Gezim Dakaj v. Eric Holder, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2554
G EZIM D AKAJ, M IRE D AKAJ, and
K RISTIAN D AKAJ,
Petitioners,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
Nos. A95-583-271, A95-583-272, A95-583-273
A RGUED JANUARY 28, 2009—D ECIDED A UGUST 31, 2009
Before B AUER, R IPPLE and T INDER, Circuit Judges.
P ER C URIAM. Gezim Dakaj, his wife Mire and their
minor son Kristian have filed this petition seeking
review of a decision of the Board of Immigration Appeals
(the “BIA” or the “Board”) affirming an immigration
judge’s denial of their applications for asylum, with-
holding of removal and protection under the Convention
2 No. 08-2554
Against Torture (“CAT”). For the reasons set forth in this
opinion, we now grant the petition for review, vacate
the BIA’s decision and remand the case for further pro-
ceedings.
I
BACKGROUND
In June 2002, Gezim Dakaj applied for asylum, with-
holding of removal and CAT relief on behalf of himself,
his wife Mire and their son Kristian. The Dakajs
claimed that they risked persecution if required to
return to Albania because of Gezim’s and Mire’s partic-
ipation in the anti-Communist movement there. At their
hearing in February 2007, where they appeared pro se,
Gezim testified that, since joining the movement and
the Democratic Party 1 in 1990, he had been arrested
twice and beaten, that at various times men in police
uniforms or supporters of the Socialist Party had
prevented him from operating his fruit stand and that
shots had been fired at his house. Mire testified that men
harassed and threatened her at their fruit stand because
they supported the Democratic Party.
1
The Albanian Democratic Party, the largest opposition to the
Socialist Party, has been in and out of power since 1992. See
Gjerazi v. Gonzales, 435 F.3d 800, 802 (7th Cir. 2006); Bace v.
Ashcroft, 352 F.3d 1133, 1135 (7th Cir. 2003). It is a center-right
conservative political party and has been the leading party in
the governing coalition since the 2005 parliamentary elections.
No. 08-2554 3
The immigration judge (“IJ”) discredited the Dakajs’
story based on inconsistencies in their testimony. The IJ
also concluded that the mistreatment described did not
constitute persecution and that the Dakajs did not face
a risk of persecution if they returned to Albania be-
cause the Democratic Party was now in power.
On March 8, 2007, the Dakajs filed, pro se, a timely
notice of appeal (“NOA”). The NOA form instructed
them to state in detail their reasons for appealing, but
they included only two sentences:
(1) The immigration judge misstated facts about
the current government of Albania and
(2) The immigration judge refused to let Respondent,
Mire Dakaj, testify regarding her experiences in Alba-
nia and about events that were directly relevant to
her claim for asylum.
A.R. 53. They also checked the box on the form
specifying that they intended to file a separate written
brief.
On September 6, 2007, the BIA sent to the Dakajs’ address
through regular mail the following documents: (1) a
briefing schedule informing the Dakajs that they had
until September 27, 2007, to submit a brief, (2) a copy of
the IJ’s decision and (3) a transcript of the hearing testi-
mony. The Dakajs never filed a brief, and so on October 18,
2007, the Government moved for summary affirmance
of the IJ’s decision.
The Dakajs received the Government’s motion on or
about October 20. They then retained counsel, who filed
4 No. 08-2554
a brief on November 5 along with a motion asking the
BIA to accept the brief “out of time.” Id. at 18. The
Dakajs claimed that they were not aware of the briefing
deadline until they received a copy of the Government’s
submission and saw an attached copy of the briefing
schedule stating that their brief was due on September 27.
In affidavits attached to their motion, Gezim and Mire
swore that they never had received any mail from the
Board prior to October 20, that they had not moved
from their current address, that they had contacted and
hired an attorney for advice “since we did not receive
anything that had told us to file our brief,” and that
they “did not intentionally fail to file the opening brief.” Id.
The BIA denied the motion, rejected the Dakajs’ brief,
and informed the Dakajs that it would not consider any
further motions to accept a brief. The BIA found the
Dakajs’ reasons for delay insufficient, pointing out that
the briefing schedule and hearing transcript had been
mailed to the Dakajs, yet there was no evidence that
these materials had been returned as undeliverable by
the U.S. Postal Service.
In February 2008, the Dakajs asked to modify and
amend their NOA, reiterating that they had not received
the briefing schedule, that they had acted conscientiously
in presenting their case to the BIA, and that it would be
inequitable for the BIA to summarily dismiss their case.
Their newly proposed NOA specified four grounds
for appeal: the IJ’s adverse credibility finding, the past-
persecution analysis, the translator’s effectiveness, and
the IJ’s finding that country conditions in Albania had
improved.
