Third Circuit disposition — 06-2866

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 06-2866
__________
AVNI JAHJAGA,
Petitioner,
vs.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
__________
On Petition for Review of an Order of
the Board of Immigration Appeals
U.S. Department of Justice
(BIA No. A79 453 765)
Immigration Judge: Eugene Pugliese
__________
No. 06-3466
__________
GOCE GJEROSKI,
Petitioner,
vs.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
__________
On Petition for Review of an Order of
the Board of Immigration Appeals
U.S. Department of Justice

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(BIA No. A96 074 676)
Immigration Judge: Eugene Pugliese
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 28, 2007
Before: BARRY, FUENTES, and GARTH, Circuit Judges.
(Opinion Filed: January 4, 2008)
__________
OPINION
__________
Garth, Circuit Judge:
The appeals which we review here involve two fundamental
issues: (1) do we have jurisdiction to review the Board of
Immigration Appeals’ (“BIA”) denial of a motion to reissue its
decision; and (2) what is the effect of an alien’s claim that the
BIA’s decision, which was purportedly mailed to the last address
of record, was never received by the alien. We have yet to decide
these issues, which affect the ability of an alien to seek legal
redress before being deported from this country. We will grant the
petitions and remand both cases to the BIA with instructions
consistent with our ruling today.
I.
A.
Petitioner Anvi Jahjaga (“Jahjaga”) is a citizen of Kosovo
who claimed political persecution. After an Immigration Judge
(“IJ”) denied his applications for asylum, withholding of removal,
and relief under the Convention Against Torture, he appealed to the
BIA. On February 22, 2005, the BIA affirmed the IJ’s decision.
Jahjaga then filed a motion to reopen his proceeding, which the
BIA denied on August 17, 2005. Jahjaga contends that neither he,
nor his attorney, received the BIA’s August 17 decision until it was

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mailed to his counsel on November 1, 2005. Jahjaga accordingly
argues that his motion to reconsider, which was filed with the BIA
on November 30, is timely because it was filed within 30 days of
the date of the order’s mailing on November 1. See 8 C.F.R. §
1003.2(b)(2). As a result of actions taken by Jahjaga’s counsel in
writing to the BIA in September and responding to the BIA’s
October order denying reissuance, we assume without deciding that
the motion was timely.
On May 1, 2006, the BIA denied Jahjaga’s motion to
reconsider. The BIA held that the motion was untimely as Jahjaga
failed to file it within thirty days of August 17, 2005. Jahjaga then
petitioned this Court for review.
B.
Petitioner Goce Gjeroski (“Gjeroski”) is a native of
Macedonia and essentially claimed that his coerced military service
by Macedonia qualified him for relief. An IJ denied his
applications for asylum, withholding of removal, and protection
under the Convention Against Torture on September 7, 2004. The
BIA affirmed the IJ on December 28, 2005. As in Jahjaga’s case,
the Government claims the BIA mailed the decision by regular mail
to Gjeroski’s counsel at the address on record. Gjeroski’s counsel
claims he never received the decision.
Gjeroski contends he only learned of the BIA’s decision
after receiving a Notice to Surrender for removal on May 16, 2006.
Gjeroski then filed a motion asking the BIA to reissue the
December 28, 2005 decision so he could file a timely petition with
this Court for review. The BIA denied this motion on June 20,
2006. In its opinion, the BIA essentially provided the same reasons
as it expressed in Jahjaga’s case for denying Jahjaga’s motion,
stating: “the decision was mailed to the address provided by
counsel on a Notice of Entry of Appearance before the Board” and
that “there is no error attributable to the Board in the service of its
decision to counsel.”
C.
Because both appeals require us to address the same two
questions of our jurisdiction and the alien’s failure to receive the
BIA’s decision ordering removal, on November 16, 2007, we

