NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 18-2877 _____________

RAMON COPLIN, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

_______________

On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA 1:A078-830-303) Immigration Judge: David Cheng _______________

Submitted Under Third Circuit LAR 34.1(a) March 23, 2020

Before: JORDAN, RESTREPO, and GREENBERG, Circuit Judges

(Filed: March 24, 2020) _______________

OPINION* _______________

* This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. JORDAN, Circuit Judge.

Petitioner Ramon Coplin seeks review of the denial by the Board of Immigration

Appeals (“BIA”) of his motion to reopen proceedings related to his in absentia removal

order. Coplin says that he did not receive the notice to appear (“NTA”) that was sent by

regular mail to the address he provided to the United States Citizenship and Immigration

Services (“USCIS”). The BIA decided that Coplin did not overcome the presumption of

receipt that attaches to notices sent via regular mail. Because we conclude that the BIA

did not abuse its direction in denying the motion to reopen, we will deny the petition for

review.

I. BACKGROUND

Coplin is a native and citizen of the Dominican Republic who came to the United

States in 1991, when he entered without inspection. He has resided here ever since. In

2001, his status was adjusted to lawful permanent resident on a conditional basis,

premised on an application by his U.S. citizen spouse. In 2003, Coplin filed a petition to

remove the conditions on his permanent resident status. He appeared at an interview with

the USCIS and was advised that the decision on his petition would be mailed to him. On

August 8, 2005, Coplin’s status as a lawful permanent resident was terminated because

he “failed to establish that [his] marriage was entered into in good faith, and not merely

to procure [his] entry to the United States as an immigrant.” (A.R. 99.) The Department

of Homeland Security then issued an NTA charging Coplin as removable. The NTA was

sent by regular mail to the address Coplin had provided. Over the next several months,

hearing notices were sent to Coplin’s address, scheduling and rescheduling the hearing.

2 The date finally set was May 10, 2006, but Coplin failed to appear for his hearing, and

the immigration judge (“IJ”) ordered his removal in absentia.

Although Coplin learned of the removal order in 2006 when he tried to obtain

proof of his immigration status in order to renew his driver’s license, there was no

activity in his case until some six years later, when his counsel sent a letter to the IJ

asking to review Coplin’s file. Following the submission of that letter, there was again

no activity in Coplin’s case for nearly six years, at which point his counsel filed a motion

to reopen and rescind Coplin’s in absentia removal order due to lack of notice. In his

motion, Coplin claimed that he had not received the notices sent to him, including the

NTA, although they were sent to the correct address. He claimed that mail often

“disappeared or was stolen” from his building. (A.R. 90.) The IJ denied the motion to

reopen, concluding that Coplin had not overcome the presumption that he had received

the notices. The IJ also declined to exercise his discretion to sua sponte reopen Coplin’s

case. The BIA affirmed the IJ’s rulings. It determined that service by mail was

appropriate, that he had failed to rebut the presumption that he received the notices, and

that he had also failed to demonstrate exceptional circumstances warranting the sua

sponte reopening of the case.

This timely petition for review followed.

3 II. DISCUSSION1

Coplin argues that the BIA erred in concluding that effective service of an NTA

has been established, and that the IJ thus did not have authority to enter the in absentia

order of removal. We disagree.

Contrary to Coplin’s argument, an NTA need not be personally served. Written

notice sent to the most recent address provided by the noncitizen is sufficient. 8 U.S.C.

§ 1229a(b)(5)(A);

(d); Matter of Grijalva,

(BIA

1995).

Although written notice sent by mail is sufficient, a noncitizen who is ordered

removed in absentia can have the order rescinded, “if the alien demonstrates that [he] did

not receive notice[.]” 8 U.S.C. § 1229a(b)(5)(C)(ii). Notices sent by regular mail are

entitled to a presumption of receipt, albeit a weaker presumption than that which attaches

to notices sent by certified mail. Santana Gonzalez v. Att’y Gen.,

(3d Cir. 2007). A noncitizen can rebut the presumption of receipt through the

“submission of an affidavit by an alien claiming non-receipt of a notice of hearing by him

or her, or a responsible person residing at her address, along with circumstantial evidence

corroborating the alien’s claims of non-receipt[.]”

. As the BIA has further

elaborated:

In determining whether a respondent has rebutted the weaker presumption of delivery applicable in these circumstances, an Immigration Judge may consider a variety of factors including, but not limited to, the following: (1)

1 The BIA had jurisdiction under

and

, and we have jurisdiction under

. “[W]e review the denial of a motion to reopen for an abuse of discretion.” Liu v. Att’y Gen.,

(3d Cir. 2009). 4 the respondent’s affidavit; (2) affidavits from family members or other individuals who are knowledgeable about the facts relevant to whether notice was received; (3) the respondent’s actions upon learning of the in absentia order, and whether due diligence was exercised in seeking to redress the situation; (4) any prior affirmative application for relief, indicating that the respondent had an incentive to appear; (5) any prior application for relief filed with the Immigration Court or any prima facie evidence in the record or the respondent’s motion of statutory eligibility for relief, indicating that the respondent had an incentive to appear; (6) the respondent’s previous attendance at Immigration Court hearings, if applicable; and (7) any other circumstances or evidence indicating possible nonreceipt of notice.

Matter of M-R-A-,

(BIA 2008).

Here, the BIA was well within its discretion in determining that Coplin had failed

to meet his burden to overcome the presumption of receipt. He submitted only his own

affidavit stating that he had never received any of the notices and alleging that the mail

may have disappeared or been stolen because the mailman left the mail in the building’s

foyer behind an unlocked door. That statement alone is insufficient to overcome the

presumption, especially considering that, when an NTA is delivered by mail “but does

not reach the alien through some failure in the internal workings of the household, the

alien can be charged with receiving proper notice, and proper notice will have been

effected.” In re M-D-,

(BIA 2002).

Moreover, as the BIA noted, several factors undermine Coplin’s claims of non-

receipt. For instance, he did not provide an affidavit from anyone else who resided at the

address to which the notices were sent; the notices were not returned by the postal

service; and, significantly, although he became aware of the removal order in 2006 when

attempting to renew his driver’s license, Coplin waited many years to file his motion to

5 reopen. Because he did not rebut the presumption that he received the NTA, Coplin’s

argument that the IJ did not have authority to grant the in absentia order of removal

against him necessarily fails.

III. CONCLUSION

For the foregoing reasons, we will deny the petition for review.

6