Settim v. Gonzales

*Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and
is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
March 15, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 05-60081
__________________________
JOAN JEPKIRUI SETTIM,
Petitioner,
versus
ALBERTO R GONZALES, U S ATTORNEY GENERAL,
Respondent.
___________________________________________________
Petition for Review
from the Board of Immigration Appeals
A 78-569-649
___________________________________________________
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
Petitioner Settim was ordered removed in absentia on April 6, 2004. Settim filed a motion
to reopen, claiming that she did not receive a Notice of Hearing. The Board of Immigration Appeals
(“BIA”) adopted and affirmed the decision of the Immigration Judge (“IJ”) denying the motion. For
the reasons that follow, we grant the petition for review and remand for further consideration.
I. FACTS AND PROCEEDINGS
Settim is a native of Kenya who overstayed her nonimmigrant visa in violation of Immigration

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1The Notice to Appear did not include the date of the proceedings.
2Settim points out that there is a discrepancy between the zip code where the Notice to Appear and
the notice of default judgment were sent—77075—and the proper one—77074. It is not clear from
the record who is at fault for this error. Only Settim’s application for adjustment of status contains
the erroneous zip code, and that form appears to have been completed by her attorney. Settim’s
other paperwork with the INS that is in the record, including the Petition for Alien Relative, the
Notice of Action, the Privacy Act Request, and a letter addressed to her from the Department of
Justice, all contain the proper zip code.
2
and Nationality Act § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). The BIA ordered Settim removed
in absentia. When she received notice of the default judgment, Settim filed a motion to reopen. She
claims that she did not receive a Notice of Hearing, and both she and her citizen husband submitted
affidavits to this effect. Settim does admit that she received the Notice to Appear1 and a copy of the
default judgment, both sent to the same address as the Notice of Hearing.2 All correspondence was
sent via regular mail by the U.S. Postal Service. Settim urges that she had no intention of failing to
attend her proceedings, since she is married to a U.S. citizen and has applied for adjustment of status.
On appeal, Settim argues that the BIA erred in denying her motion to reopen. This court reviews the
denial of a motion to reopen for abuse of discretion. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.
2005).
II. DISCUSSION
In Maknojiya v. Gonzales, 432 F.3d 588, 590 (5th Cir. 2005), this court held that it was an
abuse of discretion for the IJ to deny the petitioner’s motion to reopen where a hearing notification
change was sent by regular mail and where the petitioner and his attorney submitted affidavits
asserting that they received no notice of the change. Joining other circuits that have addressed this
issue, the Maknojiya court distinguished mailings involving regular mailfromthose involving certified

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3In non-immigration contexts, there is a presumption that a letter will reach its destination, when
properly directed and placed in a U.S. post office mail receptacle. See Beck v. Somerset
Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989).
3
mail in the context of 8 U.S.C. § 1229(a)(1).3 Id. at 589. Under this statutory provision, only where
the mailing is through certified mail does a strong presumption of effective service arise. Id. (citing
Matter of Grijalva, 21 I. & N. Dec. 27 (BIA 1995)). Where the correspondence is sent by regular
mail, and where there is no other evidence that the petitioner was attempting to avoid the
proceedings, the petitioner’s statement that he or she did not receive the correspondence is sufficient
evidence that mail delivery failed. Id. at 590.
In denying Settim’s motion to reopen, the BIA relied on Grijalva for the proposition that
there is a strong presumption of effective service when correspondence is sent by certified mail.
However, the BIA’s reliance on Grijalva was improper because, in Settim’s case, the correspondence
was sent by regular mail, not certified mail. See Maknojiya, 432 F.3d at 589. Also, Settim and her
husband submitted affidavits that Settim did not receive the Notice of Hearing. Under Maknojiya,
these affidavits are sufficient to establish that mail delivery failed, in the absence of other evidence that
she was attempting to evade the proceedings. As a result, the BIA abused its discretion in denying
Settim’s motion to reopen.
IV. CONCLUSION
We GRANT the petition for review and REMAND for further consideration consistent with
this opinion.

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