Terezov, Borislav B. v. Gonzales, Alberto R. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2101
BORISLAV B. TEREZOV
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
A97 355 235.
____________
ARGUED JANUARY 24, 2007—DECIDED MARCH 15, 2007
____________
Before RIPPLE, ROVNER, and WILLIAMS, Circuit Judges.
PER CURIAM. Borislav Terezov, a national of Bulgaria,
was ordered removed in absentia when he failed to ap-
pear at his removal hearing. He moved to reopen the
proceedings because, he claims, he never received the
hearing notice, which was sent to an address at which
he no longer lived. The Immigration Judge (“IJ”) and the
Board of Immigration Appeals (“BIA”) found that the
Department of Homeland Security (“DHS”) had mailed the
notice to the last address provided by Terezov. Terezov has
filed a petition for review, which we grant. There are
significant, unexplained gaps in the administrative rec-
ord compiled by the Executive Office for Immigration
Review, and given the state of the record, we are com-
2 No. 06-2101
pelled to conclude that the decision of the IJ, as supple-
mented by the opinion of the BIA, is not supported by
substantial evidence.
I.
In September 2003, just two months after he entered
the United States without inspection through Piedras
Negras, Mexico, Terezov applied for asylum. He claimed
that he endured multiple interrogations and beatings at
the hands of the police in Bulgaria due primarily to his
Rom ethnicity and his political support for the Roma
minority in Bulgaria. On his asylum application Terezov
gave his address as 1313 West Taylor in Phoenix, Arizona.
In October 2003, the United States Citizenship and Immi-
gration Services (“USCIS”), the successor to the Immigra-
tion and Naturalization Service, wrote Terezov from its
Los Angeles Asylum Office (which is actually located in
Anaheim, California), requesting additional proof that he
resided within its jurisdiction, which includes Phoenix.
Terezov’s reply is not in the administrative record.
As far as that record shows, Terezov’s next written
communication with the Los Angeles Asylum Office was
a letter advising that he had moved to a new address in
Carmel, Indiana. That handwritten letter, which bears
at the top a stamped date of January 23, 2004, conveys
the new address but nothing more. Terezov did not ask
that his file be transferred to the Chicago Asylum Office or
to any other office, and nothing in the administrative
record discloses what, if anything, the Los Angeles Asylum
Office did in response. What the record does show is that
in June 2004 the USCIS received from Terezov an ap-
plication for employment authorization at the agency’s
California Service Center in Laguna Niguel. In this
application, which Terezov based on his pending asylum
application, he listed a new Phoenix address: 12825 North
No. 06-2101 3
42nd Street, Apartment 1047. The USCIS corresponded
with Terezov at this new address regarding the applica-
tion for employment authorization, and when the agency
denied that application in July 2004, it sent the written
decision to Terezov at the new address. That document
states explicitly that Terezov’s asylum application was
“currently at the Asylum Office in Los Angeles” and
directed him to contact that office if he had “any questions
about [his] application.”
What happened in the following months is impossible to
glean from the sparse administrative record. It appears
that at some point Terezov’s file was transferred to the
Chicago Asylum Office, though when this occurred is
unclear. All that we are able to piece together is that an
asylum interview was scheduled, but Terezov did not
attend. There is no documentation in the record showing
how, or even if, Terezov was told about this asylum
interview, nor does the record disclose when this inter-
view was ordered or when precisely it was to take place.
All the administrative record discloses is that on February
15, 2005, an asylum officer based in Chicago referred
the matter to the immigration court in Chicago due to
Terezov’s absence from the asylum interview. That same
date the Chicago Asylum Office mailed a Notice to Ap-
pear directing Terezov to attend a removal hearing before
an IJ in April 2005. The Notice to Appear was sent by
regular mail to the Indiana address given by Terezov a
year earlier, but there is no evidence in the record that
he actually received it. Terezov did not appear, and the IJ
immediately ordered him removed in absentia. The
immigration court also sent the order of removal to the
Indiana address, but it was returned with the notation:
“not deliverable as addressed, unable to forward.”