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consolidated Jahjaga’s and Gjeroski’s petitions for the purpose of
disposition.
II.
We first address our jurisdiction to review the BIA’s denial
of petitioners’ motions to reissue. The Government argued initially
that the denial of a motion to reissue a decision of the BIA is not a
final order over which we have jurisdiction. However, Congress
granted federal courts the ability to review a “final order of
removal,” subject to certain exceptions. See 8 U.S.C. § 1252(a)(1),
(2). We treat a motion to reissue as a motion to reopen. See
Tobeth-Tangang v. Gonzales, 440 F.3d 537, 539 n.2 (1st Cir.
2006); Singh v. Gonzales, 469 F.3d 863, 865 n.4 (9th Cir. 2006).
The denial of a motion to reopen is itself a final order of removal.
See Cruz v. Att’y Gen., 452 F.3d 240, 246 (3d Cir. 2006).
Therefore, we have jurisdiction to review a denial of a motion to
reissue a BIA opinion as long as none of the exceptions apply – as
none does here.
Moreover, the Government also argued that the jurisdiction-
stripping provision of 8 U.S.C. § 1252(a)(2)(B)(ii) deprived us of
the ability to review the BIA’s decisions because they were
discretionary, and thus barred judicial review. This provision
provides that:
[N]o court shall have jurisdiction to review ... any
other decision or action of the Attorney General or
the Secretary of Homeland Security the authority for
which is specified under this subchapter to be in the
discretion of the Attorney General or the Secretary of
Homeland Security.
8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added).
The operative phrase here is “specified under this
subchapter.” We previously held that the exceptions are
enumerated in the relevant statutes, 8 U.S.C. §§ 1151-1378. Kahn
v. Att’y Gen., 448 F.3d 226, 230 (3d Cir. 2006); Urena-Tavarez v.
Ashcroft, 367 F.3d 154, 158 (3d Cir. 2004). Motions to reissue are
not listed under this subchapter.
We have held in Kahn that, in the absence of statutory
authority prescribing the BIA’s discretionary power, there is a

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Prior to argument of these two appeals, we had asked counsel1
for the Government and the parties to address the questions of
jurisdiction and reissuance of notices. As to jurisdiction, the
Government withdrew its earlier argument that we could not
review the BIA’s decision because of its discretionary nature,
conceded that we possess jurisdiction to review the issues on these
appeals, and agreed that we could review the BIA’s decision for
abuse of discretion. The Government also conceded that we could
review any due process issues raised by petitioners. While we need
not address whether petitioners’ due process rights are implicated
in these proceedings, we do note that this Court has the ability to
review due process issues raised in a Petition for Review. See 8
U.S.C. § 1252(a)(2)(D) (providing that this Court retains
jurisdiction over “constitutional claims or questions of law.”);
Papageorgiou v. Gonzales, 413 F.3d 356, 358-59 (3d Cir. 2005); cf.
Cabrera-Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir. 2006) (“The
Fifth Amendment’s due process protections apply to aliens in
removal proceedings.”) (citing Reno v. Flores, 507 U.S. 292, 306
(1993)).
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strong presumption in favor of judicial review of the administrative
action. Kahn, 448 F.3d at 232 (citations omitted). Kahn held that
where no statute authorized a denial of a continuance, no
jurisdictional bar was effective. See id. Accordingly, we
concluded in Kahn that a statute had to provide discretionary
authority to the BIA before our jurisdiction was barred. Id. at 232-
33. This was the same conclusion reached by the Second, Fifth,
Ninth, and Eleventh Circuit Courts of Appeals. Because no statute
provides that motions to reissue are solely within the BIA’s
discretion, we possess jurisdiction to review their denial for abuse
of discretion. See id. at 233.
Under the abuse of discretion standard of review, we will
not disturb the BIA’s decision unless it was “arbitrary, irrational,
or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.
2004) (citations and quotations omitted). The Government in its
supplemental memorandum agrees that the BIA’s denial of1
reissuance may be reviewed by us for abuse of discretion, citing
Sevoian v. Ashcroft, 290 F.3d 166, 174-77 (3d Cir. 2002). We are
satisfied that the BIA’s denials of the motions to reissue its August

