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Keywords

hearingaffidavitmotiondomestic violence
hearingaffidavitmotiondomestic violence

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Kozak v. Gonzales

Facts

Kozak, a Russian national, was admitted to the U.S. as a refugee in 1992. After being convicted of two domestic violence crimes, he was served a Notice to Appear by ICE, which did not set a hearing date. A notice was later sent by regular mail, informing him of a hearing on July 5, 2006, which he claims he did not receive. Consequently, an IJ entered an in absentia order of removal against him after he failed to appear. Following his detention, Kozak filed a motion to reopen his case, asserting non-receipt of the notice, which was denied by the IJ and affirmed by the BIA.

Kozak, a Russian national, was admitted to this country in 1992 as a refugee. However, after convictions for two crimes of domestic violence, Kozak was subject to removal pursuant to 8 U.S.C. 1227(a)(2)(E)(i) ('Any alien who at any time after admission is convicted of a crime of domestic violence . . . is deportable.'). On July 7, 2005, Immigration and Customs Enforcement ('ICE') personally served Kozak with a Notice to Appear. The Notice to Appear did not set a date for Kozak's hearing, but rather ordered him to appear 'on a date to be set[,] at a time to be set.' On January 20, 2006, ICE sent Kozak a notice stating that his hearing was set for July 5, 2006, at 9:30 A.M. Rather than personally serving Kozak with this notice, ICE elected to send it to him by regular mail. Kozak claims that he did not receive the notice at his residence, and that as a result, he never appeared for the hearing. Because Kozak failed to appear, and because ICE presented evidence that Kozak was subject to removal, the IJ entered an in absentia order of removal against him on July 7, 2006.

Issue

Did the BIA err in denying Kozak's motion to reopen his immigration proceedings based on his claim of non-receipt of the hearing notice?

Did the BIA err in denying Kozak's motion to reopen his immigration proceedings based on his claim of non-receipt of the hearing notice?

Rule

An alien who fails to appear for an immigration hearing may have an order of removal entered against him in absentia, but if he can prove non-receipt of the notice, he may request to have the proceedings reopened.

An alien who fails to appear for an immigration hearing is subject to having an order of removal entered against him in absentia. 8 U.S.C. 1229a(b)(5)(A). However, if the alien can later prove that he did not receive notice of the hearing, he may ask for the immigration proceedings to be reopened. Id. 1229a(b)(5)(C)(ii).

Analysis

The court determined that the BIA applied an inappropriate legal standard in assessing whether Kozak received his hearing notice. The BIA required 'substantial and probative evidence' to overcome the presumption of proper delivery, which the court found unworkable for notices sent by regular mail. The court noted that an affidavit of non-receipt raises a factual issue that the BIA must resolve, and the BIA's dismissal of Kozak's affidavit was improper.

Ultimately, it is enough that the BIA applied an inappropriate legal standard in determining whether or not Kozak had received his hearing notice. As the Second Circuit noted in Lopes, 'although an affidavit of non-receipt might be insufficient by itself to rebut the presumption [of receipt], it does raise a factual issue that the BIA must resolve.' 468 F.3d at 85-86. Here, the opinion of the BIA and the IJ clearly indicate that they disregarded Kozak's affidavit because it was not accompanied by the 'substantial and probative evidence' referred to in Grijalva.

Conclusion

The appellate court granted Kozak's petition for review, vacated the BIA's order, and remanded the case for further consideration, emphasizing the need for a new standard regarding non-receipt claims.

The appellate court granted Kozak's petition for review, vacated the BIA's order, and remanded the case for further consideration, emphasizing the need for a new standard regarding non-receipt claims.

Who won?

Kozak prevailed in the case because the court found that the BIA abused its discretion by applying an inappropriate legal standard regarding the notice of hearing.

Kozak prevailed in the case because the court found that the BIA abused its discretion by applying an inappropriate legal standard regarding the notice of hearing.

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