In re Adolfo Jose GRIJALVA, Respondent

File A28 812 710 - Los Angeles

Decided April 28, 1995

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Under section 242B(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(a)(1)

(Supp. V 1993), service of the Order to Show Cause (Form I-221) must be given in person to

the respondent or, if personal service is not practicable, such notice must be given by certified mail to the respondent or to his counsel of record, if any, with the requirement that the

certified mail receipt be signed by the respondent or a responsible person at the respondent’s

address to accomplish personal service. Matter of Huete, 20 I&N Dec. 250 (BIA 1991),

followed.

(2) Under sections 242B(a)(2) and (c)(1) of the Act, written notice of the deportation proceedings sent by certified mail to the respondent at the last address provided by the respondent is

sufficient to establish proper service by clear, unequivocal, and convincing evidence. Proof

of actual service or receipt of the notice by the respondent is not required to effect service. It

is incumbent upon the respondent to provide an address where he can receive mail in a regular and timely manner.

(3) For purposes of section 242B(a)(2) of the Act, “in person” service of the notice of deportation proceeding is deemed “not practicable” when the respondent is not in immigration court

before the Immigration Judge.

(4) In cases where service of a notice of a deportation proceeding is sent by certified mail

through the United States Postal Service and there is proof of attempted delivery and notification of certified mail, a strong presumption of effective service arises which only may be

overcome by the affirmative defense of nondelivery or improper delivery by the Postal

Service.

FOR RESPONDENT: Kathy Alfred, Esquire, Los Angeles, California

Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA and

HEILMAN, Board Members; HOLMES, Alternate Board Member

HEILMAN, Board Member:

In a decision dated November 23, 1993, an Immigration Judge found the

respondent deportable as charged under section 241(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(B) (Supp. V 1993), and

ordered the respondent deported from the United States to Nicaragua. The

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decision was rendered following a hearing held in absentia due to the respondent’s failure to appear pursuant to section 242B of the Act, 8 U.S.C. § 1252b

(Supp. V 1993). The respondent filed a motion to reopen deportation proceedings with the Immigration Judge on January 31, 1994, pursuant to section 242B(c)(3)(B) of the Act, claiming that he never received notice of the

November 23, 1993, hearing.1 The Immigration Judge denied the motion to

reopen in a decision dated May 19, 1994. The respondent has appealed from

that decision. The Immigration and Naturalization Service has filed no

response to the respondent’s appeal or appeal brief. On September 23, 1994,

the Board of Immigration Appeals denied the respondent’s request for stay of

deportation. The record will be remanded to the Immigration Judge.

I. FACTUAL BACKGROUND

The record reflects that on May 3, 1993, the Service issued an Order to

Show Cause and Notice of Hearing (Form I-221) against the respondent

charging him with deportability under section 241(a)(1)(B) of the Act, as an

alien who had entered the United States without inspection. The Order to

Show Cause was sent on July 8, 1993, by certified mail, return receipt

requested, to the respondent at “728 E. Kensington Rd., #1, Los Angeles, CA

90026.” The return receipt for the Order to Show Cause is not in the record on

appeal, but in the respondent’s January 31, 1994, motion to reopen he

acknowledged receipt of the Order to Show Cause in July 1993.

The May 3, 1993, Order to Show Cause ordered the respondent to appear

for a hearing before an Immigration Judge of the Executive Office for Immigration Review (“EOIR”) which would be calendared. The respondent was

advised that notice of the calendared hearing would be mailed to the address

provided by him. In addition, printed instructions on the reverse side of the

Order to Show Cause form informed the respondent that he was required to

be present at his deportation hearing and that if he failed to appear at any

hearing after having been given written notice of the date, time, and location

of his hearing, he would be ordered deported in his absence, if it was established that he is deportable and had been provided the appropriate notice of

the hearing. The printed instructions further advised the respondent that he

was required by law to provide immediately in writing an address (and telephone number, if any) where he could be contacted and to provide any

change in his address or telephone number to the Office of the Immigration

Judge listed on the Order to Show Cause, and that any notices would be

mailed only to the last address provided by him.

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1 The respondent’s certificate of service for the motion to reopen, which states that a copy

was delivered to “room 8323" does not establish that the motion was properly served on the

Immigration and Naturalization Service, and the Service did not respond to the motion. See

8 C.F.R. § 3.23 (1995).
The record further reflects that on October 8, 1993, the Office of the Immigration Judge sent to the respondent written notice of his deportation hearing

scheduled for November 23, 1993. This notice of the hearing was sent to the

respondent at the above address by certified mail, return receipt requested.