No. 08-2554 5
The BIA denied the Dakajs’ motion to modify the NOA.
The BIA found that because the Dakajs produced no
objective evidence to support their “self-serving” asser-
tion that they never had received the briefing schedule,
they had failed to overcome the presumption of regular
delivery of the mail. Id. at 2-3. The Dakajs’ motion to
modify the NOA, the BIA continued, was merely an
attempt to circumvent the earlier denial of their motion
to file an untimely brief. The BIA also took issue with
what it described as a “false factual claim” in the Dakajs’
original NOA regarding the IJ’s refusal at the hearing to
allow Mire to testify; the BIA concluded that the
Dakajs’ “willingness to make a false claim to this Board
undercuts the reliability of their claim . . . that they
did not receive the briefing schedule mailed by the
Board and also weighs against a favorable exercise of
discretion on their motion.” Id. at 3.
The Dakajs then filed a petition for review in this
court. In their petition, they challenge the BIA’s refusal
to allow them to file an untimely brief or to amend
their notice of appeal. They also challenge the substan-
tive basis for the IJ’s decision.
II
DISCUSSION
A. Denial of Leave to File Brief Out-of-Time
This court reviews the BIA’s decision to reject a late
brief for abuse of discretion. Gutierrez-Almazan v. Gonzales,
491 F.3d 341, 343 (7th Cir. 2007). The BIA may reject a
6 No. 08-2554
tardy brief, see 8 C.F.R. § 1003.3(c)(1) (“In its discretion
the Board may consider a brief that has been filed out of
time.” (emphasis added)), but it must provide an ex-
planation showing that it considered the petitioner’s
arguments and did not merely react to them. Gutierrez-
Almazan, 491 F.3d at 343-44.
The BIA denied the Dakajs’ motion for leave to file a
late brief because it disbelieved their claim that they
had not received notice of the briefing schedule for their
appeal. The Dakajs submitted, along with their motion
for leave to file a late brief, affidavits in which they de-
clared under oath that they never received the briefing
schedule that was sent by regular mail to their house.
The BIA declined to accept the Dakajs’ claims; in its
decision denying the motion, the Board wrote: “[A] review
of the record indicates that the briefing schedule
and hearing transcript were mailed to the respondents
at their current mailing address . . . and there is no indica-
tion that they were returned to the Board as undeliv-
erable by the United States Postal Service.” Petitioners’ Br.
App. 37. Later, in its decision affirming the IJ’s decision,
the Board expanded on its determination not to accept
the late-filed brief. There, the Board explained that
“[t]he respondents’ self-serving claim that they did not
receive the briefing schedule, standing alone, is insuf-
ficient without any objective evidence to overcome the
presumption of regular delivery of the mail and the lack
of any evidence in the record that this Board’s briefing
schedule was not delivered.” A.R. 53.
The Dakajs submit that the BIA’s decision to deny
them leave to file a late motion should be reversed; they
No. 08-2554 7
contend that the Board did not explain adequately its
reasons for rejecting their sworn assertions that they did
not receive the briefing schedule. The Government
submits that the Board’s explanation was sufficient; it
notes that the Board explained, in its initial decision on
the motion, that there was no evidence in the record to
indicate that the briefing schedule had been returned by
the Post Office as undeliverable. The Government also
points to the Board’s final decision on the Dakajs’ appeal,
in which the Board stated that the Dakajs’ “self-serving
claim” of non-receipt was “insufficient without any
objective evidence to overcome the presumption of
regular delivery of mail . . . .” Resp. Br. 15 (quoting A.R. 2-
3, 336-37, 353-54).
Whether an asylum applicant received notice of his
asylum proceedings is a question of fact. See Joshi v.
Ashcroft, 389 F.3d 732, 735 (7th Cir. 2004). The BIA is
entitled to presume that a notice sent via regular
mail was delivered to the recipient to whom it was ad-
dressed. See, e.g., Vincent v. City Colls. of Chi., 485 F.3d 919,
922 (7th Cir. 2007) (“Evidence of mailing is evidence of
delivery.”). The BIA itself has recognized, however, that
the presumption of delivery of regular mail is a weaker
one than the presumption that accompanies certified
mail and may be rebutted with evidence that the alien
did not receive the notice. See Matter of M-R-A-, 24 I. & N.
Dec. 665, 673-74 (BIA Oct. 31, 2008).
We have said in the past that “a bare, uncorroborated,
self-serving denial of receipt, even if sworn, is weak
evidence.” Joshi, 389 F.3d at 735. See also Derezinski v.
