authorization to stay in the United
States until January 21, 1995. Ghounem remained in the United States after this
deadline passed. In 1996, he married Anna Marie Shaw, a United States citizen, in
New York City. The couple have been married over seven years and have three
children who are United States citizens. In 1999, Ghounem and his wife filed a
Petition for Alien Relative (I-130) and an Application to Register Permanent Resident
or Adjust Status (I-485), both of which were denied.

      The INS commenced removal proceedings against Ghounem and notified him
a removal hearing would be set. Ghounem received three pieces of mail regarding
the removal hearing: (1) a Notice to Appear dated January 31, 2002, (2) a Notice to
Appear dated February 1, 2002, and (3) a letter from INS District Counsel Karl Cozad
dated April 2, 2002. All three documents were delivered to 5 View Court, Florissant,
MO 63033. Ghouhnem’s current counsel, Gene McNary, filed an appearance with
the Immigration Service on February 2, 2002, and he received a copy of the April 2,
2002 letter from Mr. Cozad. Both the January 31, 2002 Notice to Appear and the
February 1, 2002 Notice to Appear indicated that the hearing would be held: “before
an immigration judge of the United States Department of Justice at 1222 Spruce St.,
Rm 1.100, St. Louis, Missouri on to be set (date) and to be set (time). . . .” (App.
001-002.) The April 2, 2002 letter from Mr. Cozad indicated that the “hearing
[would] be scheduled to occur in the Immigration Court Hearing room, at 1222
Spruce Street, Room 1.100, St. Louis, MO.” (App. 004.) Mr. Cozad indicated that


      1
        The Government claims in its brief that Ghounem entered the United States
on or about February 5, 1999. (Respondent’s Brief at 3.) We see no support for this
statement in the record.

                                          -2-
the Office of the Immigration would notify Ghounem of the date and time of the
hearing.

       INS records indicate the Immigration Court sent a Notice of Hearing In
Removal Proceedings to Ghounem’s address on View Court on April 9, 2002. This
notice informed Ghounem that his “case ha[d] been scheduled for a MASTER hearing
before the Immigration Court on June 25, 2002 at 9:00 a.m. at 1222 Spruce Street, 1st
floor, St. Louis, MO 63103.” (App. 005.) Ghounem claims he never received this
notice. The Immigration Court did not send Mr. McNary notice because Mr. McNary
had entered his appearance with the Immigration Service, but not the Immigration
Court.2

      On June 25, 2002, the IJ held Ghounem’s removal hearing in absentia. The IJ
found that “[a] notice of the scheduled hearing was sent to the respondent at the last
address provided” and that “this notice also advised that a failure to appear may result
in an order of removal.” (June 25, 2002 Decision of the IJ, at App. 006.) The IJ
found “clear, unequivocal, and convincing” evidence of removability and ordered that
Ghounem be removed from the United States to Egypt. Id. On or about June 26,


      2
       Though Mr. McNary had filed an appearance with the Immigration Service,
he was not yet Ghounem’s counsel of record with the Immigration Judge because he
had not filed an appearance with the Immigration Court as required by 8 C.F.R.
1003.17(a) (“In any proceeding before an Immigration Judge in which the alien is
represented, the attorney or representative shall file a Notice of Appearance on Form
EOIR-28 with the Immigration Court and shall serve a copy of the Notice of
Appearance on the [Immigration] Service as required by 8 CFR 1003.32(a). Such
Notice of Appearance must be filed and served even if a separate Notice of
Appearance(s) has previously been filed with the [Immigration] Service for
appearance(s) before the [Immigration] Service.”); see also In re: Khader Qumsieh,
2004 WL 848562 (BIA) (February 24, 2004) (Unpublished).



                                          -3-
2002, the Immigration Judge’s decision was mailed to Ghounem at his address on
View Court, and Ghounem received it.

       On July 8, 2002, Ghounem’s counsel, Mr. McNary, filed an appearance with
the Immigration Court and a Motion to Reopen pursuant to 8 U.S.C. 1229a(c)(6). He
argued that neither Ghounem nor his attorney received notice of the date, time, and
place of the June 25 hearing. Ghounem and his attorney submitted affidavits in which
they stated that they were not notified of the date and time of the hearing.

