Filed: Jun. 10, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 6-10-2009 Patil v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 08-2845 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Patil v. Atty Gen USA" (2009). 2009 Decisions. Paper 1204. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1204 This decision is brought to you for free and open access by the Opinions of
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 6-10-2009 Patil v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 08-2845 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Patil v. Atty Gen USA" (2009). 2009 Decisions. Paper 1204. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1204 This decision is brought to you for free and open access by the Opinions of ..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-10-2009
Patil v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2845
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Patil v. Atty Gen USA" (2009). 2009 Decisions. Paper 1204.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1204
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2845
HIREN PATIL,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A98-177-088)
Immigration Judge: Honorable Henry S. Dogin
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 27, 2009
Before: AMBRO, FISHER and JORDAN, Circuit Judges
(Opinion filed: June 10, 2009)
OPINION
PER CURIAM
Petitioner Hiren Patil seeks review of a final decision by the Board of Immigration
Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”) to deny his
1
motion to reopen his removal proceedings and dismissing his appeal. For the reasons that
follow, we will grant the petition for review.
I. Background
Patil, a native and citizen of India, entered the United States without inspection in
September 2005. He was apprehended in Tacoma, Washington and was served with a
notice to appear.1 Patil retained counsel in Washington and was released from custody
upon payment of a $5,000.00 bond. After his release, Patil informed the Department of
Homeland Security (“DHS”) that he would be living at the home of a friend, Paras Naik,
at an address in Lodi, New Jersey. Venue was changed to New Jersey, and Patil’s
Washington counsel withdrew from the case. A removal hearing was scheduled. A
notice of hearing dated February 23, 2006, was mailed to Patil, in care of Mr. Naik, at the
Lodi, New Jersey address. Patil failed to appear for the hearing. The IJ entered an order
of removal in absentia on March 21, 2006.
Patil retained new counsel, and on June 29, 2006, filed a motion to reopen the
removal proceedings, claiming that he did not receive notice of the hearing. He submitted
a sworn affidavit attesting that he had moved away from Mr. Naik’s address and that
“[n]o notice was ever sent to the home of Paras Naik in Lodi, New Jersey.” See A.R. 24.
Patil also attested that his former counsel neither received notice of the hearing nor
informed Patil that he was required to provide an updated address to DHS. Id. Patil
1
The notice to appear indicated that the removal hearing would take place at a date
and time “to be set.” A.R. 113.
2
requested that the removal order be rescinded pursuant to INA § 240(b)(5)(C) [8 U.S.C.
§ 1229a(b)(5)(C)].
The IJ denied Patil’s motion. The IJ held that the court was not required to
provide notice to Patil’s current address, because Patil did not update his address with
DHS. Nor was the court required to provide notice to Patil’s former attorney, because the
attorney had withdrawn as counsel of record. The IJ also speculated that, because the
notice of hearing was not returned to the court as undeliverable mail, it may have been
forwarded to Patil’s current address. The IJ concluded that Patil’s affidavit stating that he
did not receive notice of the hearing was insufficient to overcome the presumption that
mail is delivered. The IJ also rejected Patil’s argument that the notice to appear was
required to be provided in Patil’s native language.
Patil appealed the IJ’s decision. In a May 28, 2008 decision, the BIA dismissed
the appeal. This petition for review followed.
II. Analysis
We will review the denial of Patil’s motion to reopen for abuse of discretion. See
Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001). Thus, to succeed on his petition for
review, Patil must show that the BIA’s decision was arbitrary, irrational, or contrary to
law. See Tipu v. INS,
20 F.3d 580, 582 (3d Cir. 1994).
The notice of hearing indicates that it was sent via regular mail to Patil, in care of
Mr. Naik, at the Lodi, New Jersey address. See A.R. 172. Patil admits that this is the last
address he provided to DHS. See INA § 239(c) [8 U.S.C. § 1229(c)] (“Service by mail
3
under this section shall be sufficient if there is proof of attempted delivery to the last
address provided by the alien. . . .”). Patil claims that, although he no longer resided with
Mr. Naik and failed to provide DHS with his current address, he continued to receive mail
at Mr. Naik’s address. Although the notice was not returned as undeliverable, Patil
claims he did not receive the notice of hearing. Patil claims that, in his motion to reopen,
he provided sufficient evidence of non-receipt, and as a result, he should be entitled to
rescission of the in absentia removal order for failure to receive notice.2 See INA
§ 240(b)(5)(C)(ii) [8 U.S.C. § 1229a(b)(5)(C)(ii)].
Ordinary mail that is properly sent is presumed to be received by the addressee.
Santana-Gonzalez v. Att’y Gen., 506 F.3d 274, 278 (3d Cir. 2007). However, an
individual may rebut that presumption by producing sufficient contrary evidence, such as
a sworn affidavit supported by circumstantial evidence corroborating the claim of non-
receipt. See
id. at 280. The BIA concluded that Patil failed to present evidence sufficient
to rebut the presumption of receipt.
