The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0141p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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AMINATA IBRA BA,
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Petitioner,
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No. 08-3478
v.
,
>
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Respondent. -
ERIC HOLDER, Attorney General,
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N
On Petition for Review of a Final Order
of the Board of Immigration Appeals.
No. A97 615 587.
Submitted: March 3, 2009
Decided and Filed: April 8, 2009
Before: NORRIS, COOK, and GRIFFIN, Circuit Judges.
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COUNSEL
ON BRIEF: Brian C. DiFranco, DiFRANCO LAW OFFICE, Columbus, Ohio, for
Petitioner. Margaret Anne O’Donnell, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
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OPINION
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ALAN E. NORRIS, Circuit Judge. Petitioner Aminata Ibra Ba, a citizen of
Mauritania, applied for asylum, withholding of removal, and protection under the
Convention against Torture, alleging racial persecution. The merits of her claims are not
before us, however, because the immigration judge issued a removal order in absentia after
she failed to appear for her hearing. He subsequently denied her motion to reopen, a
decision affirmed by the Board of Immigration Appeals (“the Board”). This appeal poses
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the following question: What is required to establish that an alien received her statutorily
required written notice of removal proceedings when that notice was sent by regular mail?
I.
According to her asylum application, petitioner arrived in the United States on
September 14, 2003. She filed her application for asylum on February 3, 2004, listing her
address as 1 Mulberry Court, Apt. 3B, Cincinnati, Ohio. On July 12, 2004, she was served
with a Notice to Appear (“NTA”) as an alien subject to removal. The NTA, which petitioner
acknowledges receiving, used the address contained in her asylum application.
More than two years after the NTA issued, the Immigration Court sent a Notice of
Hearing, which was to occur on February 8, 2007, to the Mulberry Court address. Petitioner
claims not to have received this notice. As a result, she failed to attend the hearing and an
in absentia order of removal was entered against her.
According to an affidavit sworn to by petitioner, she was “not even aware that I was
removed in absentia until yesterday, October 11, 2007, when I went to the Cincinnati
Immigration Office to inquire about the status of my application to renew my employment
authorization card which has been pending since April 30, 2007.” The affidavit also states
that petitioner had notified the United States Citizenship and Immigration Services
(“USCIS”) of her new address at 309 South Wayne Avenue, Cincinnati, Ohio, using Form
AR-11, “when I moved and when I first renewed my employment authorization.” This
assertion is borne out by a letter denying work authorization sent on October 17, 2007 to the
Wayne Avenue address. Counsel for petitioner finally submitted a change of address form
to the Immigration Court on December 10, 2007.
On November 1, 2007, the immigration judge denied a motion to reopen. He noted
that “[i]f non-receipt is alleged and the Court has properly addressed and sent the document,
the burden is placed on the alien to prove that he did not receive notice of the hearing.”
Memorandum and Order at 2 (citing Sleiman v. Gonzales, 241 F. App’x, 321, 324 (6th Cir.
2007) (emphasis original)). In the immigration judge’s view, petitioner failed to meet her
burden. First, the change of address notice to USCIS did not occur until after the issuance
of the removal order. Second, the immigration judge dismissed her argument that boilerplate
No. 08-3478 Ba v. Holder Page 3
language contained in the NTA led her to believe that she would automatically receive a
Form EOIR-33 to change her address with the Immigration Court. In his view, her reading
of the NTA was misguided because it “does not indicate that one will automatically receive
a copy of the form, only that one will be provided if needed.” Id.
The Board affirmed this decision in a brief order, which acknowledged that “an alien
has a weaker burden of establishing failure to receive a Notice of Hearing sent by regular
mail than if it was sent via certified mail,” but concluded that petitioner could not benefit
from that weaker burden because her affidavit failed to state that she was living at the
Mulberry Court address at the time the notice was mailed. Board Order, March 25, 2008 at
1. Unless she resided at that address, she had a duty to inform the Immigration Court of any
change of address and nothing in the record indicated that she did so.
II.
Notice requirements during removal proceedings and the obligations that they trigger
have been recently summarized in these terms:
An alien must be provided written notice of a removal proceeding in person
or, if personal service is not practicable, through service by mail to the alien
or the alien’s counsel of record. 8 U.S.C. § 1229(a)(1). The notice must
contain certain required elements, including the nature of the proceedings,
the conduct alleged to be in violation of the law, and the date, time, and
location of the proceedings. Id. § 1229(a)(1)(A)-(G). If an alien is provided
proper written notice of a removal proceeding and still fails to attend, the IJ
must enter an in absentia order of removal if the agency establishes “by
clear, unequivocal, and convincing evidence that the written notice was so
provided and that the alien is removable [as further defined].” Id.