The certified mail return receipt was returned to the Office of the Immigration Judge on October 27, 1993, as unclaimed following notices of certified

mail provided to the respondent by the United States Postal Service on October 12, and 15, 1993.

The respondent did not appear for his hearing scheduled for November 23,

1993. Following a hearing held in absentia pursuant to section 242B of the

Act, the Immigration Judge ordered the respondent deported from the United

States to Nicaragua. The Immigration Judge’s decision rendered on November 23, 1993, was sent to the respondent at the address listed above.

In his motion to reopen filed with the Immigration Judge on January 31,

1994, the respondent claimed that he never received notice of the November

23, 1993, hearing. He pointed out, however, that he had received the Order to

Show Cause and the Immigration Judge’s November 23, 1993, decision.

Along with the motion to reopen, the respondent submitted a Change of

Address Form (Form EOIR-33) in which he listed his address as the same

address listed above.

II. IMMIGRATION JUDGE’S DECISION

In his decision denying the motion to reopen, the Immigration Judge

determined that the respondent was properly notified of the hearing in question because the notice, though unclaimed, was sent to him by certified mail

to his last known address. The Immigration Judge noted that the certified

mail return receipt reflects that the respondent failed to claim his mail after

several attempts to deliver the mail were made by the Postal Service. The

Immigration Judge further concluded that the respondent had failed to demonstrate exceptional circumstances for his failure to attend the hearing in

question.

III. RESPONDENT’S APPELLATE ARGUMENTS

On appeal, the respondent contends that he was not properly served with

notice of the November 23, 1993, hearing as required by section

242B(a)(2)(A) of the Act. He cites section 242B(a)(2)(A) of the Act as

requiring that written notice of a deportation hearing be given in person to the

alien or, if personal service is not practicable, that written notice be given by

certified mail to the alien or to the alien’s counsel of record, if any.

First, the respondent argues that service of the hearing notice should have

been initially attempted by personal service, which is required unless it is not

practicable. In this regard, he maintains that there is no evidence in this

record that personal service was not practicable, particularly as the

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respondent lives in Los Angeles, the same city where the federal building

which houses the Office of the Immigration Judge and the Service is located.

Secondly, the respondent argues that written notice of the hearing in question was not accomplished by “certified mail to the alien” because the notice

was not given to the respondent in person by the Postal Service.2

Finally, the respondent urges the Board to apply its holding in Matter of

Huete, 20 I&N Dec. 250 (BIA 1991), to the hearing notice in the instant case.

In Matter of Huete, supra, the Board held that in order to effect personal service of an Order to Show Cause and Notice of Hearing sent by certified mail,

return receipt requested, the receipt must be signed by the addressee or a responsible person at his address and returned.

On appeal, the respondent, in support of his claim that he did not receive

notice of the hearing in question or notice to claim the certified mail by the

Postal Service, has proffered statements from relatives declaring that during

the month of October 1993 no notice was received at their joint address from

the Postal Service. The respondent also has proffered a statement from a

neighbor who reported that on occasion he saw “call-in notices” for certified

mail lying on top of the mailbox for tenants in their building.

IV. BACKGROUND OF SECTION 242B

The respondent’s hearing in the case before us was conducted pursuant to

the statutory provisions of section 242B of the Act. Section 242B was added

as a new section to the Act by section 545(a) of the Immigration Act of 1990,

Pub. L. No. 101-649, 104 Stat. 4978, 5061 (enacted Nov. 29, 1990)

(“IMMACT 90"), as amended by section 306(b)(6) of the Miscellaneous and

Technical Immigration and Naturalization Amendments of 1991, Pub. L.

No. 102-232, 105 Stat. 1733, 1753 (enacted Dec. 12, 1991). The enactment

of section 242B responds to some of the concerns raised in an October 1989

United States General Accounting Office (”GAO") report on delays in the

deportation process and the substantial number of aliens who fail to

appear for their scheduled deportation hearings. See Immigration Control:

Deporting and Excluding Aliens from the United States, GAO Report No.

