Nguhlefeh Njilefac v. Garland ( 2021 )

Case: 20-60520 Document: 00515794455 Page: 1 Date Filed: 03/24/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 24, 2021
No. 20-60520
Lyle W. Cayce
Clerk
Gerylouis Nguhlefeh Njilefac,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A201 428 259
Before King, Smith, and Haynes, Circuit Judges.
Haynes, Circuit Judge:
Gerylouis Nguhlefeh Njilefac seeks review of a decision of the Board
of Immigration Appeals (the “Board”) denying his motion for
reconsideration. Nguhlefeh Njilefac primarily argues that the Board did not
adequately consider two declarations indicating that his counsel did not
receive certain documents related to the proceedings. Because these
declarations do not sufficiently rebut the presumption that his counsel
received the documents the Board sent, we DENY the petition for review.
Case: 20-60520 Document: 00515794455 Page: 2 Date Filed: 03/24/2021
No. 20-60520
Nguhlefeh Njilefac, a native and citizen of Cameroon, sought asylum,
withholding of removal, and protection under the Convention Against
Torture in the United States on the grounds that he faced persecution due to
his affiliation with an opposition political party in his home country. After an
immigration judge denied his claims in an oral judgment, he appealed to the
Board. In connection with that appeal, the Board mailed his counsel a
briefing schedule, a transcript of the proceedings before the immigration
judge, and the immigration judge’s written decision. Those documents were
sent to the same address the Board had sent other materials, including a
receipt of Nguhlefeh Njilefac’s notice of appeal. But, according to Nguhlefeh
Njilefac, his counsel did not receive the documents and, therefore,
Nguhlefeh Njilefac’s counsel did not file a brief.
Approximately three months later, the Board upheld the immigration
judge’s decision, resolving Nguhlefeh Njilefac’s arguments as they were
raised in his notice of appeal. The Board’s decision was sent to the same
address the Board had sent all the other materials. Nguhlefeh Njilefac’s
counsel received the decision. Nguhlefeh Njilefac then sought
reconsideration on due process grounds, claiming that the earlier alleged
non-delivery left his counsel unable to adequately prepare arguments in the
appeal. In connection with that motion, Nguhlefeh Njilefac submitted two
declarations (one from his counsel and one from another attorney who shared
the same mailbox) stating that his counsel never received the relevant
documents. Those two declarations were signed “under penalty of
perjury”—but did not represent that the statements were “true and
correct.” The attorney who shared the mailbox explained: “The postman
delivers my mail into the same box as for [the law firm representing
Nguhlefeh Njilefac]. Staff from either of our offices may collect mail.
Neither I nor my staff, to my knowledge, have seen or received any mail
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pertaining to . . . Nguhlefeh Njilefac . . . .” 1 (emphasis added). Nguhlefeh
Njilefac’s attorney stated that she “searched [her] office thoroughly” and
did not receive the documents. However, nothing was said about whether
any staff persons in that office had been surveyed to see if they received the
documents. Neither attorney statement, then, conclusively negated the
possibility their staff received the documents in question.
The Board denied Nguhlefeh Njilefac’s motion, concluding that
Nguhlefeh Njilefac had not overcome the presumption that the documents
were delivered and stating that the submitted declarations were not sworn
affidavits; the documents had been sent to Nguhlefeh Njilefac’s counsel’s
address of record; the documents were not returned as undelivered; and
Nguhlefeh Njilefac’s counsel had apparently received other materials from
the Board sent to the same address. Nguhlefeh Njilefac timely petitioned our
court for review.
We have jurisdiction to review the Board’s decision denying
Nguhlefeh Njilefac’s motion for reconsideration under 8 U.S.C. § 1252(a).
See Kucana v. Holder, 558 U.S. 233, 253 (2010). We review the Board’s
decision on a motion for reconsideration or a motion to reopen 2 for abuse of
1
A statement that something is true “to [an individual’s] knowledge”
communicates that the individual lacks personal familiarity with the matter asserted. Such
a statement, without more, therefore has no evidentiary value. See, e.g., Henderson v. Dep’t
of Pub. Safety & Corr., 901 F.2d 1288, 1296 (5th Cir. 1990) (concluding that an affidavit
made “to the best of [declarant’s] knowledge and belief” was not based on personal
knowledge and was therefore “legally insufficient” to prove the truth of its contents);
Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 414 (1st Cir. 2000) (same); Garmon v.
Lumpkin Cnty., 878 F.2d 1406, 1408–09 (11th Cir. 1989) (same); see also Am.’s Best Inns,
Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992) (per curiam) (“[O]nly
[an] affidavit made on personal knowledge has any value (‘to the best of my knowledge and
belief’ is insufficient).”).
2
There is some debate between the parties whether Nguhlefeh Njilefac’s motion
is better characterized as a motion for reconsideration or as a motion to reopen. Although
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discretion. INS v. Doherty, 502 U.S. 314, 322–23 (1992); Nunez v. Sessions,
882 F.3d 499, 505 (5th Cir. 2018) (per curiam). We will not overturn the
Board’s decision to deny either type of motion unless the decision is
“capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach.” 3 Nunez, 882 F.3d at 505 (internal quotation
marks and citation omitted). We defer to the Board’s factual findings if they
are supported by substantial evidence and will not overturn a factual
determination “unless the evidence compels a contrary conclusion.” Id.
(internal quotation marks and citation omitted). Moreover, even if the Board
erred at some point in its analysis, we can still uphold its ultimate decision if
“there is no realistic possibility” that the Board’s conclusion would have
been different absent the error. Enriquez-Gutierrez v. Holder, 612 F.3d 400,
407 (5th Cir. 2010) (internal quotation marks and citation omitted).
