Sabir, Muhammad v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2486
MUHAMMAD SABIR,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A95-925-117
____________
ARGUED APRIL 20, 2005—DECIDED AUGUST 26, 2005
____________
Before COFFEY, MANION, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Muhammad Sabir, a Pakistani who
stayed in the United States longer than authorized, was
ordered in absentia to be removed when he failed to appear
at his removal hearing. He moved to reopen the hearing
because he did not receive the notice of its date and time.
The immigration judge (IJ) found the notice adequate based
on evidence of its attempted delivery. As we have recently
emphasized, however, the relevant question in deciding a
motion to reopen is not whether the notice was “adequate,”
but whether it was actually received. Because the IJ’s
analysis ignored the latter question, we grant the petition
for review.
2 No. 04-2486
Sabir had been in the United States for four and a half
years (three and a half years longer than his extended
visitor’s authorization permitted) when, in March 2003, he
was personally served with a Notice to Appear. The no-
tice directed Sabir to appear before an immigration judge on
“a date to be set.” On April 10, 2003, the immigration court
sent Sabir a notice by U.S. mail informing him that his
hearing was scheduled for May 9 at 9:00 a.m. Although the
notice was correctly addressed to Sabir’s actual resi-
dence—6334 N. Talman, Apt. 1-S in Chicago—it was
returned as undelivered, stamped “Attempted—Not
Known.” The hearing was held as scheduled and, when
Sabir did not appear, he was ordered removed in absentia.
When Sabir received the removal order, which was
also sent by U.S. mail to the same address, he immed-
iately filed a motion to reopen his hearing. The motion
was based on § 240(b)(5)(C) of the Immigration and Nation-
ality Act (INA), 8 U.S.C. § 1229a(b)(5)(C), which allows
rescission of an in absentia removal order “if the alien
demonstrates that the alien did not receive notice” of the
removal proceedings. He included affidavits from his wife
and himself stating that they did not receive the notice of
the hearing and describing the poor mail service at their
apartment building. Sabir supported that statement with
photographs of mail strewn upon the entranceway floor. He
also included a series of photographs of the mailboxes in his
building, including his own, to show that other tenants had
names similar to his, which perhaps had caused the
improper delivery of the notice.
The IJ denied the motion to reopen, finding that Sabir
had received adequate notice. The judge observed that
“[a]ccording to INA § 239(c) [8 U.S.C. § 1229(c)], service
by mail is sufficient for proper notice if there is ‘proof
of attempted delivery to the last address provided by
the alien,’ ” and that the notice of Sabir’s hearing was
mailed and delivery attempted at that address. The IJ
No. 04-2486 3
considered Sabir’s assertion that mail was sometimes
carelessly delivered at his apartment building, but he
concluded that careless delivery was not the issue: “[T]he
hearing notice . . . was returned to the Immigration Court
and stamped ‘Attempted—Not Known.’ Therefore, the
hearing notice was not merely thrown on the floor of the
building lobby where it could have been picked up by
someone else.” The IJ further noted that Sabir’s mailbox
photographs—which, though undated, were evidently taken
at different times—showed his own mailbox labeled in a
variety of ways:
In one photograph, the respondent’s name is listed
as two words, specifically “Muhammad Sabir.” In
another photograph, the respondent’s name appears
as three words instead of two. In yet another photo-
graph, there are four names listed on the address label
whereas in all the previous photographs there
were only three names listed on the respondent’s
address label all relating to the respondent’s apartment
address of 1-S.
The IJ thus concluded that Sabir himself “by his own
actions or omissions may have made it impossible for the
Postal Authorities to deliver his mail.” Finding that
Sabir “failed to establish that there was improper deliv-
ery” of the notice of the hearing, the IJ held that he was not
entitled to have his case reopened. The Board of Immigra-
tion Appeals (BIA) summarily affirmed.
We have no quarrel with the conclusion of the IJ and
the BIA that the notice of the hearing was proper, and thus
that the initial in absentia order of removal was proper. As
the IJ observed, § 239(a) of the INA, 8 U.S.C. § 1229(a),
expressly allows service of the notice by regular mail.