GAO/GGD-90-18 (1990); see also 136 Cong. Rec. H8630 (daily ed. Oct. 2,

1990). The GAO, in its October 1989 report, recommended several solutions

to this problem, including developing procedures to improve the notification

process and preventing aliens from benefiting from the various discretionary

forms of relief after failing to appear for their hearings. These recommendations have been incorporated in section 242B of the Act, which contains several important procedural changes governing deportation proceedings,

particularly for in absentia hearings. These new changes include modifications to the Order to Show Cause and notice requirements, the establishment

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2 Respondent’s counsel did not enter an appearance on behalf of the respondent until the

filing of the appeal.
of a central address file system, and the imposition of consequences for failing to appear for hearings.

There is very little legislative history pertaining to the due process and

enforcement provisions under section 545 of IMMACT 90 because these

provisions were not the subject of hearings in either the House of Representatives or the Senate and were not previously approved in either body. The legislation itself, however, evidences congressional intent to prescribe stricter

and more comprehensive deportation procedures, particularly for in absentia

hearings, to ensure that proceedings are brought to a conclusion with meaningful consequences. See also 136 Cong. Rec. H8630 (daily ed. Oct. 2,

1990); 136 Cong. Rec. S17,109 (daily ed. Oct. 26, 1990).

V. SECTION 242B(a)(1) NOTICE REQUIREMENTS

With this context in mind, we address the case before us in which the

respondent has raised several issues of first impression pertaining to the

notice provisions contained in section 242B. We begin our review first by

examining the statutory language employed by Congress in section

242B(a)(1). In this regard, we note that the object of statutory construction is

to determine congressional intent with respect to the legislation enacted. The

paramount index of congressional intent is the plain meaning of the words

used in the statute taken as a whole. INS v. Cardoza-Fonseca, 480 U.S. 421,

431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984); Matter of

Grinberg, 20 I&N Dec. 911 (BIA 1994).

Section 242B(a)(1) provides, in pertinent part:

NOTICES. -

(1) ORDER TO SHOW CAUSE. - In deportation proceedings under section 242, written notice (in this section referred to as an “order to show cause”) shall be given in person to the alien (or, if personal service is not practicable, such notice shall be given by

certified mail to the alien or to the alien’s counsel of record, if any)....

The term “certified mail” is later defined by section 242B(f)(1) to mean

“certified mail, return receipt requested.” Section 242B(a)(1)(F)(i) further

provides that the Order to Show Cause must specify the requirement that the

alien immediately provide (or have provided) the Attorney General with a

written record of an address and telephone number (if any) at which the alien

may be contacted respecting deportation proceedings under section 242 of

the Act. Section 242B contains no additional reference to service of the

Order to Show Cause, and there are no implementing regulations.

VI. THE BOARD’S PRIOR HOLDING IN MATTER OF HUETE

In Matter of Huetesupra, supra, this Board interpreted a Service regulatory definition of personal service that included mailing a copy of a notice by

certified mail, return receipt requested. See 8 C.F.R. § 103.5a(a)(2)(iv)

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(1990). As correctly pointed out by the respondent on appeal, the Board in

Matter of Huete, supra, held that in order to effect personal service of an

Order to Show Cause and Notice of Hearing sent by certified mail, return

receipt requested, the receipt must be signed by the addressee or a responsible person at his address and returned. In this regard, we stated:

Our review of the statute and pertinent regulations leads us to conclude that the most reasonable interpretation of the provision for service by certified mail, return receipt requested, is

to require that the certified mail receipt be signed by the respondent or a responsible person

at the respondent’s address and returned to effect personal service.

Matter of Huete, supra, at 253.

VII. SERVICE OF ORDERS TO SHOW CAUSE

Matter of Huete, supra, was decided before section 242B became effective and, hence, must be revisited in light of the new statutory provisions of

section 242B. Section 242B became effective as to subsections (a), (b), (c),

and (e)(1) on June 13, 1992. See section 545(g) of IMMACT 90, 104 Stat. at

5066. Even though section 242B(f)(i) defines certified mail as meaning “certified mail, return receipt requested,” section 242B(a)(1) concerning service

of the Order to Show Cause contains no additional language regarding this

method of service or the perfection of service by this prescribed method.

In the absence of new or contrary language, we find that our holding in

Huete continues to be applicable to the accomplishment of service of the

Order to Show Cause by certified mail. Thus, under section 242B(a)(1) of the

Act, service of the Order to Show Cause must be given in person to the alien.

