United States Court of Appeals For the Seventh Circuit
Immigration – removal — notice
Where an alien did not receive a notice of removal, she is entitled to an evidentiary hearing on whether she evaded service.
“Smykiene concedes that proper notice was sent; the government agrees that it was not received; so the only question is whether she evaded receipt. Once nonreceipt is attested in an affidavit and there is no conclusive evidence of evasion, the alien is entitled to an evidentiary hearing. Dakaj v. Holder, 580 F.3d 479, 482-83 (7th Cir. 2009) (per curiam); Joshi v. Ashcroft, supra, 389 F.3d at 735; Kozak v. Gonzales, 502 F.3d 34, 37-38 (1st Cir. 2007); Nibagwire v. Gonzales, 450 F.3d 153, 157-58 (4th Cir. 2006); Ghounem v. Ashcroft, 378 F.3d 740, 744-45 (8th Cir. 2004); Salta v. INS, 314 F.3d 1076, 1079-80 (9th Cir. 2002). We needn’t decide who has the burden of persuasion if an issue of evasion is raised in the evidentiary hearing. The Board said in In re Grijalva, 21 I&N Dec. 27, 37 (BIA 1995), that given the ‘presumption of effective service’ (that is, that mail is usually delivered), the alien ‘must present substantial and probative evidence such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence demonstrating that there was improper delivery or that nondelivery was not due to the respondent’s failure to provide an address where he could receive mail.’ But this standard, which substitutes a failure, even if completely innocent, to provide a correct address for evasion (in the sense of an intentional or reckless avoidance of receipt) as a ground for waiver of the right to a hearing, is not alluded to in the Board’s or immigration judge’s opinions in the present case; and anyway Smykiene hasn’t been given a hearing at which to present evidence that might meet the standard of the Grijalva case.”
Petitions to Review Orders of the Board of Immigration Appeals, Posner, J.