# Madrigal v. Holder > Court of Appeals for the Sixth Circuit · July 9, 2009 · 572 F.3d 239 URL: https://www.frixlaw.com/law-library/cases/9632626 ## Case - **Full name:** Maria Isabel MADRIGAL, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** July 9, 2009 - **Citations:** 572 F.3d 239; 2009 U.S. App. LEXIS 15118; 2009 WL 1953449 - **Precedential status:** Published - **Opinion:** Concurrence by Kethledge - **Judges:** Daughtrey, Rogers, Kethledge - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9632626 ## How later opinions describe it (automated extraction) - holding that this court had jurisdiction to review the BIA’s order automatically withdrawing the petitioner’s administrative appeal because the BIA’s withdrawal order gave final effect to the IJ’s order denying the petitioner’s request to reopen her case and to the IJ’s remova… - holding the Board erroneously USCA11 Case: 21-13382 Document: 54-1 Date Filed: 07/28/2023 Page: 8 of 20 8 Opinion of the Court 21-13382 deemed the appeal withdrawn and remanding to the Board “for further proceedings on the merits” - holding that the post-departure bar to appeals from the IJ to the BIA is inapplicable when the petitioner is forcibly removed during the pendency of his appeal - holding that “forc- ible removal” does not render an appeal automatically with- drawn under 8 C.F.R. § 1003.4 - holding that the departure rule does not apply to the involuntary removal of aliens ## Opinion text KETHLEDGE, Circuit Judge, concurring. The government forcibly removed Maria Madrigal from the United States, and now *246 claims she abandoned her appeal because she left the country. To state that argument should be to refute it; and the Court’s opinion, which I fully join, refutes it still more. I write further to observe that, in a case where the government urges adherence to the putative letter of its regulations to the outermost limits — and I think beyond — of fairness and common sense, the government itself seems not to have complied with some highly germane rules. By way of background, it undisputed that, in November 2004, the government served Madrigal, in person, with a Notice to Appear (NTA). But the NTA did not state the date and time of Madrigal’s removal hearing. That hearing was not scheduled until December 2006, at which time the government asserts it sent Madrigal a notice of the hearing date by regular mail. The record before this court contains no proof to support that assertion, and Madrigal claims she never got the notice. But that dispute is for another day; the regulatory point for now is that both the governing statute and the government’s own regulation say that service of a notice of removal hearing should not even be attempted by mail unless “personal service is not practicable!;.]” 8 U.S.C. § 1229 (a)(1); 8 C.F.R. § 1003.13 (emphasis added). Personal service obviously was practicable in November 2004, when Madrigal was personally served with the NTA; and it presumably remained so in December 2006, since Madrigal continued to reside at the same address and jointly owned a local restaurant with her U.S.-citizen husband, as DHS well knew. Perhaps the government nonetheless did make some showing of impracticability that would allow the government lawfully to serve such a critical document by regular mail; but if so, the record before this court lacks any trace of it. Relatedly, 8 U.S.C. § 1229 (c) provides that, in cases where service by mail is permitted, “[sjervice by mail [of a notice to appear] shall be sufficient if there is proof of attempted delivery to the last address provided by the alien[.]” (Emphasis added.) Even when the government shows personal service to be impracticable, therefore, service by mail is “sufficient” only if the government presents “proof’ that it was attempted at the alien’s last known address. As noted above, the record before this court, at least, contains no such proof. Congress presumably enacted these requirements not only to ensure that aliens actually receive notice of removal hearings, but also to prevent the very kind of dispute presented here. Whether the government complied with these requirements in Madrigal’s case — or indeed whether it served her at all — is, for now, beyond the evidentiary ken of this court. But I believe that, if the government claims service by mail in future cases before this court, it should include in the record proof that such service was not only factually, but lawfully made. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9632626. Public record. Not legal advice.