8 No. 08-2554
Mukasey, 516 F.3d 619, 622 (7th Cir. 2008) (“The petitioner’s
sworn denial was the only evidence of nonreceipt, and
it was weak evidence” where the petitioner had been
a fugitive for eleven years before finally being appre-
hended during a traffic stop.). We also have made
clear, however, that such a denial must be evaluated
in light of all of the relevant circumstances present in
the case; if other evidence exists that supports the
alien’s claim, then the Board must weigh that evidence
as well. In Joshi, for example, the Board had rejected an
asylum applicant’s sworn assertion of non-receipt as
“uncorroborated.” Joshi, 389 F.3d at 735. We reversed
because the BIA had failed to consider the applicant’s
claim in light of her conduct after the notice was
mailed. We wrote:
[I]t isn’t true that the claim [of non-receipt] was not
corroborated, or, what amounts to the same thing,
was not supported by “objective” evidence. The fact
that before the date of the hearing she sent two certi-
fied letters to the immigration service inquiring about
the status of her proceeding is some “objective” evi-
dence, some corroboration, that she hadn’t received
notice of the hearing. It is inconclusive evidence, but
as it was not even mentioned by the Board we
cannot tell whether the Board thought it out-
weighed by the statistical likelihood that correctly
addressed U.S. mail is delivered to the addressee, or
simply overlooked it. A decision that resolves a
critical factual question without mention of the princi-
pal evidence cannot be considered adequately rea-
soned.
No. 08-2554 9
Joshi, 389 F.3d at 736-37 (citation omitted). Accordingly,
we vacated the Board’s order of removal and remanded
the case for reconsideration of the applicant’s claim in
light of all relevant information available. Accord Silva-
Carvalho Lopes v. Mukasey, 517 F.3d 156, 160 (2d Cir. 2008)
(“[T]he presumption of receipt in regular mail cases
does no more than to shift a tie-breaking burden of proof
to the alien claiming non-receipt.”); Kozak v. Gonzales, 502
F.3d 34, 37 (1st Cir. 2007); Ghounem v. Ashcroft, 378 F.3d
740, 744-45 (8th Cir. 2004); Salta v. INS, 314 F.3d 1076, 1079
(9th Cir. 2002) (“Where a petitioner actually initiates a
proceeding to obtain a benefit, appears at an earlier
hearing, and has no motive to avoid the hearing,
a sworn affidavit from Salta that neither she nor a re-
sponsible party residing at her address received the
notice should ordinarily be sufficient to rebut the pre-
sumption of delivery and entitle Salta to an evidentiary
hearing to consider the veracity of her allegations.”). In
Derezinski, on the other hand, we approved the
Board’s disbelief of the alien’s denial where no such
corroborating evidence was present. 516 F.3d at 622.
Indeed, the BIA itself, in two cases decided after the
Dakajs’, has acknowledged the necessity of a plenary
review of the circumstances surrounding an alien’s
claim of non-receipt of notice. In Matter of M-R-A-, the
Board set forth an extensive, non-exclusive list of
relevant factors:
(1) the respondent’s affidavit; (2) affidavits from
family members or other individuals who are knowl-
edgeable about the facts relevant to whether notice
10 No. 08-2554
was received; (3) the respondent’s actions upon learn-
ing of the in absentia order, and whether due
diligence was exercised in seeking to redress the
situation; (4) any prior affirmative application for
relief, indicating that the respondent had an incen-
tive to appear; (5) any prior application for relief
filed with the Immigration Court or any prima facie
evidence in the record or the respondent’s motion of
statutory eligibility for relief, indicating that the
respondent had an incentive to appear; (6) the respon-
dent’s previous attendance at Immigration Court
hearings, if applicable; and (7) any other circumstances
or evidence indicating possible nonreceipt of notice.
24 I. & N. Dec. at 674; accord Matter of C-R-C-, 24 I. & N.
Dec. 677, 679-80 (BIA Oct. 31, 2008).
Contrary to its later recognition of the need to
consider all relevant information, the Board in the
Dakajs’ case does not appear to have considered any-
thing other than the affidavits and the fact that the
United States Postal Service did not return the notice as
undeliverable. As the Board has acknowledged, however,
the Postal Service will not necessarily know when a
piece of mail has been misdelivered. See Matter of M-R-A-,
24 I. & N. Dec. at 667 (noting that “if the United States
Postal Service mistakenly delivers the notice to the
wrong address, the person who actually received it
might not return it”).