§ 1229a(b)(5)(A). An in absentia order so entered may be rescinded only if
the alien moves to reopen the case and demonstrates th[at] he or she either
did not receive notice of the removal hearing or failed to appear because of
exceptional circumstances. Id. § 1229a(b)(5)(C). . . . Review of an in
absentia order is confined to (i) the validity of the notice provided to the
alien; (ii) the reasons for the alien’s not attending the proceeding, and (iii)
whether the alien is removable. Id. § 1229a(b)(5)(D).
Ablahad v. Gonzales, 217 F. App’x, 470, 473-74 (6th Cir. 2007). The Board has recently
conceded that, consistent with a number of circuit court opinions, the trend is toward a
diminished presumption when regular mail is used:
No. 08-3478 Ba v. Holder Page 4
We find that it is proper to apply some presumption of receipt to a Notice to
Appear or Notice of Hearing sent by regular mail when the notice was
properly addressed and mailed according to normal office procedures. This
presumption, however, is weaker than that accorded to notice sent by
certified mail.
Matter of M-R-A-, 24 I. & N. Dec. 665, 673 (BIA 2008) (citing Silva-Carvalho Lopes v.
Mukasey, 517 F.3d 156 (2d Cir. 2008); Santana Gonzalez v. Att’y Gen. of the United States,
506 F.3d 274 (3d Cir. 2007); Sembiring v. Gonzalez, 499 F.3d 981, 988-89 (9th Cir. 2007)).
Echoing language from the Ninth Circuit’s Sembiring decision, Matter of M-R-A- observes,
“[a]n inflexible and rigid application of the presumption of delivery is not appropriate when
regular mail is the method of service of a Notice to Appear or Notice of Hearing.” Matter
of M-R-A-, 24 I. & n. Dec. at 673.
Petitioner contends that the immigration judge gave insufficient weight to her
affidavit. She directs us to Sembiring:
The 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. In the typical regular mail
case, the only proof of non-receipt beyond the respondent’s statement that
he or she did not receive notice, will be circumstantial evidence. In a few
cases, non-receipt may be shown by a single piece of evidence, such as when
evidence shows that an incorrect address was used. Sometimes, however,
several pieces of circumstantial evidence may be appropriate.
400 F.3d at 988 (punctuation and citations omitted). The Ninth Circuit also noted that the
adverse consequences which accompany removal favor petitioner: “[t]he liberty interests
involved in removal proceedings are of the highest order. Removal visits a great hardship
on the individual and deprives him [or her] of the right to stay and live and work in this land
of freedom.” Id. at 990 (quoting Lanza v. Ashcroft, 389 F.3d 917, 927 (9th Cir. 2004)).
In Matter of C-R-C-, 24 I. & N. Dec. 680 (BIA 2008), the Board remanded a case
in which the immigration judge had entered an in absentia order because the judge failed to
give adequate weight to the fact that petitioner sought a benefit (asylum), had every reason
to appear, and submitted an affidavit stating that he always resided at the same address and
had received a fingerprint notice there. While C-R-C- has much in common with petitioner’s
situation, there is one difference that must be acknowledged: her affidavit fails to assert that
she was living at the Mulberry Court address at the time when the notice of her February 8th
No. 08-3478 Ba v. Holder Page 5
court hearing was mailed to her. At the very least, petitioner bears the burden, even when
service is made by regular mail, to demonstrate that the address to which the notice was sent
was current. A blanket statement, such as that made by petitioner that “I never received any
notice of the hearing,” is not enough.
Petitioner contends that she not only filed an affidavit, she indicated her desire to
pursue her asylum claim by keeping the USCIS informed of her address when applying for
work authorization. We note, however, as did the immigration judge, that petitioner filed her
AR-11 form two months after she failed to appear for her court hearing. Be that as it may,
while her attempts to keep the government apprised of her whereabouts were ineffective,
they at least demonstrate her interest in pressing forward with her asylum claim, and the
other factors recounted in Sembiring and Matter of M-R-A- also weigh in her favor.
Applying these considerations to the present case, we conclude that petitioner should
have an opportunity to establish that she resided at the Mulberry Court address when the
Notice of Hearing was mailed to her by the Immigration Court. If she can do so, then she has
rebutted any presumption of delivery by regular mail and the in absentia order of removal
should be vacated.
III.
The Board’s Order of March 25, 2008 dismissing petitioner’s motion to reopen is
reversed and the cause is remanded for further proceedings consistent with this opinion.