Dalip Singh v. Gonzales

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DALIP SINGH, 

Petitioner, No. 04-72701

v.

 Agency No.

A77-424-559

ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 17, 2006—San Francisco, California

Filed November 28, 2006

Before: Alex Kozinski and Raymond C. Fisher,

Circuit Judges, and Frederic Block,* Senior District Judge.

Opinion by Judge Fisher

*The Honorable Frederic Block, Senior United States District Judge for

the Eastern District of New York, sitting by designation.

18809

18812 SINGH v. GONZALES

COUNSEL

Inna Lipkin, Law Office of Kuldip S. Dhariwal, Redwood

City, California, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Jeffrey J. Bern-

stein, Senior Litigation Counsel, Benedetto Giliberti, Attor-

ney, and Joan Smiley (argued), Attorney, United States

Department of Justice, Washington, D.C., for the respondent.

OPINION

FISHER, Circuit Judge:

The question posed by this case is whether an alien who in

sworn affidavits claims that he never received notice of the

BIA’s adverse decision is entitled to reopening and reissuance

of that decision so that he may timely appeal it to this court.

More specifically, when the BIA uses regular mail to meet its

regulatory obligation to serve its decisions on aliens, does the

BIA’s factual finding that its decision was properly mailed to

the alien’s address of record preclude the alien’s claim that he

did not actually receive the decision?

I.

Petitioner Dalip Singh is a 42-year-old native and citizen of

India. On August 10, 1998, he entered the United States on a

B-2 visitor’s visa, which authorized him to remain in the

United States until February 9, 1999. Some time before his

visa expired and while still lawfully in the United States,

Singh petitioned the immigration authorities for asylum,

claiming persecution on account of religion (Sikh) and mem-

bership in a disfavored group (the Akali Dal Mann Party).

Subsequently, Singh appeared at two immigration hearings,

one on November 29, 2001 and the second on May 23, 2002.

SINGH v. GONZALES 18813

At the conclusion of the May 23 hearing, the Immigration

Judge (IJ) denied Singh all relief, and Singh thereafter timely

appealed the IJ’s adverse decision to the Board of Immigra-

tion Appeals (BIA). On October 7, 2003, the BIA issued its

decision denying Singh’s appeal in an order affirming the IJ

without an opinion. Singh and his attorney of record, Khuldip

Dhariwal, swear they did not receive notice of the decision.1

The BIA contends, however, that it sent the decision by regu-

lar mail to Singh’s counsel, whose correct address appears on

the decision’s transmittal cover sheet; the BIA acknowledges

that the decision was not sent to Singh himself.

Singh contends that neither he nor his attorney learned of

the BIA’s October 2003 decision until February 2004, well

after the time for Singh to file an appeal with this court had

lapsed. See 8 U.S.C. § 1252(b)(1) (30-day time limit for filing

petitions for judicial review); Caruncho v. INS, 68 F.3d 356,

359 (9th Cir. 1995) (statutory time limit is mandatory and

jurisdictional); see also Stone v. INS, 514 U.S. 386, 394-95

(1995) (statutory time limit is not tolled by the filing of a

motion to reopen or reconsider). On February 23, Dhariwal

received a “bag and baggage order” from the Immigration and

Naturalization Service,2 directing Singh to appear for removal

on March 2, 2004.3 After Dhariwal phoned the BIA and was

informed about its October 2003 denial of Singh’s appeal, he

promptly filed a motion to reopen with the BIA, requesting

1

The factual allegations supporting Singh’s and Dhariwal’s claims that

they did not receive notice of the October 2003 decision are taken from

the motion to reopen and affidavits submitted to the BIA. Except as other-

wise noted, the government does not contest these assertions.

2

The INS has been abolished and its functions transferred to the Depart-

ment of Homeland Security. See Homeland Security Act of 2002, Pub. L.

No. 107-296, 116 Stat. 2135, 2142 (2002), 6 U.S.C. §§ 101-557.

3

The bag and baggage order was dated February 11, 2004. Such an

order issues once the government determines that there is no further

administrative relief available to an alien who is subject to an order of

removal, and instructs the alien to appear at a specified location and time

for removal.

