BIA: Service of NTA by Certified Mail on Correct Address Is Adequate, Even If Returned As "Unclaimed" (Matter of M-D-)

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

BIA: SERVICE OF NTA BY CERTIFIED MAIL ON CORRECT ADDRESS IS ADEQUATE, EVEN IF RETURNED AS "UNCLAIMED" (MATTER OF M-D-)
Immigrants' Rights Update, Vol. 17, No. 1, February 21, 2003

The Board of Immigration Appeals has issued a precedent decision finding that an attempted delivery of a Notice to Appear (NTA) by certified mail to a respondent's correct address constitutes adequate service despite the fact that the mailing was returned as "unclaimed." In so doing, the BIA rejected the respondent's contention that because first class mail is more reliable than certified mail, the immigration court should have used the former in serving the documents. The decision distinguishes the BIA's decision in Matter of G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001), on the basis that in this case there is no dispute that the NTA was mailed to the correct address.

The respondent in this case is a native of Guinea who entered the U.S. without inspection in Feb. 2000, and applied for asylum in Nov. 2000. Eight days after the application was filed, an asylum officer referred the application to the immigration court. An NTA and notice of hearing were then mailed by certified mail to the address provided on the asylum application. According to postal records, two attempts were made to deliver the certified mail, and on each occasion a notice was left at the address indicating that the post office was holding mail for the respondent. When no one claimed the envelope, it was returned marked "unclaimed."

The respondent failed to appear for the hearing, and the immigration judge thereupon entered an in absentia order of removal. Subsequently, the respondent filed a motion to reopen, seeking to apply for asylum and asserting that he had checked the mail every day but did not receive any notice of hearing. The IJ denied the motion, finding that service of the NTA and notice of hearing was proper. The respondent appealed.

On appeal, the BIA upheld the denial of the motion to reopen. The BIA rejected the respondent's contention that first class mail delivery is more reliable than certified mail, noting that certified mail has been used by the Immigration and Naturalization Service and the immigration courts for many years. Moreover, in this case there was no evidence that the respondent had not received the postal notices stating that a certified mailing was being held for him at the post office. The BIA concluded that it was not reasonable "to allow the respondent to defeat service by neglecting or refusing to collect his mail."

As previously noted, the BIA distinguished its decision in Matter of G-Y-R- on the basis that in this case there was no claim that the NTA and notice of hearing were mailed to an incorrect address. In G-Y-R-, the NTA was mailed to the address that the respondent had provided on an asylum application. However, the respondent had moved to a new address after filing the application, without having received notice from the immigration court of the obligation to inform the court of any change of address (for more on G-Y-R-, see "BIA: In Absentia Removal Order May Not Be Entered Where the Record Reflects That Respondent Did Not Receive Mailed NTA," Immigrants' Rights Update, Nov. 16, 2001, p. 7).

Matter of M-D-, 23 I. & N. Dec. 540, Int. Dec. 3485 (BIA Dec. 18, 2002).