9th Circuit Overturns BIA Denial Of Motion To Reopen In Absentia Order Based On Notice Mailed To Wrong Zip Code

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

9TH CIRCUIT OVERTURNS BIA DENIAL OF MOTION TO REOPEN IN ABSENTIA ORDER BASED ON NOTICE MAILED TO WRONG ZIP CODE
Immigrants' Rights Update, Vol.17, No. 4, July 15, 2003

The U.S. Court of Appeals for the Ninth Circuit has ruled that the Board of Immigration Appeals erred by refusing to grant a motion to reopen an in absentia order. In denying the motion to reopen, the BIA relied on the presumption that mail that was properly addressed reached its destination. The court found that this presumption does not apply if the mail was addressed to the proper street address but the zip code was incorrect.

The respondents in this case had provided both a post office address and a street address to the Immigration and Naturalization Service when they applied for asylum. The INS subsequently denied the asylum applications and initiated removal proceedings. Notice of the removal hearing was mailed to the street address that the respondents had provided, but with an incorrect zip code. Subsequently, the respondents failed to appear for their hearing and were ordered removed in absentia. They later filed a motion to reopen the in absentia hearing based on lack of notice of the hearing. The immigration judge denied the motion, and the BIA upheld the denial, relying on the rebuttable presumption that mail that was properly addressed reached its destination. The petitioners then filed a petition for review of the BIA’s ruling.

The court found that the presumption is not applicable if the mailed notice was addressed to an incorrect zip code. Rather, the presumption applies only where the government provides proof that notice “(1) was properly addressed; (2) had sufficient postage; and (3) was properly deposited in the mails.” Accordingly, the court granted the petition for review.

Busquets-Ivars v. Ashcroft, No. 02-70643 (9th Cir. June 24, 2003).