One month later Terezov filed pro se a motion to reopen
the removal proceedings. He did not say how he learned
about the in absentia order of removal, but he expressed
4 No. 06-2101
surprise that it had issued. Terezov explained that he was
living in Indiana looking for work from November 2003
until late February 2004, but was not living there when
the Notice to Appear was mailed in February 2005. He
denied ever receiving that notice. Terezov added that he
submitted his asylum application to the “California
District Office,” and had never tried to transfer it else-
where. He also insisted that he notified the Los Angeles
Asylum Office after he moved back from Indiana to
Phoenix, where he lived first at 12825 North 42nd Street,
Apartment 1047 and later at 4704 East Paradise Village
Parkway North, Apartment 139. Terezov attached to
his motion copies of two certified-mail return receipts
that he characterized as “confirmation from the Postal
services for on time filing Change of Address Form.” Both
return receipts were stamped “received” by the Los
Angeles Asylum Office, the first in April 2004 and the
second in August 2004, and both were returned to Terezov
at his apartment on North 42nd Street. Terezov also
submitted copies of the USCIS communications he received
at this Phoenix address regarding his application for
employment authorization, including the adverse deci-
sion in July 2004 that told Terezov his asylum application
was then located at the Los Angeles Asylum Office.
In opposing the motion to reopen, the government sim-
ply represented to the IJ that its review of the admin-
istrative file showed that Terezov “sent only one change
of address to the Department [of Homeland Security].”
The government explained that it failed to locate any
“change of address notices or letter from the respondent
in the administrative file” except for the handwritten
change of address that “is date stamped January 23, 2004.”
Arguing that the Notice to Appear had been properly
sent to the last address provided by Terezov, the govern-
ment contended that Terezov failed to meet his burden
for reopening. The IJ agreed, reasoning that “there is
No. 06-2101 5
nothing in the record to reflect that he ever provided no-
tice to the Asylum Office of his return to Phoenix.” The
IJ further remarked that there was no indication in the
record that the Notice to Appear was returned as undeliv-
erable, and concluded that Terezov had failed to pro-
vide “credible evidence,” such as “affidavits or other
evidentiary material,” to prove he never received it.
Terezov then retained counsel and appealed the IJ’s
decision to the BIA. In that appeal, counsel acknowl-
edged that Terezov had changed his address to Carmel,
Indiana, in January 2004 while he was in the Chicago
area seeking employment, but reiterated Terezov’s prior
representation the he notified the Los Angeles Asylum
Office in April 2004 about his return to Phoenix. Counsel
argued that “DHS and the Asylum Office were on Notice
since April 2004 of Borislav Terezov’s new/correct ad-
dress,” ten months before the Notice to Appear was
mailed to the outdated Indiana address. Counsel con-
cluded that, “[c]learly, there can be no dispute that the
Government sent the [Notice to Appear] to the old/wrong
address in Indiana.” Counsel resubmitted the two return
receipts showing that the Los Angeles Asylum Office had
received mail from Terezov in April 2004 and again in
August 2004. Counsel also submitted affidavits from
Terezov’s wife, from one of his friends in Phoenix, and
from his former Indiana landlord, who collectively
vouched that Terezov lived in Phoenix when the Notice to
Appear was mailed to his outdated Indiana address, and
that he apprised the DHS every time he moved.
The government offered no response. Despite that
silence, however, the BIA affirmed the denial of Terezov’s
motion to reopen. The BIA adopted the IJ’s reasoning
but added its own further explanation that Terezov had
not provided “any reliable evidence” that he submitted a
change-of-address form after returning to Phoenix, and
thus was deemed to have received the Notice to Appear
6 No. 06-2101
at the Indiana address. The BIA gave no weight to the
April and August 2004 return receipts because Terezov did
not produce “a copy of the change of address form allegedly
submitted” and, according to the BIA, had no “other
proof . . . that he even submitted a change of address
form after the one submitted in January 2004.” The BIA
also discounted the 2004 communications from the USCIS
concerning Terezov’s application for employment authori-
zation because, according to the BIA, those communica-
tions proved only that the California Service Center, not
the Los Angeles Asylum Office, knew of Terezov’s re-
turn to Phoenix. Reasoning that an alien “cannot make
himself unreachable, and then later ask to have his case
reopened because he did not receive notice,” the BIA
dismissed Terezov’s appeal.
