Madrigal v. Holder (6th Cir. 7/9/09)
DAUGHTREY Rogers Kethledge (concurring)
Ms. Madrigal filed for adjustment, was served the NTA in 2004 and no hearing date till 2006 - she said she didn't get it, and sought to rescind - the IJ refused, the BIA denied a stay, and she was removed. The BIA then found that her departure from the US was a withdrawal of her motion.
The Sixth Cir rejected the Govt's attempts to argue that the Board's order (finding a withdrawal) wasn't a removal order, and also rejected their arguments that she hadn't exhausted administrative remedies. It then went on to analyze the substance of the BIA decision.
Madrigal argued that there was an inconsistency between 8 CFR 1003.4 (departure = withdrawal of motion) with other regulations permitting rescission "at any time" for lack of notice. The 6th cir did not reach that issue. Instead, interpreting Long v. Gonzales, 420 F.3d 516, 520 (5th Cir. 2005), it treated the "departure" prong of 1003.4 as equivalent to a waiver. Because Ms. Madrigal didn't voluntarily leave (and did everything she could to stay), it found that bar simply inapplicable:
[P]rinciples of fundamental fairness would be violated were we to find, in every case, that section 1003.4 is applicable to pending administrative appeals following the departure of removable aliens regardless of the circumstances of their removal. * * * To allow the government to cut off Madrigal’s statutory right to appeal an adverse decision, in this manner, simply by removing her before a stay can be issued or a ruling on the merits can be obtained, strikes us as a perversion of the administrative process. We therefore hold that the withdrawal provision of section 1003.4 is inapplicable in this situation.
Judge Kethledge, concurring, noted that there was no showing that “personal service [wa]s not practicable,” 8 U.S.C. § 1229(a)(1); 8 C.F.R. § 1003.13 (emphasis added) (a precondition to the use of regular mail). He further noted that 8 U.S.C. § 1229(c) provides that “[s]ervice by mail [of a notice to appear] shall be sufficient if there is proof of attempted delivery to the last address provided by the alien[.]” (the record contained no "proof" of attempted delivery to the last address).