18814 SINGH v. GONZALES

that it reissue its decision so Singh could timely appeal to this

court. Both Dhariwal and Singh attached affidavits to the

motion to reopen, swearing under penalty of perjury that nei-

ther had received the Board’s earlier decision. The BIA

denied Singh’s motion on April 28, 2004, stating, in full:

“The respondent has filed a motion to reissue the Board’s

October 7, 2003, decision. The motion is denied, as the record

reflects that the respondent’s decision was correctly mailed to

the respondent’s attorney of record.” Singh now petitions for

review of the Board’s denial of his motion to reopen.

II.

We must decide whether the BIA abused its discretion in

refusing to reopen and reissue its adverse October 2003 deci-

sion, given Singh’s claim that he never received notice of that

decision and therefore could not timely appeal it to this court

on its merits.4 To succeed on his claim that the BIA abused

its discretion, Singh must establish that the BIA failed to com-

ply with the terms of its own regulations. See Iturribarria v.

INS, 321 F.3d 889, 895 (9th Cir. 2003). He cannot do so, and

thus his petition for review must be denied.

[1] The regulations governing the BIA’s obligation to give

notice of its decisions provides that “[t]he decision of the

Board . . . shall be served upon the alien or party affected

. . . .” 8 C.F.R. § 1003.1(f).5 Service, in turn, is defined as

“physically presenting or mailing a document to the appropri-

ate party or parties.” 8 C.F.R. § 1003.13 (emphasis added).

4

We review for abuse of discretion the BIA’s denial of a motion to

reopen. Salta v. INS, 314 F.3d 1076, 1078 (9th Cir. 2002). The BIA abuses

its discretion if it acts “arbitrarily, irrationally or contrary to law.” Movsi-

sian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (internal quotation

marks omitted).

5

The government argued in its briefing and at oral argument before us

that 8 U.S.C. § 1229(a)(1) was applicable. But that section clearly covers

only “notice[s] to appear,” not notice of the BIA’s decision. This differ-

ence is critical as we explain later.

SINGH v. GONZALES 18815

[2] When the Board relies on service by mail, it must estab-

lish that the document placed in the mail was correctly

addressed to the alien’s (or his counsel’s) address of record.

See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.

1996). In Martinez-Serrano, the BIA had mailed its decision

denying an alien’s motion to reopen to an old address, even

though it had been properly notified of counsel’s new address.

The BIA learned of its mistake one month later and mailed

the decision to the correct address. The alien petitioned this

court for review of the Board’s denial more than 90 days after

the date of the incorrectly addressed mailing, but within 90

days of the BIA’s subsequent, corrected mailing.6 The govern-

ment argued that we were without jurisdiction to review the

BIA’s denial of the motion to reopen because the alien’s peti-

tion for review was filed more than 90 days after the BIA first

mailed its decision. Rejecting the government’s contention,

we relied on Zaluski v. INS, 37 F.3d 72, 73 (2d Cir. 1994) (per

curiam), which held that “the BIA’s regulations . . . specify

that decisions be mailed to the appropriate party” and “the

decision was not mailed to the appropriate party until it was

directed to the address duly recorded with the BIA.”

Martinez-Serrano, 94 F.3d at 1258-59. Reasoning that “the

petitioner should not be penalized for the BIA’s failure to

comply with the terms of the federal regulations,” we con-

cluded that the “[t]ime for filing a review petition begins to

run when the BIA complies with the terms of federal regula-

tions by mailing its decision to petitioner’s [or his counsel’s]

address of record.” Id. at 1259 (quoting Zaluski, 37 F.3d at

73) (emphasis added) (second alteration in original).

Under the clear terms of the regulations then, as interpreted

by this court, the BIA does not effectuate service if it fails to

mail its decision to the party’s correct address of record. This

is the framework under which we analyze Singh’s claims that

he is entitled to relief if he can show he did not in fact receive

6

At the time Martinez-Serrano was filed, aliens had 90 (rather than 30)

days to petition for review of the BIA’s decision. See id. at 1258.