II.
In his petition for review, Terezov argues that it was
an abuse of discretion not to reopen the proceedings
because, he says, the evidence he submitted establishes
that the DHS had his current Phoenix address but errone-
ously mailed the Notice to Appear to his outdated Indiana
address. Essentially, this case turns on whether sub-
stantial evidence supports the conclusion of the immigra-
tion courts that Terezov did not update the Los Angeles
Asylum Office with his new address when he returned
from Indiana to Phoenix in February 2004.
The IJ denied Terezov’s motion to reopen largely on the
basis of the government’s representation that it searched
the administrative file but could not find any notification
from Terezov that he had moved back to Phoenix from
Indiana. The government’s representation, however, is
only as good as the file it searched, and in this case the
administrative record is so incomplete as to make it
impossible to draw any fair inference from the absence of
No. 06-2101 7
a particular document. For example, even though Terezov
was placed in removal proceedings only because he did not
attend his asylum interview, the administrative record
includes no evidence showing that notice of that inter-
view ever was sent to him at any address. An asylum
applicant who fails to appear for a scheduled interview
risks dismissal of his application, but a failure to ap-
pear will be excused if the asylum officer neglected to
mail the interview notice to the last address provided by
the applicant. See 8 C.F.R. § 208.10. Because there is no
copy of the interview notice (or any other related docu-
mentation) in the administrative record, it is impossible
to tell if the notice was mailed and if so, to what address.
If we are to accept the government’s logic—which the IJ
did—we would have to conclude based on this record that
notice of the asylum interview was not sent to Terezov at
all. Surely the government would dispute that conclusion,
but our point is that the government cannot have it both
ways. What is not in the administrative record is signifi-
cant only if the record is otherwise complete, but in this
case the government wants us to overlook the obvious
gaps in Terezov’s file. We decline to take that approach.
Terezov argues that substantial evidence does not
support the finding that his Notice to Appear was mailed
to the last address he provided. We will uphold an agency’s
factual findings if they are supported by substantial
evidence, which is “evidence a reasonable mind would find
adequate to support a conclusion.” Singh v. Gonzales, 404
F.3d 1024, 1027 (7th Cir. 2005). To initiate removal
proceedings, the DHS must serve a Notice to Appear on
the alien, see 8 U.S.C. § 1229(a), and service is sufficient
if there is proof of “attempted delivery to the last ad-
dress provided by the alien,” id. §§ 1229(c), see also
1229a(b)(5)(A). If the alien fails to appear, the IJ can order
him removed in his absence if the DHS “establishes by
clear, unequivocal, and convincing evidence that the writ-
8 No. 06-2101
ten notice [pursuant to § 1229(a)] was so provided and that
the alien is removable.” Id. § 1229a(b)(5)(A). However, an
in absentia order of removal can be rescinded upon a
motion to reopen if the alien demonstrates that he did not
“receive notice.” See id. § 1229a(b)(5)(C)(iii); Ko v. Gonza-
les, 421 F.3d 453, 455-56 (7th Cir. 2005) (vacating denial
of motion to reopen where notice was returned as undeliv-
erable); Sabir v. Gonzales, 421 F.3d 456, 458-59 (7th Cir.
2005) (remarking that receipt, not notice, is the issue for
a motion to reopen); Joshi v. Ashcroft, 389 F.3d 732, 736
(7th Cir. 2004) (same).