If personal service is not practicable, such notice must be given by certified

mail to the alien or to his counsel of record, if any, with the requirement that

the certified mail receipt be signed by the respondent or a responsible person

at the respondent’s address to accomplish personal service. Then, when the

Order to Show Cause is filed with the Office of the Immigration Judge by the

Immigration and Naturalization Service, jurisdiction over the case vests with

the Immigration Judge and proceedings commence. See 8 C.F.R. § 3.14(a)

(1995).

VIII. SERVICE OF NOTICES OF DEPORTATION

PROCEEDINGS

On appeal, the respondent urges the Board to expand its holding in Matter

of Huete, supra, to apply not only to the service of the Order to Show Cause,

but also to service of hearing notices under section 242B(a)(2). We decline

to do so based on our review of the statutory language employed by Congress

in sections 242B(a)(2) and (c)(1).

In language identical to section 242B(a)(1) pertaining to service of the Order to Show Cause, section 242B(a)(2)(A) provides that written notice of

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deportation proceedings under section 242 or any change or postponement in

the time or place of such proceedings:

shall be given in person to the alien (or, if personal service is not practicable, written notice

shall be given by certified mail to the alien or to the alien’s counsel of record, if any) in the

order to show cause or otherwise, of -

(i) the time and place at which proceedings will be held.

Sections 242B(c)(1) and (2) state:

CONSEQUENCES OF FAILURE TO APPEAR. -

(1) IN GENERAL. - Any alien who, after written notice required under subsection (a)(2)

has been provided to the alien or the alien’s counsel of record, does not attend a proceeding

under section 242, shall be ordered deported under section 242(b)(1) in absentia if the Service establishes by clear, unequivocal, and convincing evidence that, the written notice was

so provided and that the alien is deportable. The written notice by the Attorney General

shall be considered sufficient for purposes of this paragraph if provided at the most recent

address provided under subsection (a)(1)(F).

(2) NO NOTICE IF FAILURE TO PROVIDE ADDRESS INFORMATION. - No written

notice shall be required under paragraph (1) if the alien has failed to provide the address

required under subsection (a)(1)(F).

By its plain meaning, subsection (c)(1) refers to service of the notices of

deportation proceedings, and only pertains to these notices and not to the

Orders to Show Cause. The last sentence in subsection (c)(1) states that written notice of the deportation proceeding provided at the most recent address

is considered sufficient for purposes of determining whether there was clear,

unequivocal, and convincing evidence that written notice was provided

under subsection (a)(2). In our view this means that certified mail of such

notice of deportation proceedings which is sent to the respondent’s last

known address is sufficient and that proof of actual service or receipt of the

notice by the respondent is not required. It is incumbent upon the respondent

to provide an address where he can receive mail in a regular and timely manner. See sections 242B(a)(1)(F)(i)-(ii), (4), (c)(1)-(2). In this regard, we point

out that this qualifying sentence in question in subsection (c)(1) directs service upon an address, rather than a person.

The only regulatory provisions pertaining to the notices of hearings are

found at 8 C.F.R. § 3.26 (1994) which provide:

In any proceeding before an Immigration Judge in which the respondent/applicant fails to

appear, the Immigration Judge shall conduct an in absentia hearing if the Immigration

Judge is satisfied that notice of the time and place of the proceeding was provided to the

respondent/applicant on the record at a prior hearing or by written notice to the respondent/applicant or to respondent/applicant’s counsel of record, if any, at the most recent

address contained in the Record of Proceeding.

Thus, we view the last sentence in section 242B(c)(1) to mean that written

notice of the deportation proceedings, if provided by certified mail, must be

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provided at the most recent address reported by the alien. There is no requirement that the certified mail return receipt be signed by the alien or a responsible person at his address to effect service. To hold otherwise would render

this last sentence of subsection (c)(1) meaningless as superfluous language

and would be contrary to Congress’ express intent. Also, as previously noted,

no similar qualification or modification pertaining to service of the Order to

Show Cause is found in section 242B.

We further observe that section 242B(c)(3)(B) provides a remedy for a

respondent who has been ordered deported at a hearing held in absentia under

section 242B(c)(1) and who claims that he did not receive proper notice of

the deportation proceeding:

RESCISSION OF ORDER. - Such an order may be rescinded only-

....

(B) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not

receive notice in accordance with subsection (a)(2) or the alien demonstrates that the alien

was in Federal or State custody and did not appear through no fault of the alien.

The filing of the motion to reopen described in subparagraph (A) or (B) shall stay the deportation of the alien pending disposition of the motion.