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17, 2005 decision (Jahjaga) and its December 28, 2005 decision
(Gjeroski) were not proper exercises of its discretion, as they were
contrary to law.
III.
Our concern with the issue of whether an alien subject to
deportation has received the reasons for the BIA’s action in the
form of an opinion, stems from the recognition that a deportation
order may tear an alien from his home and family and may deprive
him of “all that makes life worth living.” Ng Fung Ho v. White,
259 U.S. 276, 284 (1922) (Brandeis, J.). If the reasons for the
BIA’s action in ordering removal are not known to the alien
because the BIA failed to properly serve its opinion, the
consequences to the alien may be as drastic as Justice Brandeis
reasoned. Hence we focus on the answer to the fundamental
question: what should we do if the alien claims he did not receive
the BIA’s opinion informing him of the reason he is being
removed? To answer this question, we refer to the operative
regulations and the cases interpreting them.
A.
Federal regulations require the BIA to serve its final
decision on an alien, 8 C.F.R. § 1003.1(f), or the alien’s attorney of
record, 8 C.F.R. § 1292.5(a). The regulations define “service” as
either “physically presenting or mailing a document to the
appropriate party or parties.” 8 C.F.R. § 1003.13. Although we
have considered the issue in the context of a failure to receive a
notice of hearing, see Santana Gonzalez v. Attorney General, 506
F.3d 274 (3d Cir. 2007), we have never addressed the effect of an
alien’s claim that the BIA’s decision of removal was not received
by him. Two Circuit Courts of Appeals, taking slightly different
approaches, have addressed the issues we write on today.
In Singh v. Gonzales, 494 F.3d 1170 (9th Cir. 2007), the
petitioner claimed he never received a BIA decision ordering his
removal. After learning about the decision, he filed a motion to
reissue the decision to allow him to file a timely Petition for
Review. Singh attached an affidavit to his motion that he never
received the decision. The BIA denied Singh’s motion, relying on
essentially the same reasoning as in the instant consolidated

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Specifically, the BIA in Singh held:2
The respondent has filed a motion to reissue the
Board’s October 7, 2003, decision. The motion is
denied, as the record reflects that the respondent’s
decision was correctly mailed to the respondent’s
attorney of record.
Singh, 494 F.3d at 1172.
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appeals. Singh’s petition followed.2
The Ninth Circuit Court of Appeals looked to the BIA’s
reasoning for denying Singh’s motion for reissuance and held that
it “provided no explanation of how it reached [its] conclusion” that
it properly mailed the decision, nor did it address Singh’s affidavit
claiming non-receipt. Id. at 1172. The Ninth Circuit also noted the
presence of a transmittal cover letter in the administrative record.
On this point, the Ninth Circuit stated:
Although we have previously held that a properly
addressed cover letter creates a presumption of
mailing on the date of the cover letter ... we have
never held that such a presumption cannot be rebutted
by affidavits of nonreceipt by both a petitioner and
his counsel of record.... Because the only evidence
regarding mailing petitioners would have is
information about their own nonreceipt of the
decision ... a petitioner’s sworn affidavit –
particularly if reinforced by affidavit of counsel, as
here – [is] sufficient to rebut the presumption of
mailing and requir[e] the BIA to look beyond the
cover letter.
Id. (internal citations and quotations omitted). Moreover, because
the BIA never addressed Singh’s affidavits in the first instance, the
Ninth Circuit remanded to the BIA:
Without the benefit of the BIA’s articulated
reasoning on these issues, we decline to decide in the
first instance the weight and consequences of Singh’s
and his counsel’s sworn affidavits of nonreceipt, and

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Lest there be confusion as to the deadline for filing motions to3
reopen and/or to review final orders of removal, we note that a
motion to reopen a final order of removal must be filed within
ninety days of the removal order, subject to certain exceptions not
here applicable. 8 U.S.C. § 1229a(c)(7)(C)(i). Review of a denial
of a timely motion to reopen must be filed within thirty days of the
denial, which constitutes the final order of removal. 8 U.S.C. §
1252(b)(1).
remand to the BIA to do so. See INS v. Ventura, 537
U.S. 12, 17 (2002) (per curiam). It would be helpful
to the court if on remand the BIA would specifically
address what procedures or processes exist to assure
that petitioners are notified of the BIA’s decisions,
including assuring that decisions are actually mailed,
and how petitioners can inform themselves of the
status of pending decisions.
Id. at 1173.
On the other hand, the Second Circuit Court of Appeals held
in Ping Chen v. Attorney General, 502 F.3d 73, 76-77 (2d Cir.
2007) that, despite an alien’s affidavit of non-receipt of the BIA’s
opinion, substantial evidence supported the BIA’s finding that the
order was correctly mailed to the alien’s address. In Chen, the
alien claimed non-receipt of a BIA decision. Chen then sought
reissuance of the decision to enable her to timely petition for
review. The BIA denied this request. Chen then petitioned the
Second Circuit for review. The Government challenged Chen’s
petition, arguing that it was not filed within ninety days after the
BIA’s decision ordering her removal. See 8 U.S.C. §
1229a(c)(7)(C) (requiring motions to reopen to be filed within
ninety days of the removal order, subject to certain exceptions).3
The Second Circuit held that Chen’s motion to reopen “could be
timely if she established that the BIA had failed to serve her with
the removal order.” Chen, 502 F.3d at 75. The court then
addressed the proof required to satisfy the alleged lack of service.
The Second Circuit, like the Ninth Circuit in Singh, centered
its attention on the mailing of the BIA’s decision. It held that
evidence of non-receipt of a BIA’s decision, presented in the form
of an affidavit, “is relevant to show that the order may not have
been properly mailed at all [although] it is circumstantial evidence
as to that question....” Id. at 77 (citation omitted). Therefore, the