Against this backdrop, Nguhlefeh Njilefac primarily contends that the
Board incorrectly determined that his counsel had received the briefing
schedule, transcript, and written decision. He takes particular aim at the
Board’s treatment of the declarations he submitted, arguing that the Board
erroneously disregarded them because they were not sworn affidavits.
We generally presume that mailed documents reach their intended
recipient. Nunez, 882 F.3d at 506; see also In re Eagle Bus Mfg., Inc., 62 F.3d
730, 735 (5th Cir. 1995). Even assuming arguendo that the Board erred by
litigants typically bring a motion to reopen when alleging nonreceipt of documents, the
difference between the two types of motions has no impact on the resolution of this case—
the Board’s decision did not turn on the title of Nguhlefeh Njilefac’s motion and, in any
event, our review is essentially the same with respect to either motion. See Zhao v.
Gonzales, 404 F.3d 295, 303 (5th Cir. 2005).
3
We note that these types of motions are particularly disfavored in immigration
proceedings. Doherty, 502 U.S. at 322–23.
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giving the declarations less weight than sworn affidavits (or by otherwise
disregarding them), 4 the Board did not abuse its discretion in concluding that
Nguhlefeh Njilefac failed to rebut the presumption of delivery. The
declarations submitted by Nguhlefeh Njilefac’s counsel and his counsel’s
officemate stated only that the counsel had not received the relevant
documents—which is typically insufficient to cast doubt on a delivery,
especially where, as here, our review is highly deferential and especially since
it is not clear that staff did not receive the relevant documents. In re Eagle
Bus, 62 F.3d at 735 (noting that, although it can create a fact issue, “[a] denial
of receipt is insufficient to rebut a presumption that proper notice was
given”); see also Mauricio-Benitez v. Sessions, 908 F.3d 144, 150 (5th Cir.
2018) (concluding that the Board did not err in determining that the
presumption of delivery applied notwithstanding a party’s affidavit
indicating nonreceipt); Nunez, 882 F.3d at 507 (concluding that the Board
4
The parties both seem to think that the Board did not consider the declarations at
all, but it appears that the Board may have simply found the “declarations” less credible
because they were not sworn-to. We generally treat a declaration made “under penalty of
perjury” the same as a sworn affidavit so long as it “substantially” follows a particular
form. 28 U.S.C. § 1746 (giving such a declaration “like force and effect” to a sworn
affidavit).
As relevant to this case, however, our circuit does not appear to have addressed
either: (1) whether a “declaration” passes muster if, as here, it was made “under penalty
of perjury” but does not represent that its contents are “true and correct,” thereby failing
to comply with the full text of § 1746; or (2) whether a “declaration” that fails to comply
with all of the requirements of § 1746 must be treated as equally credible to a sworn affidavit.
Cf. Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988) (concluding that a
declaration that did not include either phrase did not comply with § 1746 because it
“allow[ed] the affiant to circumvent the penalties for perjury”); Ion v. Chevron USA, Inc.,
731 F.3d 379, 382 n.2 (5th Cir. 2013) (considering a qualifying declaration as equivalent to
a sworn affidavit in determining whether a genuine issue of material fact existed for the
purposes of a motion for summary judgment). We need not answer those questions today;
even if we treat the declarations at issue here as equivalent to sworn affidavits in all
respects, Nguhlefeh Njilefac fails to rebut the presumption of delivery under the relevant
standard of review.
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did not err in determining the presumption of delivery applied to documents
sent to a party’s mailing address but were alleged not to have reached their
intended recipient due to “failed internal workings of a household”).
Moreover, the Board’s decision was supported by substantial contrary
evidence in the record indicating that the documents had been delivered. As
the Board indicated, the documents were not returned as undelivered, and
previous materials (including the Board’s earlier decision) had been sent to
the same address, apparently without difficulty. These facts reinforce the
presumption that the documents reached Nguhlefeh Njilefac’s counsel’s
office. We therefore hold that the Board’s conclusion that the presumption
of delivery applied was not “so irrational that it [wa]s arbitrary.” 5 Id. at 505(internal quotation marks and citation omitted). Indeed, these facts are
enough to demonstrate that there is “no realistic possibility” that the Board
would have granted Nguhlefeh Njilefac’s motion even if it had treated the
declarations as equivalent to sworn affidavits. Enriquez-Gutierrez, 612 F.3d
at 407 (internal quotation marks and citation omitted).
Nguhlefeh Njilefac’s argument that the Board should have
reconsidered its decision in light of the declarations therefore fails. Because
the Board acted within its discretion in applying the presumption of delivery,
Nguhlefeh Njilefac’s remaining arguments—all stemming from the alleged
nonreceipt of the documents and his alleged inability to file a responsive
brief—also fail. See, e.g., Tima v. Gonzales, 156 F. App’x 717, 719 (5th Cir.
2005) (per curiam) (rejecting due process challenges related to a party’s
5
For the first time on appeal, Nguhlefeh Njilefac asserts that something out of the
ordinary could have nonetheless happened with respect to this particular delivery—
specifically, that the documents could have been part of a batch of mail that had been
scattered on the side of the road—but that contention is nowhere to be found in the
declarations he actually submitted to the Board.
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alleged nonreceipt of immigration hearing transcripts because the party did
not present sufficient evidence suggesting nonreceipt).
Accordingly, we DENY the petition for review.
7