Section 242B(c)(3)(B) of the Act; see also Matter of Gonzalez-Lopez, 20

I&N Dec. 644 (BIA 1993) (holding that an in absentia order made under section 242B(c)(1) may only be rescinded by filing a motion to reopen with the

Immigration Judge).

The statutory provision of such remedy supports the conclusion that service of the deportation proceeding notice is treated differently from that of

the Order to Show Cause. The inclusion of this remedy for improper service

of the deportation proceedings notice under section 242B(c)(3), but its omission with regard to the service of the Order to Show Cause, demonstrates that

Congress only contemplated the requirement of actual service of the Order to

Show Cause, rather than the hearing notice. In this regard, we also note that

jurisdiction vested over the case when the Order to Show Cause was filed

with the Immigration Judge by the Service and that the alien already had

notice that he was in deportation proceedings and would be notified of the

calendared hearing.

IX. “IN PERSON” SERVICE OF NOTICES

The respondent also argues on appeal that EOIR or the Office of the Immigration Judge has to show that “in person” service was not “practicable”

before the Immigration Judge can assume jurisdiction over a case where service was made by certified mail and that in the instant case such burden of

proof has not been met. We disagree.

Section 242B fails to define when personal service is “not practicable.” In

contrast to the Service, which issues and serves the Order to Show Cause on

the alien, neither EOIR nor the Office of the Immigration Judge has any

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statutory or regulatory authority to establish or maintain the necessary personnel or resources to provide service of the notices of deportation proceedings to aliens “in person” other than through issuance of such notices when

the respondent has appeared before the Immigration Judge. The function of

EOIR, including the Offices of the Immigration Judge, is adjudicative in

nature. EOIR, including the Immigration Judges, is not part of the Service.

See Matter of Torre, 19 I&N Dec. 18 (BIA 1984).

In the case before us, the respondent was not present in immigration court.

We therefore find that the record adequately demonstrates that “in person”

service of the notice of the deportation proceeding was not “practicable” as

the respondent was not before the Immigration Judge. Accordingly, service

of the deportation proceeding by certified mail was proper.

X. ANALYSIS OF FACTS AND CONCLUSION

The record in the case before us reflects that the Order to Show Cause was

sent to the respondent by certified mail, return receipt requested, on July 8,

1993, and he has acknowledged actual receipt of the Order to Show Cause.

Proper service of the Order to Show Cause on the respondent is not at issue.

Following service of the Order to Show Cause by the Service on the

respondent, the Office of the Immigration Judge 3 months later sent to the

respondent by certified mail, return receipt requested, written notice that his

deportation hearing was scheduled for November 23, 1993. This notice was

sent to the respondent at his last known address, which was listed on the

Order to Show Cause. The certified mail return receipt was returned to the

Office of the Immigration Judge as “unclaimed.” On the envelope containing

the hearing notice, the Postal Service stamp and handwritten notations indicate that attempted delivery to the respondent was made on October 12, 1993,

and that notices of certified mail were provided at the respondent’s address

on October 12, 1993, and October 15, 1993. The certified mail receipt and

the hearing notice were returned by the Postal Service to the Office of the

Immigration Judge on October 27, 1993, as “unclaimed.”

The respondent did not appear for the hearing scheduled for November 23,

1993. The hearing was held in the respondent’s absence. At the hearing, the

Service, to support its charge of deportability under section 241(a)(1)(B) of

the Act, presented as evidence a Record of Deportable Alien (Form I-213) for

the respondent, reflecting his entry without inspection on August 22, 1983.

The Immigration Judge found the respondent deportable as charged and

ordered him deported from the United States to Nicaragua. The respondent’s

deportability as charged is not in dispute. The Immigration Judge’s November 23, 1993, in absentia order was sent to the respondent by mail and he has

acknowledged its receipt.

Two months after the Immigration Judge entered his in absentia order of

deportation in this case, the respondent filed with the Immigration Judge a

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motion to reopen to rescind that order under section 242B(c)(3)(B) of the

Act. The Immigration Judge denied the motion to reopen.