       The IJ denied the Motion to Reopen, finding that hearing notice, including the
date, time, and location of the hearing, had been sent to Ghounem at 5 View Court,
Florissant, MO 63033 on April 9, 2002. The IJ also found that Ghounem’s attorney
did not receive notice because he did not file an appearance until July 8, 2002. The
IJ held:

      Under Matter of Grijalva, Interim Decision 3246 (BIA 4/28/95), the
      Court’s notice is effective if sent to the last known address of the
      alien–proof of actual receipt of notice is not required. In summary, the
      respondent was properly notified of his removal hearing and has not
      established “exceptional circumstances” excusing his appearance.

(September 27, 2002 Decision of the IJ, at App. 020.) On June 17, 2003, the BIA
issued an order that affirmed, without opinion, the decision of the IJ. See 8 C.F.R.
§ 1003.1(e)(4) (outlining the affirmance without opinion procedure). On the same
date, Ghounem filed a Petition for Review of the denial of the Motion to Reopen with
this Court.

      Ghounem surrendered himself to the custody of the Department of Homeland
Security on August 6, 2003. However, when Ghounem arrived at the Immigration
and Customs Enforcement Office in St. Louis, the deportation officers sent him home
because they had not yet prepared his travel documents. A second notice arrived, and

                                        -4-
Ghounem was ordered to surrender himself on September 10, 2003. This Court
denied a Motion for Stay of Removal pending this Petition for Review. The INS
deported Ghounem to Egypt on September 11, 2003.

                                    II. Discussion

A. Standard of Review
       “Because the BIA affirmed the IJ without opinion, we review the IJ’s decision
directly as the final agency action.” Gebrehiwot v. Ashcroft, – F.3d –, 2004 WL
1440648, *2 (8th Cir. June 29, 2004); see Loulou v. Ashcroft, 354 F.3d 706, 708 (8th
Cir. 2004). “We review the denial of a motion to reopen for an abuse of discretion.”
Nativi-Gomez v. Ashcroft, 344 F.3d 805, 807 (8th Cir. 2003).

B. Statutory Background
       The Immigration and Nationality Act (“INA”) allows an IJ to hold removal
proceedings in absentia if aliens are given proper notice. The current statute provides
that written notice in removal proceedings 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). This is in contrast to the
predecessor provision, 8 U.S.C. § 1252b, which provided that written notice be in
person or sent by certified mail, return receipt requested. 8 U.S.C. § 1252b(a)(1)
(1995) (“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).”); 8 U.S.C. § 1252b(f)(1) (1995) (“The term ‘certified mail’
means certified mail, return receipt requested.”).

     Under the current statute, if notice is proper and an alien fails to appear, the IJ
may order the alien removed:



                                          -5-
      Any alien who, after written notice required under paragraph (1) or (2)
      of section 1229(a) of this title has been provided to the alien or the
      alien’s counsel of record, does not attend a proceeding under this
      section, shall be ordered removed in absentia if the [Immigration]
      Service establishes by clear, unequivocal, and convincing evidence that
      the written notice was so provided and that the alien is removable (as
      defined in subsection (e)(2) of this section).

8 U.S.C. § 1229a(b)(5)(A).

      If an alien is ordered removed after an in absentia hearing, the alien may file
a Motion to Reopen if the alien demonstrates that the alien failed to appear because
of “exceptional circumstances” or for lack of notice:

      Such an order may be rescinded only—
             (i) upon a motion to reopen filed within 180 days after the date of
      the order of removal if the alien demonstrates that the failure to appear
      was because of exceptional circumstances (as defined in subsection
      (e)(1) of this section), or
             (ii) upon a motion to reopen filed at any time if the alien
      demonstrates that the alien did not receive notice in accordance with
      paragraph (1) or (2) of section 1229(a) of this title or the alien
      demonstrates that the alien was in Federal or State custody and the
      failure to appear was through no fault of the alien.

Id. at § 1229a(b)(5)(C).

C. Analysis
       On appeal, Ghounem argues that the IJ abused his discretion by applying the
evidentiary requirements in Matter of Grijalva, 21 I & N Dec. 27 (BIA), in denying
Ghounem’s Motion to Reopen. He argues that while a strong presumption of
effective delivery was appropriate under the old statute that required service by
certified mail, the fact that the new statute allows notice to be sent by regular mail


                                         -6-
requires us to apply a weaker presumption of delivery and lesser evidentiary
requirements to rebut that presumption. We agree.