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The court also dismissed circumstantial evidence submitted by4
Chen as having been waived. For instance, the court did not
consider Chen’s claim that she had much to lose by letting her time
to appeal lapse. Chen, 502 F.3d at 77. Neither did the court
consider Chen’s argument that she promptly filed a motion to have
the BIA reissue its opinion upon learning of the BIA’s decision.
Id. She claimed these contentions constituted additional
circumstantial evidence relevant to her willingness to adhere to
agency deadlines. Id.
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Second Circuit opined that “in resolving the question of mailing,
the BIA may reasonably accord less weight to an affidavit of non-
receipt than to its own records establishing that the order was in
fact mailed.” Id. The court then stated that the BIA “must,
however, take into account relevant evidence that, considered
together with the affidavit of non-receipt, could cast doubt on the
accuracy of the BIA’s records.” Id. (citation omitted).
The only evidence of mailing in Chen was, as in Singh and
as in the Jahjaga and Gjeroski appeals that we are reviewing, a
transmittal cover letter addressed to Chen’s residence.
Nevertheless, the Second Circuit held that this was substantial
evidence of mailing, which Chen’s and her relative’s affidavits of
non-receipt did not contradict. Id. According to the court, Chen’s
affidavits did “not point to any irregularity in the BIA’s records
suggesting service of the ... order was not accomplished as
indicated by the cover sheet.” Id. The only evidence before the4
BIA, according to the Second Circuit, was Chen’s affidavit and an
affidavit from her relative pertaining to non-receipt of the BIA’s
opinion. This was insufficient, the Second Circuit held, to rebut
“the substantial evidence supporting the BIA’s finding that the
order was correctly mailed to Ping Chen’s address.” Id. Therefore,
the Second Circuit denied her petition.
The Chen court emphasized that its interpretation of 8
C.F.R. § 1003.1(f), which requires mailing of a decision, does not
require that the party actually receive the decision. Id. Building on
that premise, the court held that once the BIA has performed its
duty of service (e.g., mailing the decision), the time for appeal and
motions begins to run even if the order miscarries in the mail or the
alien does not receive it. Id. at 76-77. Says the Second Circuit,
“that is not the BIA’s fault.” Id. at 77.

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Even where litigants in our federal courts do not receive notice5
of the district court’s decision, we have amended our jurisdictional
rules of Federal Rule of Appellate Procedure 4 to provide a safety
valve permitting delayed appeals. See Fed. R. App. P. 4(a)(6);
Firmansjah v. Ashcroft, 347 F.3d 625, 626 (7th Cir. 2003).
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B.
We believe the Ninth Circuit took the better approach in
remanding to the BIA the question of what weight should be
accorded to an alien’s affidavit of non-receipt in determining
whether the BIA’s final order of removal was properly served. We
take comfort in an analysis, such as in Singh, because it affords the
BIA an opportunity to consider evidence suggesting that the final
order of removal may have been never properly served. Because
the content and reasoning of the BIA opinion can mean life or
death to a deportee, a failure to properly serve an order of removal
– so that it may be challenged – offends the principles of our justice
system.5
An alien claiming non-receipt of a BIA decision, and who
presents the BIA with an affidavit to that effect, may well have
provided enough evidence to rebut the presumption of mailing
which attaches to the presence of a transmittal cover letter in the
administrative record. However, we decline to decide that question
in the first instance. Instead, we will remand to the BIA to
determine what weight to accord to the claims of non-receipt of its
opinions by Jahjaga and Gjeroski in determining whether the
opinions were properly served, and to explain the reasoning and
analysis it employs in reaching its decision. In doing so, we also
honor the Government’s request that we remand both appeals to the
BIA so as to permit the BIA to bring its expertise to bear upon the
matter. See Ventura, 537 U.S. at 17.

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