This sparse record lacks substantial evidence to sup-
port that the Notice to Appear was sent to the last ad-
dress Terezov provided. As we have noted, the only
support for that finding is the government’s representa-
tion, made in response to Terezov’s motion to reopen,
that the administrative file included only one change-of-
address letter informing the Los Angeles Asylum Office of
his November 2003 move to Indiana. But this administra-
tive record lacks basic, relevant documents. For example,
not only is there no copy of the asylum-interview notice,
but neither is there any record of how the Los Angeles
Asylum Office resolved its request for further proof of
Terezov’s residency within its jurisdiction, or any docu-
ments evidencing when and why the Los Angeles Asylum
Office transferred Terezov’s file to the Chicago Asylum
Office. Thus, we ascribe little significance to the fact
that the government can point to the absence of a second
change-of-address form. The absence of a second form is
equally consistent with Terezov’s theory that his form
was mishandled. And this theory is not implausible.
According to a report released by the Government Account-
ability Office after the parties filed their briefs, the USCIS
had entirely lost track of more than 100,000 alien files by
July 2006. UNITED STATES GOVERNMENT ACCOUNTABILITY
OFFICE, IMMIGRATION BENEFITS: ADDITIONAL EFFORTS
NEEDED TO HELP ENSURE ALIEN FILES ARE LOCATED
No. 06-2101 9
WHEN NEEDED 4 (2006), available at http://www.gao.gov/
new.items/d0785.pdf?source=ra (last visited February 8,
2007). On the other hand, Terezov submitted evidence in
the form of documents received from the USCIS and re-
turn receipts to support his contention that he updated
the Los Angeles Asylum Office of his February 2004 re-
turn to Phoenix. Terezov also included the affidavits
from his wife, his friend, and his former Indiana landlord,
which corroborate his assertion that he updated the DHS
every time he moved.1
We have not had occasion to discuss what evidence
could support a finding that an alien failed to update his
address, but our review of facts in other immigration
contexts is instructive. We have acknowledged that an
alien can prove necessary elements of his asylum claim
through circumstantial evidence, and that the immigra-
tion courts must “consider the evidence as a whole,” not as
separate fragments. See Cecaj v. Gonzales, 440 F.3d 897,
899 (7th Cir. 2006) (vacating removal orders where IJ
discredited evidence only after breaking it into separate
fragments and where indirect evidence proved disputed
element of asylum claim); Gjerazi v. Gonzales, 435 F.3d
800, 812 (7th Cir. 2006) (noting that alien can prove
political persecution with circumstantial evidence).
Moreover, in vacating a BIA denial of a motion to reopen,
we have noted that a “decision that resolves a critical
1
The BIA did not mention the affidavits, which were sub-
mitted by counsel in Terezov’s appeal to the BIA and thus were
not before the IJ. The BIA “will not engage in factfinding in the
course of deciding appeals,” see 8 C.F.R. § 1003.1(d)(3)(iv), so the
BIA might have declined to consider these affidavits. The BIA’s
order does not say either way, but the government mentions
the affidavits and discloses their content in its brief. The gov-
ernment has never taken the position that the affidavits were
not properly before the BIA.
10 No. 06-2101
factual question without mention of the principal evidence
cannot be considered adequately reasoned.” Joshi, 389
F.3d at 736-37. Cf. Ayi v. Gonzales, 460 F.3d 876, 881 (7th
Cir. 2006) (holding that credibility finding that disre-
gards asylum applicant’s evidence without explanation
is not supported by substantial evidence).
The return receipts, which Terezov consistently has said
were from his change-of-address forms he sent to the
Los Angeles Asylum Office, provide strong circumstan-
tial evidence that Terezov informed that office of his re-
turn to Phoenix. One return receipt demonstrates that the
asylum office received mail from Terezov in April 2004,
just over a month after his return to Phoenix, and both
receipts were returned to the new address in Phoenix, not
the old Indiana address. And although the government
asserts that DHS received only the January 2004 notifica-
tion of Terezov’s move to Indiana, it has never attempted
to explain what mail was attached to these return receipts
if not, as Terezov asserts, change-of-address forms. Surely
he mailed something, but whatever it was, the asylum
office did not put it in its file.