       In Grijalva, the respondent was charged with deportability, and the Office of
the Immigration Judge sent notice of a removal hearing by certified mail, return
receipt requested, pursuant to 8 U.S.C. § 1252b. Grijalva, 21 I & N Dec. at 28. The
Office of the Immigration Judge received the certified mail return receipt, which
indicated that the mail was unclaimed despite multiple attempts to deliver the mail to
the respondent. Id. at 29. The respondent failed to appear at the hearing, the hearing
was held in absentia, and the IJ ordered the respondent be deported. Id. The
respondent filed a Motion to Reopen and claimed that he had not received notice of
the hearing. Id. The IJ denied the Motion to Reopen, finding “that the respondent
was properly notified of the hearing in question because the notice, though
unclaimed, was sent to him by certified mail to his last known address.” Id.

       On appeal, the BIA found “that the Immigration Judge properly denied the
motion to reopen because the respondent failed to demonstrate that he did not receive
notice of the deportation proceeding.”3 Id. at 36. The BIA found further “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 certified mail, a strong presumption of effective service arises.” Id. at
37. To combat the presumption of effective service, the BIA found the respondent
was required to “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 or that nondelivery was not due to the
respondent’s failure to provide an address where he could receive mail.” Id.

      3
        Though the BIA expressed approval of the IJ’s findings, the BIA remanded
the case for development of the record because of the “particular circumstances” of
the case, “including the absence of implementing regulations or precedent regarding
the notice issues raised on motion to reopen.” Grijalva, 21 I. & N. at 37.

                                          -7-
       The BIA in Grijalva found that a “strong presumption of effective
service”arises when the Office of the Immigration Judge sends notice by certified
mail. We see no reason to extend this strong presumption to cases in which notice
was sent by regular mail. We think it appropriate that a stronger presumption should
apply when certified mail is used to send notice because of the extra assurances of
effective delivery included in the United States Postal Service’s certified mail system.

       In addition, the required evidentiary showing set out in Grijalva is not easily
applicable to regular mail. Grijalva suggests that to rebut the presumption of
delivery, a respondent must present “evidence such as documentary evidence from
the Postal Service, third party affidavits, or other similar evidence demonstrating that
there was improper delivery.” Id. In the common case of failed delivery through
regular mail, these types of evidence do not exist. The only proof of non-delivery is
the respondent’s statement that he or she did not receive notice. In Grijalva, the BIA
stated that “[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 under [8
U.S.C. § 1252b].” Id. If this were the standard under the current statute, we would
leave respondents virtually without recourse to rebut the presumption of effective
delivery. It was, therefore, an abuse of discretion for the IJ to apply the Grijalva
evidentiary requirements in denying Ghounem’s Motion to Reopen.

       Support for our holding comes from Salta v. INS, 314 F.3d 1076 (9th Cir.
2002). The facts of Salta are similar to those at hand, and the issue was identical:
“[H]ow an alien may meet the burden of demonstrating lack of notice under the new
statute.” Salta, 314 F.3d at 1079. The Ninth Circuit found that regular mail was not
entitled to the same presumption of effective delivery as certified mail. See Id.
(“Although 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 required to rebut such a presumption.” (internal
citation omitted)). Instead, the court held:

                                          -8-
             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 Salta 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 Salta to an
      evidentiary hearing to consider the veracity of her allegations.

Id. We find the rule in Salta sound.

      In this case, the Ghounems filed a Petition for Alien Relative and an
Application to Register Permanent Resident or Adjust Status in hopes of obtaining
a benefit. Ghounem appeared before the INS several times since his entry into the
country and had nothing to gain by failing to appear at his removal hearing. He
submitted an affidavit swearing that he did not receive notice of the hearing.
Considering these facts, Ghounem’s sworn statement is enough to rebut the
presumption of delivery created by INS records that it sent Ghounem notice by
regular mail, and Ghounem is entitled to an evidentiary hearing on the matter.

                                 III. Conclusion

       Because we grant relief based on the IJ’s application of an erroneous
evidentiary standard in denying Ghounem’s Motion to Reopen, it is not necessary for
us to consider Ghounem’s due process arguments. We remand to the BIA with
instructions to remand to the IJ to conduct an evidentiary hearing to determine
whether Ghounem should be permitted to reopen his case.
                       ______________________________




                                        -9-
