Turner v. Holder , 455 F. App'x 76 ( 2012 )

10-2504-ag
Turner v. Holder
BIA
Straus, IJ
A038 959 380
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 13th day of January, two thousand twelve.
PRESENT:
JON O. NEWMAN,
RALPH K. WINTER,
ROSEMARY S. POOLER,
Circuit Judges.
_______________________________________
WILBERT KITSON ANDREW TURNER
Petitioner,
v. 10-2504-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Nancy E. Martin, Wethersfield, Conn.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Jennifer L. Lightbody, Senior Litiga-
tion Counsel; Edward E. Wiggers, Trial
Attorney, Office of Immigration Liti-
gation, United States Department of
Justice, Washington D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is GRANTED, and the case is REMANDED.
Wilbert Kitson Andrew Turner, a native and citizen of
Jamaica, seeks review of a May 28, 2010, decision of the BIA
affirming the January 8, 2010, decision of Immigration Judge
(“IJ”) Michael Straus denying his motion to reopen his removal
proceedings in order to challenge a removal (then called
deportation) order entered in absentia in 1991.1 In re
Wilbert Kitson Andrew Turner, No. A038 959 380 (B.I.A. May 28,
2010), aff’g No. A038 959 380 (Immig. Ct. Hartford Jan. 8,
2010). Turner alleges that if he had been present at the
deportation hearing, he would have been eligible to apply for
a waiver of deportation because he was a permanent resident of
the United States, his wife and six children are United States
citizens, and the offense for which he was ordered deported
involved less than 30 grams of marijuana.2 We assume the
1
Turner filed an initial motion to reopen in 1999, which was denied.
His administrative appeal was dismissed as untimely. No judicial review
was sought. The IJ ruled in the pending case that, because Turner was in
deportation proceedings, his current motion to reopen was not number-
barred.
2
Turner’s brief cites to 8 U.S.C. § 1251(f)(2)(A)(B), which we
cannot locate. It is likely that he means to cite 8 U.S.C.
§ 1251(a)(2)(B)(i) (1988), applicable at the time of his in absentia
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parties’ familiarity with the underlying facts and procedural
history in this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006). An abuse of discretion may be found where the
agency “has misunderstood or misapplied the governing law.”
Abu Hasirah v. Dep't of Homeland Sec., 478 F.3d 474, 476-77
(2d Cir. 2007) (per curiam).
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008). An order of removal entered in absentia may be
rescinded upon a motion to reopen filed at any time if the
alien demonstrates that he did not receive notice as required.
8 U.S.C. § 1229a(b)(5)(C). In the pending case, Turner sought
reopening.
The agency did not abuse its discretion in determining
that Turner received proper service of his order to show cause
(“OSC”) by personal service. See 8 C.F.R. § 242.1(c)(1990)
(providing that service of an order to show cause could “be
deportation hearing, which contains the exemption from deportation for
“a single offense involving possession for one’s own use of 30 grams or
less of marijuana.” That section is now codified at 8 U.S.C.
§ 1227(a)((2)(B)(i) (2006).
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accomplished either by personal service or by routine
service.”); C.F.R §§ 103.5a(a)(2)(i), (iv) (1990) (providing
that personal service could be effectuated by “[d]elivery of
a copy personally”). Substantial evidence supports the
agency’s finding that Turner received the OSC by hand, as the
OSC indicates it was served by hand, and a sworn affidavit
from a local sheriff with custody of Turner stated that Turner
was turned over to immigration custody on the date the OSC was
served. See 8 U.S.C. § 1252(b)(4)(B) (providing that
“administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.”).
However, the agency abused its discretion by committing
an error of law in considering Turner’s claim that he did not
receive notice of his deportation hearing. The OSC did not
specify the place or date for Turner’s deportation hearing.
Once the place and date were initially determined, no notice
of the hearing was sent to 5001 Kindly Court, Apt. D, Virginia
Beach, Virginia, which Turner claims was his address at the
time his initial hearing notices were sent. This address was
set forth in the OSC. The OSC also indicates that Turner
requested a hearing in Connecticut. Two hearing notices for
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a rescheduled hearing were sent by regular mail to “638 Howe
Avenue Shelton CT 06484.” This address was listed on Turner’s
“Record of Deportable Alien.” These notices were returned as
undeliverable. Two subsequent hearing notices were sent in
late 1990 to “80 Spruce Street #3E Stamford CT 06902.” This
address was listed on a 1985 Connecticut state court document.