Patil first contends that the BIA erroneously applied the stronger presumption of
effective service by certified mail, rather than the weaker presumption associated with
regular mail set forth in Santana-Gonzales. However, the BIA specifically enumerated
the weaker presumption associated with regular mail, and relied upon Santana-Gonzales
2
Although Patil also argues that his failure to appear should be excused due to
“exceptional circumstances” under INA § 240(b)(5)(C)(i) [8 U.S.C. § 1229a(b)(5)(C)(i)],
his arguments are limited to his alleged lack of notice and he does not describe any
exceptional circumstance as defined in INA § 240(e)(1) [8 U.S.C. § 1229a(e)(1)].
4
in assessing the sufficiency of Patil’s evidence in support of his motion to reopen. Thus,
it appears that the BIA applied the correct Santana-Gonzales presumption in Patil’s case.
However, in deciding a motion to reopen based on non-receipt of a hearing notice,
the BIA must consider all of the relevant evidence. See Matter of M-R-A-, 24 I&N Dec.
665, 674 (B.I.A. 2008). The BIA failed to do so in this case. The BIA’s decision did not
address Patil’s $5,000.00 bond payment, which demonstrates additional incentive for
Patil to attend his hearing. In addition, the BIA did not consider Patil’s diligence in
obtaining counsel and pursuing a remedy upon discovering that the in absentia order had
been entered. The BIA has indicated that this is a significant factor to be considered in
the determination of a motion to reopen based on non-receipt of a notice. See Matter of
M-R-A-, 21 I&N Dec. at 676 (“[W]e consider a significant factor to be the respondent’s
due diligence in promptly seeking to redress the situation by obtaining counsel and
requesting reopening of the proceedings.”). Because the BIA did not consider all of
Patil’s relevant evidence, we must conclude that it abused its discretion.3
Patil next contends that the BIA improperly engaged in factfinding when it stated
that it had been “asked to find by circumstantial evidence that Mr. Naik did not receive
the respondent’s notice of Hearing without direct evidence provided by Mr. Naik.” Patil
3
The BIA found that “[t]he respondent also does not have a history of prior
appearances.” Because Patil’s removal hearing was his first opportunity to appear, this
factor should not weigh either for or against Patil’s claim of non-receipt. See Matter of
M-R-A-, 24 I&N Dec. at 674 (IJ may consider previous attendance at immigration
hearings, “if applicable”).
5
argues that this “factfinding” is not only improper, but also irrelevant because the sole
issue is whether Patil received notice of his removal hearing.
First, the BIA’s acknowledgment that the record contains no direct evidence from
Mr. Naik does not indicate improper factfinding. Second, the issue is not irrelevant to
Patil’s claim that he did not receive the notice. Indeed, Patil raised the issue by attesting
– without direct evidence in support – that Mr. Naik did not receive the notice on Patil’s
behalf. See A.R. 24. Indeed, the BIA appears to be contemplating whether there was
sufficient circumstantial evidence to support Patil’s statement, particularly given the fact
that Patil provided no evidence of any recent exchanges with Mr. Naik concerning
collection of Patil’s mail. Third, the BIA did not, and we need not, reach the implicit
question raised by Patil’s statement that Mr. Naik did not receive the notice: whether,
where an individual has designated an agent to receive mail on his behalf, receipt of the
notice by the agent can be properly charged directly to the individual for notice purposes.
See In re G-Y-R-, 23 I&N Dec. 181, 189 (B.I.A. 2001) (“If, for example, the Notice to
Appear reaches the correct address but does not reach the alien through some failure in
the internal workings of the household, the alien can be charged with receiving proper
notice, and proper service will have been effected.”).
Finally, Patil vaguely claims that the denial of his motion to reopen was so
arbitrary and capricious as to violate his Fifth Amendment right to due process.
Generally, constitutional claims are beyond the BIA’s jurisdiction and not subject to the
exhaustion requirement. Bonhometre v. Gonzales, 414 F.3d 442, 448 n.7 (3d Cir. 2005).
6
However, there is an exception for claims that could have been corrected by the BIA.
Khan v. Att’y Gen., 448 F.3d 226, 236 n.8 (3d Cir. 2006). Here, Patil contends that the
IJ’s allegedly arbitrary and capricious denial of his motion to reopen amounted to a
violation of his right to due process of law. This is a “claim of procedural error that could
have been addressed by the BIA on appeal.”
Id. Patil failed to exhaust his due process
claim because he did not raise it in his appeal to the BIA. We are therefore precluded
from reviewing it. INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)].
III. Conclusion
Because we have concluded that the BIA abused its discretion by failing to
consider the totality of the evidence supporting Patil’s claim that he did not receive notice
of his removal hearing, we will grant the petition for review and remand this matter to the
BIA for further proceedings consistent with this opinion.
7
