                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                 December 1, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-60361
                         Summary Calendar


                         RAHIM MAKNOJIYA,

                                                          Petitioner,

                              versus

           ALBERTO R. GONZALES, U.S. Attorney General,

                                                          Respondent.



              Petition for Review of an Order of the
                   Board of Immigration Appeals


Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:

          Rahim Maknojiya petitions this court for review of the

Board of Immigration Appeals’ (“BIA”) decision denying his appeal

from a decision of the Immigration Judge (“IJ”) that denied his

motion to reopen proceedings and to rescind the order of removal

that was entered against him in absentia.

          Maknojiya argues here, as he did before the IJ and the

BIA, that he did not receive notice of the hearing date and that

the IJ’s decision denying his motion to reopen was an abuse of

discretion.

          This court reviews a denial of a motion to reopen under

a “highly deferential abuse-of-discretion standard.”           Zhao v.
Gonzales, 404 F.3d 295, 303 (5th Cir. 2005).         An alien who does not

attend a hearing after written notice has been provided to the

alien or the alien’s counsel of record shall be ordered removed in

absentia if the INS establishes by clear, unequivocal, and con-

vincing evidence that the written notice was so provided and that

the alien is removable.      8 U.S.C. § 1229a(a)(5).       However, an in

absentia removal order may be rescinded upon a motion to reopen

filed at any time if it can be demonstrated that the alien did not

receive     notice.   8   U.S.C.   §       1229a(a)(5)(C)(ii);   8   U.S.C.

§ 1229(a)(1) and (2).

            Maknojiya concedes that he and his counsel received

notice that the hearing was set for March 11, 2003.          The March 11,

2003, hearing notice is in the administrative record. However, the

record also contains a hearing notice that reset the March 11,

2003, hearing for the earlier date of February 13, 2003.               The

February 13, 2003, hearing notice is dated after the March 11,

2003, hearing notice.      Both hearing notices contain Maknojiya’s

attorney’s name and address, and the notices indicate that they

were sent through regular mail.        Postal receipts are not included

in the administrative record, nor is there a copy of an addressed

envelope.     Maknojiya asserts that neither he nor his attorney

received the hearing notice that reset the March 11, 2003, hearing

to February 13, 2003.     Maknojiya asserts that when he appeared for

the hearing on March 11, 2003, he was advised that a removal order

had been entered against him in absentia.              Although the IJ’s

                                       2
decision had been forwarded to his counsel, Maknijoya states that

his counsel was out of town and did not receive the IJ’s decision.

Both Maknijoya and his counsel submitted affidavits to the IJ with

the    motion      to    reopen    that       support        Maknijoya’s    assertions.

Maknijoya also argues, as he did before the BIA and the IJ, that he

intended to apply for cancellation of removal based upon his years

of residence in the United States and because his child, a United

States citizen, has been diagnosed with leukemia and would suffer

hardship if he is removed from the United States.

             The IJ’s decision denying Maknojiya’s motion to reopen is

premised upon a presumption that public officials, including Postal

Service employees, properly discharge their duties.                        The IJ relied

upon Matter of Grijalva, 21 I & N Dec. 27 (BIA 1995), for this

presumption. As the respondent concedes, the IJ erroneously relied

upon Grijalva for this presumption in Maknojiya’s case, because the

presumption of effective service set forth in Grijalva applies when

the notice is sent by certified mail through the United States

Postal Service          and    there   is   proof       of    attempted    delivery    and

notification of certified mail.                    Then, a strong presumption of

effective     service         arises   that       may   be    overcome     only   by   the

affirmative defense of nondelivery or improper delivery by the

Postal Service.         Grijalva, 21 I & N Dec. at 37-38.                It was an abuse

of    the   IJ’s   discretion      to   apply       the      Grijalva    presumption    to

Maknojiya’s case, where notice of the hearing was sent by regular



                                              3
mail.    See Ghounem v. Ashcroft, 378 F.3d 740, 744-45 (8th Cir.

2004)); Salta v. INS, 314 F.3d 1076, 1078-80 (9th Cir. 2002).

            Additionally, the IJ’s disregard of the affidavits of

Maknojiya and his counsel appears to be premised on Grijalva, which

required “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.”               Grijalva, 21 I & N Dec.

at 37-38.      While the IJ characterized the affidavits as self-

serving, he did not find an evidentiary flaw in the affidavits.                As

noted in Ghounem, in the case of failed mail delivery when regular

mail is used, the “only proof” is the alien’s statement that he or

she did not receive notice.        Ghounem, 378 F.3d at 744.          Here, both

Maknojiya and his counsel submitted affidavits indicating that they

did not receive the notice that reset the hearing date for an

earlier date.     Although Maknojiya did not initiate the removal

proceedings, as did the aliens in both Ghounem, 378 F.3d at 745 and

Salta,   314   F.3d   at   1079,   the       record   does   not   indicate   that

Maknojiya was attempting to avoid the immigration proceedings.

Finally, the IJ’s decision is premised entirely on Grijalva.

Although the IJ noted that Maknojiya had not alleged misconduct on

the part of counsel, Maknojiya did not assert that his counsel was

ineffective or that counsel did anything wrong.               Rather, Maknojiya



                                         4
and his counsel claimed that they did not receive the notice

resetting the March 11, 2003, hearing for the earlier hearing date.

          Based on the foregoing, the petition for review is

GRANTED and the case is REMANDED to the BIA.

          PETITION FOR REVIEW GRANTED; CASE REMANDED TO THE BIA FOR

FURTHER CONSIDERATION.




                                5