The second of these notices specified the January 3, 1991,
date of the hearing at which the in absentia order was issued.
This notice was not returned by postal authorities. The
Government asserts that this was the address of his then girl
friend’s mother.
The IJ, as affirmed by the BIA, concluded that these
attempts to mail notice to Turner satisfied the requirement
that reasonable notice under all of the circumstances be
given. See INA § 242(b)(1)(1990), 8 U.S.C. 1252(b)(1)(1990)
(applicable at the time Turner’s hearing notices were mailed,
and providing that a person subject to deportation proceedings
was to “be given notice, reasonable under all the
circumstances, of the nature of the charges against him and of
the time and place at which the proceedings will be held”).
In reaching this conclusion, the agency abused its
discretion by assessing only whether notice was properly
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mailed, rather than actually received. We have held that
although the question of whether an IJ may enter an in
absentia removal order turns on whether written notice was
properly mailed, “[w]hen an alien seeks to rescind the removal
order [] claiming that he did not receive notice of the
hearing, . . . the central issue no longer is whether the
notice was properly mailed . . ., but rather whether the alien
actually received the notice.” Alrefae v. Chertoff, 471 F.3d
353, 359 (2d Cir. 2006)(emphasis in the original) (internal
citations omitted); Lopes v. Gonzales, 468 F.3d 81, 84 (2d
Cir. 2006) (per curiam) (“Lopes I”). When notice is sent by
regular mail, the agency may apply a “slight” rebuttable
presumption of receipt if “the record establishes that the
notice was accurately addressed and mailed in accordance with
normal office procedures.” Lopes I, 468 F.3d at 85-86(interpreting the requirement under 8 U.S.C. § 1229(a)(1) that
a notice to appear “shall be given in person to the alien (or,
if personal service is not practicable, through service by
mail to the alien or to the alien’s counsel of record)”).
This presumption “does no more than to shift a tie-breaking
burden of proof to the alien claiming non-receipt.” Lopes v.
Mukasey, 517 F.3d 156, 160 (2d Cir. 2008) (“Lopes II”). In
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turn, the agency has an obligation to “consider all relevant
evidence, including circumstantial evidence, offered to rebut
th[e] presumption,” Alrefae, 471 F.3d at 359-60, including
whether the alien claiming non-receipt had an interest in
attending his hearing, Lopes II, 517 F.3d at 160.
Because the two notices sent to the “638 Howe Ave”
address were returned as undeliverable the record establishes
that Turner did not receive them, and the agency therefore
erred in relying on them. Even if the record supported its
determination that notice was properly mailed, it refutes his
receipt of them. See Alrefae, 471 F.3d at 359; Lopes I, 468
F.3d at 84.
The agency also erred by analyzing whether the notices
sent to the “80 Spruce St.” address were reasonably sent,
rather than whether they were received. See Alrefae, 471 F.3d
at 359; Lopes I, 468 F.3d at 84. Turner stated in a 2008
affidavit that he never lived at that address and that his
daughter’s mother lived there only a short time. The record
does not indicate that anyone connected to Turner resided at
the “80 Spruce St” address in 1990 when the hearing notices
were mailed or indicate any other justification for the INS to
believe that the address was the then current address at which
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Turner resided or the last address provided by Turner. Cf.
Matter of Munoz-Santos, 20 I. & N. Dec. at 206-07 (relying on
the fact that notice was sent to the last address provided to
support finding that notice was properly served).
Because the agency considered the reasonableness of the
mailing of hearing notices, rather than the fact of their
receipt, the denial of reopening must be remanded for further
consideration. Upon remand, the agency will have to consider
whatever force can reasonably be given to the presumption of
receipt arising from mailing to the 80 Spruce St. address (the
only address from which a mailing of notices was not returned)
and consider the direct and circumstantial evidence of non-
receipt provided by Turner.
For the foregoing reasons, the petition for review is
GRANTED and the case is REMANDED for further proceedings
consistent with this order. As we have completed our review,
any pending motion for a stay of removal in this petition is
DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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