More importantly, there is no indication that the
Board gave any consideration to any of several facts that
support the Dakajs’ claim that they never received no-
No. 08-2554 11
tice. The Dakajs initiated these proceedings all the way
back in 2002, when Gezim filed an application for
asylum, withholding of removal, and protection under
the CAT. The Dakajs’ application was an affirmative
invocation of the procedural and substantive protections
of the immigration-law process—not merely a reaction to
removal proceedings instituted by the Government, as
claims for asylum often are. Furthermore, the Govern-
ment does not claim that the Dakajs ever missed any
other deadline or hearing date at any point in the pro-
ceedings; to the contrary, they attended their hearing
before the IJ and promptly filed a notice of appeal of the
IJ’s decision. Finally, it is clear that the Dakajs took quick
action in an attempt to cure their default. The Dakajs
were served with the Government’s motion for summary
affirmance “on or about” October 20, 2007. App. 18. They
promptly hired counsel, who submitted a brief and a
motion to file it out-of-time on November 5.
These facts, taken together, could be read to confirm
the Dakajs’ claim of non-receipt by establishing that they
had a demonstrated commitment to the asylum process
and a strong interest in setting forth their position in
their brief to the Board. From this it could be inferred
that if the Dakajs had known that an appellate brief
was due on September 27, they would have filed one on
or before that date. We do not hold that the Board
was required to reach that conclusion; that determination
is within the Board’s province, at least in the first in-
stance. We do hold, however, that the Board was required
to consider these relevant factors, along with any others
of which it might be aware, and to explain its decision in
light of them.
12 No. 08-2554
Accordingly, we must vacate the Board’s decision
and remand the case for reconsideration of the Dakajs’
motion to file their brief out-of-time.
B. Denial of Leave to File Amended Notice of Appeal
The Dakajs also submit that the BIA erred in denying
their motion to submit a modified notice of appeal. We
do not see any basis for ordering the Board to permit the
Dakajs to amend. The Dakajs submit that the Board’s
refusal to let them amend deprived them of due process
of law. Their inability to present their arguments to the
Board did not stem from any infirmity in their original
notice of appeal, however; it stemmed from their failure
to submit a timely brief after telling the Board that they
were going to do so. The enforcement of procedural
deadlines does not violate due process. Indeed, “[c]ourts
cannot operate without setting and enforcing deadlines.”
Gross v. Town of Cicero, Ill., 528 F.3d 498, 499-500 (7th Cir.
2008). Moreover, even if their original notice of appeal
were somehow infirm, the Dakajs could not blame
that infirmity on their failure to receive the briefing
schedule because the notice necessarily was filed long
before the briefing schedule was due to be sent.
Thus, we see no basis for requiring the Board to allow
the Dakajs to amend their notice of appeal in the way
that they sought to do in this case. As the Board recog-
nized, their attempt to amend the notice appears simply
to have been a second attempt to present the same argu-
ments that the Board declined to consider when it
refused to accept the late-filed brief. If on remand, how-
No. 08-2554 13
ever, the Board decides to accept the Dakajs’ brief out-of-
time, it then may have occasion to reconsider the notice-of-
appeal issue, albeit in a slightly different way.
If it does decide to accept the brief, the Board should
then address the merits of any of the arguments therein
that it finds to be within the scope of the notice of ap-
peal. In making this determination, the Board of course
should keep in mind the “long-established principle that
the submissions of pro se aliens should be liberally con-
strued,” Sembiring v. Gonzales, 499 F.3d 981, 990 (9th Cir.
2007), as well as the fact that the Dakajs do not speak
English. If the Board concludes that any of the
arguments in the brief are outside the scope of the notice
of appeal, it then should consider whether to construe
these portions of the brief as a motion to amend the
notice of appeal and, if so, whether such a motion
should be granted.
C. Substantive Challenges to the IJ’s Decision
Finally, the Dakajs raise various substantive objections
to the IJ’s decision denying their applications for relief.
As the Government points out, because the Board denied
the Dakajs’ motions to submit their brief and amend
their notice of appeal, it has not yet had an opportunity
to consider the Dakajs’ arguments. If, on remand, the
Board decides to grant them permission to file their
brief out-of-time, it then will have an opportunity to
rule on the merits of their arguments, and we shall be
able to review the Board’s decisions on a subsequent
appeal. If the Board decides to deny the motion, we
14 No. 08-2554
shall be able to review that decision, as well as the sub-
stantive issues, if any, that we find to be properly pre-
sented. Either way, the appropriate time for us to
address the merits of the IJ’s and the Board’s decisions
is after the Board has had an opportunity to revisit its
decision on the Dakajs’ motion to file their brief out-of-
time.
Conclusion
For the reasons set forth above, we grant the Dakajs’
petition for review, vacate the BIA’s decision and remand
this case to the BIA for further proceedings consistent
with this opinion.
P ETITION FOR R EVIEW G RANTED ;
C ASE V ACATED AND R EMANDED.
8-31-09