Alrefae v. ChertoffAlrefae v. Chertoff
Mary K. Roach, Assistant United States Attorney (Kathleen M. Mehltretter, Acting United States Attorney for the Western District of New York, on the brief), Buffalo, NY, for respondents.
Abdoh Ahmed Alrefae, a citizen of Yemen, petitions for review of a June 2, 2004 order of the Board of Immigration Appeals (“BIA“) affirming without opinion a July 15, 2003 decision of Immigratiоn Judge (“IJ“) Philip J. Montante, Jr., denying Alrefae‘s motion to rescind an in absentia order of removal and to reopen removal proceedings on the basis of new evidence. In re Abdoh Ahmed Alrefae, No. Alh-bkb-vxw (B.I.A. June 2, 2004), aff‘g No. Aom-whv-nkz (Immig. Ct. Buffalo July 15, 2003). In 1997, Alrefae became a lawful permanent resident on a conditional basis as a result of his marriage to a United States citizen. He was ordered removed in absentia after he and his wife failed to file a timely joint petition to remove the conditional basis of his permanent resident status and he subsequently failed to appear for his removal hearing. We hold that the IJ erred in denying Alrefae‘s motion to rescind by failing to explain why Alrefae had not rebutted the presumptiоn that he received notice of his removal hearing and by improperly applying this presumption in evaluating Alrefae‘s claim that exceptional circumstances prevented him from appearing at his hearing. We also hold that the IJ erred in denying Alrefae‘s motion to reopen because he failed to explain why Alrefae was not prima facie eligible for removal of the conditional basis of his residency status, or why Alrefae‘s divorce, which did not become final until after his removal hearing, did not constitute new evidence. Because of these errors, we GRANT the petition for review, VACATE the BIA‘s order and REMAND this case to the BIA for further proceedings.
Aliens who attain permanent resident status by marriage to a citizen are initially granted that status on a conditional basis for two years.
Alrefae entered the United States on a nonimmigrant visa in July 1992 and remained here after the visa expired. On May 31, 1995, Alrefae married Tracy Reilly, a United States citizen, but apparently took no action to adjust his immigration status. On June 13, 1995, he received notice that removal proceedings had been initiated against him for overstaying his visa. In response, he conceded removability and requested voluntary departure, and on August 28, 1995, this request was granted. Alrefae thereafter filed a motion to reopen removal proceedings on the basis of his marriage and to adjust his status. This motion was granted on March 3, 1996, and on January 21, 1997, Alrefae attained permanent resident status on a conditional basis.
Alrefae‘s permanent resident status was terminated on February 25, 1999, after he and Reilly failed to file a joint petition to remove the conditions on that status. Alrefae apparently took no action between 1999 and 2002 in response to the termination. On January 10, 2003, however, Alrefae appeared voluntarily at the Buffalo, New York office of the Immigration and Naturalization Service (“INS“)2 to register pursuant to the National Security Entry-Exit Registration System (“NSEERS“) program.3 At the INS office, officials served Alrefae with a notice to appear for removal proceedings, but did not set a hearing date. On February 27, 2003, the INS mailed a notice of hearing date for March 28, 2003, to the address listed on the notice to appear. Alrefae failed to appear for his hearing and was ordered removed in absentia. A copy of the removal order was mailed to him that day.
On July 14, 2003, Alrefae filed a notarized letter with the Immigration Court stating that his home at “11 Tenbroek St., in Albany, New York” had been burglarized on February 25, 2003, and that soon thereafter he began receiving mail at the address of his friend Fuad Mansour.5 Alrefae also stated in the letter that Mansour had told him that he lost the mail, but would not sign an affidavit to this effect. Alrefae submitted along with the letter a police report concerning the burglary of his home.