Section 239(c), 8 U.S.C. § 1229(c), goes on to say that
service by mail is “sufficient if there is proof of attempted
delivery.” (Emphasis added.) Attempted delivery is there-
4 No. 04-2486
fore enough to support entry of an in absentia order under
§ 239. As we explained in Joshi v. Ashcroft, 389 F.3d 732,
736 (7th Cir. 2004), “[t]he fact that the intended recipient
did not actually receive notice does not contradict evidence
that delivery was attempted and the notice requirement
thus satisfied.”
The relevant question here, however, is not whether the
initial entry of the in absentia order was proper, but
whether the IJ should have rescinded the order when Sabir
moved to reopen the case. INA § 240 allows reopening “if
the alien demonstrates that the alien did not receive notice
in accordance with . . . section
239(a).” INA § 240(b)(5)(C)(ii), 8 U.S.C. § 1229a(b)(5)(C)(ii)
(emphasis added). The two issues are distinct, as we
pointed out in Joshi: “[I]n this case the issue is not no-
tice but receipt, because the statute allows an alien ordered
removed in an absentia proceeding to reopen the proceeding
if he did not receive notice even if the notice that was sent,
whether or not it was received, satisfied statutory and
constitutional requirements.” 389 F.3d at 736. See also
Pervaiz v. Gonzales, 405 F.3d 488, 492 (7th Cir. 2005);
Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir. 2004)
(“Considerations on a motion to reopen differ from those
relevant to the holding of an in absentia hearing. A motion
to reopen focuses on whether the alien actually received
notice, rather than on whether the INS sent sufficient
notice to the proper address.”).
It is undisputed that Sabir did not receive the notice
of his hearing—the record shows that it was returned to the
immigration court marked “Attempted—Not Known.” But
what if, as the IJ speculated, it was Sabir’s own fault that
the notice was not delivered? An alien should not be able to
make himself unreachable, and then later ask to have his
case reopened because he did not receive notice. See, e.g.,
Wijeratne v. INS, 961 F.2d 1344, 1347-48 (7th Cir. 1992)
(upholding denial of motion to reopen where nonreceipt of
No. 04-2486 5
notice was alien’s own fault); cf. INA § 240(b)(5)(B), 8 U.S.C.
§ 1229a(b)(5)(B) (eliminating notice requirement where
alien fails to provide contact information).
In this case, we find no basis in the record for the IJ’s
suggestion that Sabir thwarted delivery of the notice
by changing the name on his mailbox. For one thing, the
IJ does not tell us precisely what the changes were, and
we cannot decipher them ourselves, because the photo-
graphs in the record are too coarsely reproduced. All we
know is that at one point the mailbox had the name
“Muhammad Sabir”; at another point Sabir’s name had
three parts instead of two (perhaps a middle name was
used, or perhaps a compound last name); and at some third
point there were four names on the label instead of three.
The IJ did not say that the name “Muhammad Sabir” was
at any point missing from the label. We do not see how any
of these changes, even if Sabir was responsible for them,
would have “made it impossible for the Postal Authorities
to deliver his mail,” as the IJ speculated. In fact, according
to the Postal Service’s website, the name on a customer’s
mailbox is irrelevant to delivery. See United States Postal
Service, “Frequently Asked Questions,”
http://hdusps.esecurecare.net/cgi-bin/
hdusps.cfg/php/enduser/std_adp.php?p_faqid=6416 (“Mail is
delivered to residential or business addresses even if the
name on the mailpiece is different than the known resi-
dents.”). The critical information is the address, and there
is no indication that the address on the mailbox was ever
anything but “Apt. 1-S.”
The IJ correctly concluded that the initial notice of Sabir’s
hearing was properly given, but he erred in denying Sabir’s
motion to reopen in the face of conclusive proof that Sabir
did not receive the notice. We therefore GRANT the petition
for review and REMAND the case to the BIA for further
proceedings.
6 No. 04-2486
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-26-05