18816 SINGH v. GONZALES

notice of the Board’s decision. In order to prevail on his peti-

tion for review, Singh must establish that the BIA failed to

fulfill its regulatory or legal obligations with respect to its

October 2003 decision.

III.

A.

[3] Singh’s allegation of nonreceipt suggests that he might

be claiming the decision was never mailed at all, much less

to the correct address. If true, that would violate 8 C.F.R.

§ 1003.1(f) on its face. The BIA found, however, that the

decision “was correctly mailed” to Singh’s attorney, and we

review this factual finding for substantial evidence. See

Hamoui v. Ashcroft, 389 F.3d 821, 826 (9th Cir. 2004). We

“must uphold the BIA’s finding unless the evidence compels

a contrary result.” Monjaraz-Munoz v. INS, 327 F.3d 892, 895

(9th Cir. 2003). Singh has offered only his affidavits suggest-

ing that the decision was not mailed by the BIA, and the BIA

points to the properly addressed transmittal sheet of its Octo-

ber 2003 decision as evidence that it was. See Haroutunian v.

INS, 87 F.3d 374, 375 (9th Cir. 1996) (“The cover letter was

dated June 17, 1994, and we presume that the final order of

deportation was mailed on that date.”). Given this record,

sparse as it is, we are unable to conclude on the basis of

Singh’s affidavits alone that the BIA’s finding was not sup-

ported by substantial evidence.

B.

[4] Singh argues that his allegation of nonreceipt, supported

by his affidavits and course of conduct, should equitably toll

the filing deadline for petitioning this court. Had the BIA

failed to comply with its regulations, this argument would

have had merit. But Singh equates the BIA’s obligation to

“serve” with actual delivery. Singh’s position is a reasonable

one because service is generally understood to mean delivery.

SINGH v. GONZALES 18817

See Black’s Law Dictionary 1399 (8th ed. 2004) (defining

serve as “1. To make legal delivery of (a notice or process)

. . . ; 2. To present (a person) with a notice or process as

required by law”). Indeed, the BIA’s own definition of service

requires the BIA either to “physically present[ ]” its decision

(ensuring the alien actually receives it) or to mail its decision.

8 C.F.R. § 1003.13. These two methods of service are of

equal significance only if one presumes receipt from mailing.

Significantly, prior to the 1996 amendments to the United

States Code, the BIA was required to mail its decision using

certified mail, which provided documentation of actual deliv-

ery. See 8 U.S.C. §§ 1252b(a)(1), (f)(1) (1995); see also In re

Grijalva, 21 I. & N. Dec. 27, 32 (BIA 1995). Thus, the BIA’s

mailing of its decision by certified mail to an alien was

roughly equivalent to physically presenting the decision to the

alien. Congress, however, amended the statute in 1996 to

allow the BIA to send its decision by regular mail. See 8

U.S.C. § 1229(a)(1) (1996). And because the BIA retained its

regulations authorizing service by “mailing,” it appears that

regular mail suffices even though it does not generate any

confirmation by the U.S. Postal Service that the mail actually

got through. Consequently, unless there is some regulatory or

other legal requirement that the BIA affirmatively demon-

strate that Singh actually received the Board’s October 2003

decision, his sworn allegations of nonreceipt are legally insuf-

ficient. Singh has not called our attention to any such require-

ment and we have not found any.

Our decision in Salta v. INS, 314 F.3d 1076 (9th Cir. 2002),

adopted a rebuttable presumption of receipt when an alien

cannot show that the Board failed to mail its decision to the

correct address. Under Salta, the alien thus has the opportu-

nity to demonstrate factually that he did not receive the deci-

sion, thereby warranting the Board’s reopening the matter.