Along with this indirect evidence, Terezov also sub-
mitted with his motion to reopen the documents he
received from the USCIS concerning his application for
work authorization, but the IJ and the BIA ignored the
import of this evidence. In discounting the USCIS docu-
ments, the immigration courts neglected to consider that
those documents conclusively demonstrate that Terezov
updated other DHS offices about his whereabouts, which
corroborates his assertion that he also updated the
asylum office: it counteracts any inference that he was
hiding from immigration officials and shows his atten-
tiveness to his case. And though this corroboration may be
inconclusive, ignoring even inconclusive corroborating
evidence can undermine the decision of an immigration
court. See Joshi, 389 F.3d at 736-37; Ko, 421 F.3d at 455-
No. 06-2101 11
56 (rejecting IJ’s finding that alien was deliberately hid-
ing when she had maintained contact with immigration
officials regarding her student visa even as DHS, unaware
of her current address, was ordering her removed in
absentia).
The BIA concluded that without producing a copy of
what he sent, Terezov could not prove that he informed the
Los Angeles Asylum Office of his return to Phoenix in
February 2004. But to insist upon seeing a copy of the
communication puts an alien who may not have retained
a copy in a no-win situation. A copy of a change-of-address
notification may be the best way of proving that the DHS
relied on an outdated address, but no court has held that
it’s the only way. Cf. Silva-Carvalho Lopes v. Gonzales,
468 F.3d 81, 85-86 (2d Cir. 2006) (concluding that alien
can prove lack of receipt through affidavit and other
circumstantial evidence); Nibagwire v. Gonzales, 450 F.3d
153, 157-58 (4th Cir. 2006) (same); Ghounem v. Ashcroft,
378 F.3d 740, 745 (8th Cir. 2004) (same); Joshi, 389 F.3d
at 736 (“[T]he intended recipient’s affidavit of nonreceipt
is evidence.”); Salta v. INS, 314 F.3d 1076, 1079 (9th Cir.
2002) (same). The evidence, contrary to the conclusion of
the IJ and BIA, shows that Terezov informed the Los
Angeles Asylum Office of his February 2004 return to
Phoenix, and that DHS thus failed to send the Notice to
Appear to the last address provided by him.
It is an abuse of discretion to refuse to rescind an in
absentia order of removal and reopen the proceedings
when the record shows that the DHS sent the alien’s
Notice to Appear to an incorrect or old address. See Singh
v. Gonzales, 412 F.3d 1117, 1121-22 (9th Cir. 2005)
(concluding that denial of motion to reopen was abuse of
discretion where evidence showed that Notice to Appear
was sent to old address); Beltran v. INS, 332 F.3d 407,
408-09 (6th Cir. 2003) (reversing denial of motion to
12 No. 06-2101
reopen because hearing notice was sent to outdated
address even though alien properly notified INS of his
new address); Kamara v. INS, 149 F.3d 904, 907 (8th Cir.
1998) (noting that, because INS failed to send hearing
notice to most recent address, alien did not receive proper
notice and motion to reopen should have been granted).
The DHS must provide an alien notice before placing
him in removal proceedings, 8 U.S.C. § 1229(a)(1), and
service by mail is sufficient only if “there is proof of
attempted delivery to the last address provided by the
alien,” id. § 1229(c) (emphasis added). When the DHS
has mailed notice to an incorrect address, the agency has
not effected service in a proper manner and should not
benefit from the presumption of receipt that normally
flows from proof of mailing. Cf. Nazarova v. INS, 171 F.3d
478, 482 (7th Cir. 1999) (noting that due process re-
quires notice reasonably calculated to provide alien with
actual notice of proceedings).
Here, the IJ and BIA concluded that Terezov received
the Notice to Appear because, in their view, the adminis-
trative record showed that it was sent to the last address
Terezov provided. But, as noted above, that finding is
not supported by substantial evidence and therefore the
DHS is not entitled to a presumption that the notice
was properly delivered to Terezov. And without that
presumption there is no evidence in this record that
Terezov received notice; to the contrary, Terezov has
consistently maintained that he moved from his Indiana
address a year before the Notice to Appear was sent
there. Accordingly, the refusal to set aside his order of
removal was an abuse of discretion.
The petition for review is GRANTED and the case is
REMANDED to the BIA for further proceedings.
No. 06-2101 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-15-07