Juan Jaime Franco v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 29, 2018
• Docket: 15-71484
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN MANUEL JAIME FRANCO, No. 15-71484

Petitioner, Agency No. A076-378-250

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted April 12, 2018 Pasadena, California

Before: SCHROEDER and M. SMITH, Circuit Judges, and CHEN,** District Judge.

Petitioner was ordered removed in absentia. His motion to reopen, asserting

he did not receive notice of the hearing, was denied by the Immigration Judge

(“IJ”) and the Board of Immigration Appeals (“BIA”). We grant the petition for

review and remand for an evidentiary hearing.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. In September 1997, an asylum application was filed for Franco. According

to Franco’s declaration, the application was filed without Franco’s knowledge or

permission by a notary named Edward Lopez. Franco mistakenly believed that

Lopez was an attorney who could help him obtain a work permit. Franco asserts

the Los Angeles address on the application was actually Lopez’s business address,

not Franco’s residence. He now concedes (after declaring to the contrary) that he

signed the application, though he claims he did not know he was signing an asylum

application.

In January 1998, legacy INS sent Franco a Notice to Appear (“NTA”) by

certified mail, ordering him to appear before an IJ in March 1998. The return

receipt shows that the NTA was delivered to the Los Angeles address. The

recipient’s name is not noted on the receipt, and the recipient’s signature is not

Franco’s. Franco states that he did not receive the NTA and that Lopez never

informed him of the NTA. Franco did not appear for his hearing. He was ordered

removed in absentia. He was arrested and removed in November 1998.

In January 2014, Franco moved to reopen and rescind the removal order

based on lack of notice. The IJ denied the motion, and the BIA affirmed. The

BIA’s decision was based on the following: (1) Franco failed to show that he did

not receive the NTA, and the IJ reasonably doubted the veracity of Franco’s

declaration stating otherwise; (2) Franco could be charged with receipt of the NTA,

2 15-71484 because it was sent to the Los Angeles address listed on the asylum application and

the mail was signed as received; (3) Franco failed to rebut certified mail’s

presumption of proper service, because he presented no evidence that delivery was

improper or not attempted; and (4) to the extent the motion was based on

exceptional circumstances, it was untimely. Franco timely appealed.

1. As to actual notice, we review the IJ’s reasoning which was adopted

by the BIA. See Siong v. INS, 376 F.3d 1030, 1036 (9th Cir. 2004). The IJ erred

in refusing to credit Franco’s declaration that he did not receive the NTA. The IJ

cannot discredit a declaration on a motion to reopen simply because it is “self-

serving” or “unsupported.” Bhasin v. Gonzales, 423 F.3d 977, 986-87 (9th Cir.

2005). “We have long held that credibility determinations on motions to reopen

are inappropriate.” Id. at 986 (citing Ghadessi v. INS, 797 F.2d 804, 806 (9th Cir.

1986)). Instead, “facts presented in affidavits supporting a motion to reopen must

be accepted as true unless inherently unbelievable.” Id. at 987 (citing Limsico v.

INS, 951 F.2d 210, 213 (9th Cir. 1991)). Franco’s denial of actual notice was not

inherently unbelievable. Victimization of immigrants by notaries is not

uncommon. See, e.g., Lopez v. INS, 184 F.3d 1097, 1098-99 (9th Cir. 1999);

Garcia v. Gonzales, 179 F. App’x 417, 418 (9th Cir. 2006). Moreover, the NTA

was sent to a business address, not Lopez’s residence, and the signature on the

return receipt is clearly not Franco’s. Franco’s admission that he signed the

3 15-71484 asylum application (after first declaring to the contrary) does not render his entire

declaration inherently unbelievable. See Shouchen Yang v. Lynch, 822 F.3d 504,

508 (9th Cir. 2016).

2. As to constructive notice, the BIA erred in holding that Franco could

be charged with receipt of the NTA because the NTA was mailed to the address

listed on the asylum application. The presumption of delivery of regular mail and

certified mail “presume[s] that postal officers properly discharge their duties.”

Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002). The presumption of delivery to

the specified address does not include a presumption that the address is correct.

See Singh v. Gonzales, 412 F.3d 1117, 1122 (9th Cir. 2005) (although NTA was

mailed to alien’s former address, he could not be charged with constructive notice,

because he had not been instructed to keep his address updated nor informed of the

removal consequences of failing to do so). That the address was provided in the

asylum application does not establish constructive notice. See id. at 1122 (alien

could not be charged with constructive notice of NTA mailed to his former

address, even though he had provided the address in an asylum application); cf. In

re G-Y-R-, 23 I. & N. Dec. 181, 190 (B.I.A. 2001) (alien’s failure to report his

change of address under alien-registration requirements of “section 265 and its

surrounding provisions may incur various penalties, [but] the entry of an in

absentia order of removal is not one of them”).

4 15-71484 3. No relevant statutory presumption applies. Under both 8 U.S.C.

§§ 1229a(b)(5)(A) and 1229(c), written notice is sufficient when sent to an

(a)(1)(F) address, but an (a)(1)(F) address is one requested by the NTA itself. See

§ 1229(a)(1); Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (“[W]hen a respondent is

served with a Notice to Appear, it specifically informs him of the affirmative duty

under section 239(a)(1)(F) of the Act to update his address with the DHS in writing

. . . .”). An initial NTA cannot, by definition, be sent to an (a)(1)(F) address. See

Singh, 412 F.3d at 1121-22 (presumption supplied by § 1229a(b)(5)(A) did not

apply because the alien never received the NTA); In re G-Y-R-, 23 I. & N. Dec. at

187 (“[T]he alien must receive the Notice to Appear before he or she can ‘provide’

an address in accordance with section 239(a)(1)(F) of the Act.”); cf. Chaidez v.

Gonzales, 486 F.3d 1079, 1081, 1084 (9th Cir. 2007) (higher standard for showing

alien’s receipt of initial charging documents in deportation proceedings was

justified, because aliens lack notice that they will receive initial documents at a

particular address, unlike later-sent notices).

4. As to the BIA’s holding that Franco’s assertion of exceptional

circumstances as an independent basis for the motion to reopen was untimely,

Franco declined to pursue that claim on appeal. He therefore waived any challenge

to the untimeliness determination.

For the foregoing reasons, we GRANT the petition for review and

5 15-71484 REMAND to the BIA with instructions to remand to the IJ in order to hold an

evidentiary hearing so that the bona fides of Franco’s claim of lack of actual notice

and related issues may be determined.

6 15-71484