Salta, however, arose in a different context, addressing what

an alien must allege to be entitled to rescission of an in absen-

tia order of removal under 8 U.S.C. § 1229a(b)(5). See id. at

1077-78. The INS had mailed notice of the alien’s removal

18818 SINGH v. GONZALES

hearing using regular mail rather than certified mail as had

been previously required. Salta claimed she never received

notice of the hearing and was entitled to have the in absentia

removal order rescinded. The IJ disagreed, relying on the

strong presumption that public officers, including the postal

workers, properly discharge their duties. We noted that the

IJ’s presumption of effective service by mail derived from In

re Grijalva, in which the BIA had stated:

We find 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 certi-

fied mail, a strong presumption of effective service

arises. There is a presumption that public officers,

including Postal Service employees, properly dis-

charge 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. . . .

This presumption of effective service may be

overcome by the affirmative defense of nondelivery

or improper delivery by the Postal Service. How-

ever, 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 there was improper

delivery.

21 I. & N. at 37 (emphasis added) (internal citations omitted).

Because the INS had not used certified mail, however, we

concluded that the IJ relied on the wrong standard in denying

Salta’s defense of nonreceipt. Rather, “[a]lthough 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

SINGH v. GONZALES 18819

required to rebut such a presumption.” Salta, 314 F.3d at

1079. We remanded to the IJ to determine if certain condi-

tions were satisfied (including the alien’s submission of an

affidavit attesting to nonreceipt) that would entitle Salta to an

evidentiary hearing on whether notice was in fact received.

See id. at 1079-80.

[5] But Salta is inapposite. Section 1229a(b)(5) requires the

immigration judge to enter an in absentia removal order when

an alien fails to appear for a hearing. The order may be

rescinded if the alien demonstrates “that she did not receive

notice of the removal hearing.” Id. at 1078 (citing 8 U.S.C.

§ 1229a(b)(5)(C)). There is no comparable statutory provision

with respect to notice of BIA decisions that would require

excusing an alien’s delinquency in failing to timely file a peti-

tion for review because of his asserted nonreceipt of notice.

As we have already explained, to satisfy its regulatory obliga-

tion to accomplish service of its decision, the BIA is required

only to mail the decision to the alien’s address of record.7 Cf.

Radkov v. Ashcroft, 375 F.3d 96, 99 (1st Cir. 2004) (“The

time for filing a review petition begins to run when the BIA

complies with the terms of the applicable regulations by mail-

ing its decision to a petitioner’s address of record. Even if, as

the petitioners contend, the mailing in this case somehow

went awry without any fault on the part of the BIA, that cir-

cumstance alone would not excuse the failure to file a timeous

motion to reopen.” (internal citations omitted)); Nowak v.

INS, 94 F.3d 390, 392 (7th Cir. 1996) (“Neither [Zaluski v.

INS, 37 F.3d 72 (2d Cir. 1994), nor Ouedraogo v. INS, 864

F.2d 376 (5th Cir. 1989),] suggests that the time [in which to

file a petition for review] is extended when the agency sends

7

We have recognized differing standards in the removal hearing context

as compared to the BIA decision/petition for review context: “[T]here is

a significant difference between initiating deportation proceedings in

absentia and declining to hear an absent alien’s petition for review of pro-

ceedings in which he fully participated.” Antonio-Martinez v. INS, 317

F.3d 1089, 1092-93 (9th Cir. 2003).

18820 SINGH v. GONZALES

a notice that miscarries in the mails; indeed, both strongly

imply the contrary, for they rest on the premise that, because

a regulation requires the Board to send notice of its decisions,

the time for filing a review petition begins to run when the

BIA complies with the terms of federal regulations by mailing

its decision to petitioner’s address of record.” (internal quota-

tion marks and citation omitted)). Under these circumstances,

we do not believe it appropriate to adopt the rebuttable pre-

sumption regime set forth in Salta as a qualifier to the Board’s

service obligations set forth in 8 C.F.R. §§ 1003.1(f) and

1003.13.

In addition to compliance with the regulations that require

service, the BIA of course must not mislead an alien as to the

status of his appeal or the time limit for filing a petition for

review. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003)

(“[W]here there has been official misleading [by the court or

the BIA] as to the time within which to file a notice of appeal,

the late notice may be deemed to have been constructively

filed within the jurisdictional limits.” (citing Hernandez-

Rivera v. INS, 630 F.2d 1352, 1355 (9th Cir. 1980)). Singh

has not argued that the BIA misled him in any respect.

