On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A077-821-065.
The opinion of the court was delivered by: Berzon, Circuit Judge
Argued and Submitted December 11, 2008 -- San Francisco, California.
Before: A. Wallace Tashima, Marsha S. Berzon and N. Randy Smith, Circuit Judges.
Hani Abdulmalek Al Mutarreb, a native and citizen of Yemen, was ordered removed in absentia and moved to reopen his proceedings. The immigration judge ("IJ") denied his motion to reopen, and the Board of Immigration Appeals ("BIA") affirmed the IJ's denial. Al Mutarreb petitions for review. He maintains that he did not receive notice of the pendency of proceedings in accordance with 8 U.S.C. § 1229(a)(1)(F), and argues that his motion to reopen should have been granted for that reason. Al Mutarreb also submits that the agency's finding of removability was either procedurally improper, or unsupported by substantial evidence. We reach only the latter contention. Because the record contains no evidence relevant to the charge of removability, we grant the petition for review and remand to the BIA with instructions to vacate the removal order.
I. FACTS AND PROCEDURAL HISTORY
Al Mutarreb was admitted to the United States on August 25, 1998, on an F-1 (student) visa. His visa allowed him to remain in the United States until August 20, 1999, for the purpose of studying at Contra Costa Community College in San Pablo, California.
In August or September of 1999, Al Mutarreb submitted an asylum application to the former Immigration and Naturalization Service,*fn1 stating that he feared persecution if he returned to Yemen. After an interview with an asylum officer in October 1999, Al Mutarreb received a Notice of Intent to Deny his application and submitted a rebuttal to the Notice, but received no response from the Service. A year and a half later, on April 3, 2001, the Service commenced removal proceedings against Al Mutarreb by issuing a Notice to Appear ("NTA"). The NTA charged that Al Mutarreb was removable under 8 U.S.C. § 1227(a)(1)(C)(i) ("Nonimmigrant status violators") because he had not attended Contra Costa Community College "from August 20, 1999 to Present," and so failed to comply with the terms of his F-1 status. The NTA directed Al Mutarreb to appear in Immigration Court for a removal hearing on May 9, 2001.
It is undisputed that Al Mutarreb did not receive the NTA. The Service sent the NTA via certified mail to a P.O. Box address that Al Mutarreb had provided in a previous filing, but the envelope was returned to the Service on May 4, 2001, bearing the stamp "unclaimed." The Service did not attempt to re-send the NTA to Al Mutarreb's street address (which Al Mutarreb had also provided in the same previous filing). Nor did the Service send a copy of the NTA to Al Mutarreb's counsel of record, Elias Shamieh, as Al Mutarreb argues the regulations require it to do. See 8 C.F.R. § 292.5(a) ("Whenever a person is required by any of the provisions of this chapter to . . . be given notice . . . such notice . . . shall be given . . . to . . . the attorney or representative of record, or the person himself if unrepresented.").
Because neither Al Mutarreb nor his representative received the NTA, neither was aware of the pendency of removal proceedings or the date of the hearing. Not surprisingly, neither Al Mutarreb nor his attorney appeared in Immigration Court on May 9, 2001. The Service thereupon asked the IJ to proceed with the removal hearing in absentia, pursuant to 8 U.S.C. § 1229a(b)(5)(A). The IJ did so. There is no transcript of the proceedings. At the close of the proceedings, the IJ signed a computer-generated order directing that Al Mutarreb be removed to Yemen "on the charge contained in the Notice to Appear." Notably, the IJ failed to check either of the two boxes on the computer-generated order that would indicate whether her finding of removability was supported by "the respondent['s] admi[ssion of] the factual allegations" at a prior hearing, or "documentary evidence [submitted by the Service] . . . which established the truth of the factual allegations."
The Immigration Court sent a copy of the removal order to Al Mutarreb. The record does not indicate which address or method of mailing the Service used this time, but it is clear that the removal order, unlike the NTA, did reach Al Mutarreb. Shortly after receiving the removal order, Al Mutarreb filed a motion to reopen with the Immigration Court, which the IJ denied.*fn2
Appealing the denial of his motion to reopen to the BIA, Al Mutarreb conceded that the Service had mailed his NTA to his current P.O. Box address, but argued that the Service's attempt at notice did not meet the requirements of the Immigration and Nationality Act ("INA") § 239(a)(1)(F), codified at 8 U.S.C. § 1229(a)(1)(F), and that the IJ was therefore without authority to conduct proceedings in absentia.*fn3 The BIA rejected Al Mutarreb's argument, holding that the Service's attempt at notice was statutorily sufficient and that reopening was therefore not merited.
Al Mutarreb filed a petition for review with this Court. Before argument, the parties stipulated to a remand "for the sole and limited purpose of considering the issue of Petition-er's [remov]ability." We granted the joint motion and remanded to the BIA. Al ...