We find that the Immigration Judge properly denied the motion to reopen

because the respondent failed to demonstrate that he did not receive notice of

the deportation proceeding scheduled for November 23, 1993, in accordance

with section 242B(a)(2) as required to be shown to support a motion to

reopen under section 242B(c)(3)(B). The Service had established by clear,

unequivocal, and convincing evidence that the alien was deportable and that

proper written notice of the deportation proceeding scheduled for November

23, 1993, was provided to the respondent as mandated under section

242B(a)(2) of the Act. Therefore, the Immigration Judge was required to

order the respondent’s deportation in absentia under section 242(b)(1). Section 242B(c)(1) of the Act. Inasmuch as service of the notice of the deportation proceeding scheduled for November 23, 1993, “in person” on the

respondent was not “practicable,” service by certified mail was proper.

We further find that service of the notice of the deportation proceeding in

question was accomplished by certified mail under the statutory requirements of sections 242B(a)(2) and (c)(1), even though the certified mail

receipt reflects that the notice was returned as “unclaimed” because such

notice was sent as required by certified mail to the respondent’s last known

address which was provided by him.

XI. ADDITIONAL EVIDENCE PROFFERED ON APPEAL

The respondent now maintains on appeal from the denial of the motion to

reopen that he never received the Postal Service notices notifying him that he

had certified mail. He contends that Postal Service employees do not always

follow proper procedures for delivering certified mail in the building where

he lives because sometimes they place the certified mail notices on top of the

mailboxes rather than in the mailboxes. On appeal, he has proffered some

documentary evidence in support of this claim. We point out to the respondent that while it is claimed that the Postal Service engages in the practice of

placing certified mail notices on top of the mailboxes, he has not explained

whether he checked these notices, especially after he was advised that he

would be notified of his calendared deportation hearing.

Ordinarily, the Board will not remand a record to the Immigration Judge

for consideration of evidence proffered on appeal which was available and

could have been presented at an earlier hearing or along with a motion to

reopen filed with the Immigration Judge. See Matter of Coelho, 20 I&N Dec.

464 (BIA 1992) (holding that the Board may deny a motion to remand where

a prima facie case for the relief sought has not been established or, in the

absence of previously unavailable, material evidence or where the ultimate

relief is discretionary, if the relief would not be granted in the exercise of discretion). We emphasize that in the ordinary course where a respondent files a

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motion to reopen to rescind an in absentia order pursuant to section

242B(c)(3) of the Act, the Board will not consider any previously available

evidence first proffered on appeal as our review is limited to the record of

proceedings before the Immigration Judge. The evidence necessary to support the motion to reopen must be presented to the Immigration Judge with

the motion to reopen.

XII. PRESUMPTION OF EFFECTIVE SERVICE OF NOTICES

OF DEPORTATION PROCEEDINGS

We find that in cases where service of a notice of a deportation proceeding

is sent by certified mail through the United States Postal Service and there is

proof of attempted delivery and notification of certified mail, a strong presumption of effective service arises. There is a presumption that public officers, including Postal Service employees, properly discharge their duties. See

Powell v. C.I.R., 958 F.2d 53 (4th Cir.), cert. denied,506 U.S. 965 (1992);

United States v. Chemical Foundation, Inc., 272 U.S. 1 (1926). A bald and

unsupported denial of receipt of certified mail notices is not sufficient to support a motion to reopen to rescind an in absentia order under section

242B(c)(3)(A) or (B) of the Act.

This presumption of effective service may be overcome by the affirmative

defense of nondelivery or improper delivery by the Postal Service. However,

in order to support this affirmative defense, the respondent must present substantial and probative evidence such as documentary evidence from the

Postal Service, third party affidavits, or other similar evidence demonstrating

that there was improper delivery or that nondelivery was not due to the

respondent’s failure to provide an address where he could receive mail.

Under the particular circumstances that have arisen in the instant case,

including the absence of implementing regulations or precedent regarding

the notice issues raised on motion to reopen, the Board will remand the

record to the Immigration Judge for further proceedings to consider the evidence proffered by the respondent on appeal in light of the foregoing opinion,

and for the entry of a new decision. We also point out that the Board is an

appellate body whose function is to review, not to create, a record. See Matter

of Fedorenko, 19 I&N Dec. 57 (BIA 1984). We reemphasize, however, that

where a respondent files a motion to reopen to rescind an in absentia order

pursuant to section 242B(c)(3) of the Act, the Board ordinarily will not consider any previously available evidence first proffered on appeal as its review

is limited to the record of proceedings before the Immigration Judge. The

evidence necessary to support the motion to reopen must be presented to the

Immigration Judge with the motion to reopen.

ORDER: The record is remanded to the Immigration Judge for

further proceedings consistent with the foregoing opinion and for the entry of

a new decision.

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