Momodou Dibba v. Michael B. Mukasey , 306 F. App'x 346 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3520
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Momodou Lamino Dibba, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the
* Board of Immigration Appeals.
Michael B. Mukasey, Attorney General, *
* [UNPUBLISHED]
Respondent. *
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Submitted: October 13, 2008
Filed: January 13, 2009
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Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
Momodou Dibba, a native and citizen of the Gambia, petitions for judicial
review of a decision by the Board of Immigration Appeals (BIA) denying his motion
to reopen removal proceedings and for reconsideration. Dibba lawfully entered the
country as a student, but overstayed his student visa after leaving school. He failed
to appear for his hearing on removability and a removal order was entered in absentia.
Dibba claims he did not show up for his hearing because he did not receive the
hearing notice. The Immigration Court sent the notice by certified mail to his last
known mailing address, but it was returned with the notation: "Return to Sender:
Moved Order Expired." Dibba asserts that he still lived at the listed address, but that
the post office inexplicably did not deliver the notice to him and wrongly stamped the
"Moved Order Expired" message on the notice. Although apparently Dibba received
the in absentia removal order in July 1994, he did not file the motion to reopen until
thirteen years later, when he was arrested and detained by Immigration & Customs
Enforcement. After his arrest, Dibba moved to reopen the proceedings, and after this
motion was denied, moved for reconsideration. The Immigration Judge (IJ) denied
the motion to reopen and reconsider, holding that Dibba failed to prove insufficient
notice and that Dibba had not provided the Immigration Court with the correct mailing
address. The BIA affirmed without comment.
Our review is extremely limited. We review the IJ's and the BIA's
determinations deferentially, applying an abuse of discretion standard. Aneyoue v.
Gonzales, 478 F.3d 905, 907 (8th Cir. 2007); Reyes-Morales v. Gonzales, 435 F.3d
937, 941 (8th Cir. 2006) (holding that we review the IJ's decision directly where the
BIA has adopted and affirmed that decision). We find no such abuse in this case.
Dibba cannot meet his burden of showing inadequate notice. The postal notice
shows that he was not living at his last reported address at the time the notice was
delivered, and Dibba's self-serving evidence to the contrary does not overcome the
presumption that the United States Post Office correctly dispatched its duties. See
Ghounem v. Ashcroft, 378 F.3d 740, 744 (8th Cir. 2004) (noting the strong
presumption of proper mail delivery with certified mail). In Ghounem, we held that
the alien's sworn affidavit that he did not receive notice of the hearing was enough to
rebut the presumption of proper mail delivery because the petitioner had previously
appeared for immigration hearings, and the agency had begun using only regular, and
not certified mail for notices. Id. at 745.
Unlike Ghounem, there is no allegation here that a regularly mailed item was
lost, buttressed with a petitioner's sworn affidavit that he lived at the location in
question. Instead, there is documentary evidence that an attempt was made to deliver
certified mail to the address on file for Dibba, that a move order had expired, and that
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the mail was marked as "Return to Sender." While Dibba did establish that he did not
receive the hearing notice, the evidence also shows that he was to blame for this
occurrence–he had not provided a current address. E.g., Haider v. Gonzales, 438 F.3d
902, 908 (8th Cir. 2006) (noting that an "alien must remain vigilant and proactive by
keeping the INS and the Immigration Court informed of any address changes"). The
IJ did not err in concluding that Dibba's supporting affidavits were not sufficient proof
that he lived at this address at the time the notice was mailed but that the post office
inexplicably refused to deliver the hearing notice to him. Instead, the evidence shows
it is more likely that Dibba did not supply his correct address to the immigration
authorities, and under such circumstances, the IJ did not abuse its discretion in
denying the motion to reopen and reconsider. See id.
Dibba also argues the IJ denied his due process rights. We have reviewed the
record and disagree with Dibba's assertions. See Eta-Ndu v. Gonzales, 411 F.3d 977,
986 (8th Cir. 2005). The BIA did not abuse its discretion by affirming the IJ, and we
deny the petition for review.
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