[6] We therefore must conclude that Singh has not pres-

ented any evidence to show that the Board abused its discre-

tion in declining to reopen his appeal and reissue its October

2003 decision. In so holding, we recognize that this places the

burden on the alien and his counsel to be vigilant in checking

the status of his case. According to the parties’ briefs, the BIA

has provided a hotline for aliens to call to determine whether

a decision has been issued. Indeed, Singh’s counsel confirmed

that a decision had been rendered by the BIA by calling this

hotline. Cf. Nowak, 94 F.3d at 391 (observing that “aliens

who distrust the Postal Service must check with the Board

every so often, just as litigants in district court must check

periodically with the clerk . . . .”).

Requiring such vigilance is not unique to this context. For

example, in a civil proceeding before the district court where

SINGH v. GONZALES 18821

the United States is a party, the parties have 60 days to file

a notice of appeal, and 30 days from this deadline to seek an

extension of time to file the notice. See Fed. R. App. P.

4(a)(1)(A). In Alaska Limestone Corp. v. Hodel, 799 F.2d

1409, 1411 (9th Cir. 1986) (per curiam), we refused to excuse

noncompliance with these time limits even if the district court

clerk failed to notify counsel of the entry of final judgment,

because “[a] party has an independent duty to keep informed

and mere failure of the clerk to notify the parties that judg-

ment has been entered does not . . . warrant an extension of

time.” Id. at 1412; see also Mennen Co. v. Gillette Co., 719

F.2d 568, 570 (2d Cir. 1983) (holding that, in the context of

Rule 77(d), “it is customarily the duty of trial counsel to mon-

itor the docket and to advise himself when the court enters an

order against which he wishes to protest.”).

IV.

[7] There may be situations where serious due process con-

cerns are implicated by the BIA’s refusal to reopen and reis-

sue, when it is undisputed that the alien neither received the

decision nor had the ability to verify independently that a

decision has been rendered. See Farhoud v. INS, 122 F.3d

794, 796 (9th Cir. 1997) (“The Due Process Clause protects

aliens in deportation proceedings and includes the right to a

full and fair hearing as well as notice of that hearing.”). Under

these circumstances, aliens may have to rely on the BIA’s sua

sponte authority to reopen a proceeding under 8 C.F.R.

§ 1003.2(a). See In re X-G-W-, 22 I. & N. Dec. 71, 73 (1998)

(en banc) (“[T]he Board retains limited discretionary powers

under [8 C.F.R. § 1003.2(a) of] the regulations to reopen or

reconsider cases sua sponte in unique situations where it

would serve the interest of justice.”), superseded on other

grounds by In re G-C-L-, 23 I. & N. Dec. 359 (2002). Of

course Singh’s case does not present such a situation and his

due process rights were not violated. See Farhoud, 122 F.3d

at 796 (rejecting an alien’s due process claim because notice

was mailed to the alien’s address of record pursuant to the

18822 SINGH v. GONZALES

applicable statute and “due process is satisfied if service is

conducted in a manner ‘reasonably calculated’ to ensure that

notice reaches the alien”) (quoting United States v. Estrada-

Trochez, 66 F.3d 733, 736 & 736 n.1 (5th Cir. 1995)). None-

theless, we cannot help noting that potential inequities and

needless expenditure of administrative and judicial resources

could be readily avoided if the BIA simply mailed its deci-

sions by certified mail, thereby providing clear proof of actual

mailing and delivery.

V.

The BIA was obliged to mail its decision to Singh’s correct

address of record. Singh’s affidavits alleging nonreceipt and

implying nonmailing are insufficient to overcome the BIA’s

factual finding — based on the transmittal sheet’s evidence of

mailing — that the decision was properly mailed. Therefore,

the BIA did not abuse its discretion in denying Singh’s

motion to reopen, and Singh has not established a violation of

due process.

PETITION FOR REVIEW DENIED.