The following day, July 15, 2003, the IJ denied Alrefae‘s motion. The IJ stated that the notice of hearing had not been returned to sender, giving rise to a presumption of delivery. Moreover, he observed that the notice had been sent to the address Alrefae had provided, and Alrefae had not subsequently filed a change of address form with the Immigration Court. For these reasons, the IJ concluded, Alrefae had failed to establish exceptional circumstances that would entitle him to rescission of the in absentia removal order. The IJ also stated that to prevail on a motion to reopen, Alrefae would have had to show prima facie eligibility for the underlying relief sought and present material, previously unavailable evidence. Without further explaining his reasoning, the IJ denied Alrefae‘s motion to reopen.
Alrefae appealed the IJ‘s decision, and on June 2, 2004, the BIA affirmed without opinion. Alrefae filed a motion under
Where, as here, the BIA affirms an IJ‘s decision without opinion, we review the decision of the IJ as the final agency determination. Tu Lin v. Gonzales, 446 F.3d 395, 398 (2d Cir.2006). We review the denial of a motion to reopen for abuse of discretion, which mаy be found if the decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Wei Guang Wang v. BIA, 437 F.3d 270, 273 (2d Cir.2006) (internal quotation marks omitted).
We note at the outset that we, unlike the parties, construe Alrefae‘s motion to rescind the in absentia removal order and to reopen proceedings on the basis of new evidence as comprising two distinct motions, which we review under different substantive standards. As we recently explained, although a motion to rescind is a type of motion to reopen, it is distinctive in that a “motion to reopen for purposes of rescinding an in absentia [removal] order . . . seeks to restart proceedings as if the previous proceedings never occurred.” Maghradze v. Gonzales, 462 F.3d 150, 152 n. 1 (2d Cir.2006). Because “[d]ifferent requirements pertain to each type of motion to reopen,” id., when an alien files a single motion that seeks both rescission of an in absentia removal order on an enumerated ground, see
In arguing that we lack jurisdiction to consider the merits of Alrefae‘s claim of prima facie eligibility for waiver of the joint filing requirement, the government conflates the requirements for a motion to rescind and a motion to reopen. The government is correct that we lack jurisdiction to consider the merits of Alrefae‘s claim of prima facie eligibility in the context of reviewing the IJ‘s denial of Alrefae‘s motion to rescind. Judicial review of in absentia remоval orders is limited to three specifically enumerated grounds, none of which concerns the merits of the relief the alien would seek if the in absentia removal order were rescinded. See
I. Alrefae‘s Motion to Rescind the In Absentia Order of Removal
Although Alrefae claimed that he had not received notice of his removal hearing because his friend lost his mail, the IJ found that Alrefae had failed to rebut the presumption of delivery that applies to notices of removal hearings. The IJ also concluded that because of this presumption, Alrefae had failed to establish that exceptional circumstances prevented him from appeаring for his removal hearing. Although, as we will explain, there is a presumption of receipt when notice of a removal hearing was properly sent, the IJ erred by failing to explain why he found that the evidence Alrefae submitted did not rebut this presumption. Moreover, the IJ erred by not analyzing Alrefae‘s claim of exceptional circumstances independently of his claim of nonreceipt.
With regard to claims of nonreceipt under
The BIA has stated that “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 certified mail, a strong presumption of effective service arises.” Matter of Grijalva, 21 I. & N. Dec. 27, 37 (B.I.A.1995). This presumption can be overcome “by the affirmative defense of nondelivery or improper delivery by the Postal Service,” but only if the alien presents “substantial and probative evidence such as documentary evidence frоm the Postal Service, third party affidavits, or other similar evidence demonstrating that there was improper delivery.” Id. Although we have recently held that this exacting standard is inapplicable where, as in Alrefae‘s case, notice of delivery was sent by regular rather than certified mail,9 the BIA may apply a less stringent, rebuttable presumption to notices of removal hearings if “the record establishes that the notice was accurately addressed and mailed in accordance with normal office procedures.” Lopes, 468 F.3d at 85. Although the BIA in Grijalva spoke in terms of a presumption of delivery, we have held that it is presumed not only that delivery to the alien‘s mailing аddress was effective, but also that the alien personally received the notice. See id. When an alien seeks to rescind an in absentia removal order claiming nonreceipt, the IJ must “consider all relevant evidence, including circumstantial evidence, offered to rebut th[e] presumption.” Id. at 86.
