Elena Smykiene v. Eric Holder, Jr.
707 F.3d 785
7th Cir.2013Background
- Smykiene, a Lithuanian national, entered the U.S. on a visitor visa in 1995; visa expired, but she remained in the U.S.
- In April 1996, Border Patrol arrested Smykiene; she was given an order to show cause and asked for address; she supplied an address in Lisle, Illinois.
- A notice to appear was mailed July 22, 1996 to that address; it was returned as Attempted — Not Known with no follow-up.
- On December 11, 1996, Smykiene did not appear; an immigration judge ordered her deported (removal in present terms) in absentia.
- In 2010, immigration officers informed Smykiene of the 14-year-old removal order; a motion to reopen was filed on the ground that she never received notice.
- The IJ denied the motion to reopen, conflating notice and receipt and finding no evasion; the Board affirmed, triggering review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether nonreceipt of hearing notice requires reopening of in absentia removal | Smykiene argues she did not receive notice; affidavit supports nonreceipt. | Government asserts proper notice was sent; presumption of effective service; evasion must be shown. | Yes, she is entitled to reopen; Board's reliance on receipt was improper. |
| Whether an affidavit of nonreceipt suffices to trigger an evidentiary reopening hearing | Affidavit evidence establishes nonreceipt; warrants evidentiary proceeding. | Presumption of delivery defeats nonreceipt without hearing. | Affidavit of nonreceipt constitutes evidence triggering need for evidentiary hearing. |
| Whether the Board/IJ misapplied Sabir v. Gonzales and the Grijalva framework | Board mischaracterized Sabir and misstated Grijalva regarding notice vs receipt. | Board relied on notion of notice (delivery) rather than receipt; standard misapplied. | Board erred; proper framework requires evaluating nonreceipt and potential evasion. |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (U.S. 2001) (Due Process extends to aliens within the United States)
- Sabir v. Gonzales, 421 F.3d 456 (7th Cir. 2005) (affidavit of nonreceipt supports reopening when no receipt is shown)
- Joshi v. Ashcroft, 389 F.3d 732 (7th Cir. 2004) (nonreceipt evidence can warrant reopening absent proper notice)
- In re Grijalva, 21 I&N Dec. 27 (BIA 1995) (notice by certified mail at last known address provides statutory notice but not receipt)
- Dakaj v. Holder, 580 F.3d 479 (7th Cir. 2009) (affidavits of nonreceipt require hearing to determine evasion)