Although the IJ did not cite Grijalva, he invoked a presumption of delivery in rejecting Alrefae‘s claim of nonreceipt, explaining that “[s]aid notice of hearing was not returned to the court file[,] giving rise of [sic] a presumption of delivery.” We need not decide whether the IJ intended to invoke the Grijalva standard, which we have rejected for notices sent by regular mail, or instead a less stringent presumption, because in either case the IJ erred in rejecting Alrefae‘s claim of nonreceipt by failing to explain why Alrefae had not rebutted the presumption of receipt. Alrefae submitted a notarized letter attesting that he had not received notice because his friend Mansour lost his mail, and he offered a police report as support for his claim that he began receiving his mail at Mansour‘s home after his own home was burglarized. Although the IJ was correct that there was no evidence of misdelivery — indeed, Alrefae claimed that his mail was lost after it was delivered to his mailing address — Alrefae attempted to show that he had not personally received the notice. The IJ was by no means required to find Alrefae‘s assertions sufficient to rebut the presumption, but he should have addressed them in his decision. See Lopes, 468 F.3d at 85-86 (“Although an affidavit of non-receipt might be insufficient by itself to rebut the presumption, it does raise a factual issue that the BIA must resolve by taking account of all relevant evidence . . . .“).
We note several additional facts in the record that, on remand, the IJ might weigh in determining whether Alrefae rebutted the presumption of receipt. First, Alrefae appeared voluntarily to register for the NSEERS program, which may indicate a general willingness to comply with U.S. immigration laws and may suggest that he would not have knowingly failed to appear for his removal hearing. Cf. id. at 86 (noting that promptly notifying the INS of a change of address may indicate “at least arguably” that the alien “is not an absconder“). Second, Alrefae filed his motion to rescind and reopen within a few months of his scheduled removal hearing, and less than a month after receiving his divorce judgment, which also may provide some indication that he would have attended his removal proceeding had he received notice of it. Finally, the IJ might consider, on the other side of the scale, whether Alrefae‘s assertion that he began receiving his mail at his friend‘s address only after his own home was burglarized is contradicted by the fact that Alrefae gave his friend‘s address as his own mailing address when he appeared for NSEERS registration more than a month before the burglary. See supra note 5.
The IJ also concluded, without further explanation, that Alrefae had not made out a claim of exceptional circumstances because he failed to rebut the presumption of delivery. Because exceptional circumstances and nonreceipt are independent bases for rescission, it was error for the IJ not to assess Alrefae‘s exceptional circumstances and nonreceipt claims separately. We do not decide here whether a third party‘s misplacement of an alien‘s notice of hearing constitutes exceptional circumstances under BIA precedent, or, if it does, whether the evidence Alrefae submitted was sufficient to establish his claim. On remand, the IJ should assess Alrefae‘s claim of exceptional circumstances independently of his claim of nonreceipt and explain whether Alrefae is entitled to rescission on this ground on the basis of his claim that he did not receive notice because his friend lost his mail. In doing so, the IJ may consider the totality of the circumstances presented by Alrefae‘s case. See Kaweesa v. Gonzales, 450 F.3d 62, 68-69 (1st Cir.2006); Romero-Morales v. INS, 25 F.3d 125, 129-31 (2d Cir.1994). After considering all the relevant facts in the record, the IJ may decide that it is necessary to hold an evidentiary hearing to evaluate fully either or both of Alrefae‘s claims. If, however, the IJ determines that he can reach a decision on Alrefae‘s claims on the basis of the current record, he is not required to hold such a hearing.
To succeed on a motion to reopen removal proceedings before the IJ, an alien must satisfy two requirements. See
A. Alrefae‘s Prima Facie Eligibility
To be entitled to reopening, Alrefae was required to make a prima facie showing that if his removal proceedings were reopened, he would be eligible for a waiver of the joint filing requirement and thereby entitled to remove the conditions on his residency status. The IJ appears to have concluded that Alrefae failed to establish prima facie eligibility. Yet other than stаting that a prima facie showing is required and noting that a movant bears a “heavy burden” to establish eligibility for reopening, the IJ provided no explanation of his conclusion. Although the IJ‘s failure to provide any analysis of Alrefae‘s claim would itself require remand, we note that the government has not provided us with any argument as to why Alrefae is incorrect that he would have been able to apply for a waiver of the joint filing requirement if proceedings were reopened.12
Because Alrefae failed to submit either a joint petition or an application for a waiver within the ninety-day window, he had to establish that he would be entitled to rеquest a waiver outside this window in order to succeed on his motion to reopen. The BIA appears to allow late filing of waiver applications, at least in some circumstances. In Stowers, a decision Alrefae cited in his motion to reopen, the INS terminated an alien‘s conditional permanent resident status before the ninety-day joint filing window after learning that he and his wife were no longer residing together. 22 I. & N. Dec. at 606. The INS argued that it could not adjudicate the alien‘s application for a waiver of the joint filing requirement because the application was submitted outside the ninety-day window. Id. at 611. The BIA rejected the INS‘s position. It noted that “becаuse a waiver application is filed as an alternative to the joint petition, it is normally filed within the 90-day period preceding the end of the 2-year conditional residence period,” but held that “in certain situations it is appropriate to file a waiver application before or after the 90-day petitioning period, even where the [INS] affirmatively has terminated an alien‘s conditional resident status.” Id. The BIA explained that “[t]o conclude otherwise would prevent an alien whose marriage is terminated within 21 months of gaining conditional resident status from ever having the conditions of the status lifted, even where the marriage was entеred into in good faith or where extreme hardship would result.” Id. at 613. It also concluded that the IJ should have continued Stowers‘s removal proceedings until the INS could adjudicate the waiver application. Id. at 612. The BIA did not distinguish the “certain situations” in which late filing would be permissible from those in which it would not.
Moreover, unlike the regulation providing the requirements for joint filing, which requires filing within the ninety-day window,
B. Previously Unavailable Evidence
The IJ also concluded that Alrefae had failed to provide material, previously unavailable evidence in support of his motion to reopen. Alrefae‘s divorce did not become final until after the in absentia removal order was entered, and he included a copy of the divorce judgment with his motion to reopen. To determine whether a motion to reopen was supported by previously unavailable evidence, “we must inquire whether the evidence could have been presented at the hearing before the IJ.” Norani v. Gonzales, 451 F.3d 292, 294 (2d Cir.2006) (per curiam). Alrefae filed for divorce on December 14, 2002. He was ordered removed in absentia on March 28, 2003. He received a divorce judgement on May 20, 2003, and he filed his motion to reopen on June 18, 2003, attaching his divorce papers to the motion. Because Alrefae‘s divorce only became final two months after the scheduled date of his removal hearing, he could not have presented evidence of the divorce at this hearing in support of his application for a good-faith marriage waiver, which, as discussed above, appears to be available only to aliens whose divorces are final. The IJ did not explain why, under these circumstances, evidence of the divorce was not previously unavailable.14
CONCLUSION
Although in reviewing Alrefae‘s motion to rescind the in absentia removal order, the IJ properly recognized that a presumption of receipt applies to claims of nonreceipt of notices of removal hearings, he erred both by failing to explain adequately why Alrefae had failed to rebut this presumption and by conflating Alrefae‘s claims for rescission on the grounds of nonreceipt and exceptional circumstances. The IJ also erred by failing to explain adequately his reasons for denying Alrefae‘s motion to reopen on the basis of new evidence. The petition for review is therefore GRANTED, the BIA‘s order is VACATED and the case is REMANDED for further proceedings consistent with this opinion.