United States Court of Appeals

For the First Circuit

No. 05-1777

JESUETTE TOBETH-TANGANG,

Petitioner,

v.

ALBERTO GONZALES, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD

OF IMMIGRATION APPEALS

Before

 Selya, Lynch and Howard, Circuit Judges.

Bokwe G. Mofor on brief for petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division,

Christopher C. Fuller, Senior Litigation Counsel, and Jonathan F.

Potter, Trial Attorney, United States Department of Justice, on

brief for respondent.

March 14, 2006
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SELYA, Circuit Judge. The petitioner, Jesuette TobethTangang, a native of Cameroon, petitions for review of a decision

of the Board of Immigration Appeals (BIA) denying her motion to

reopen removal proceedings in order to allow reissuance of its

earlier merits decision. The petitioner claims that neither she

nor her attorney received a copy of that decision when it was

issued and that, therefore, the BIA abused its discretion in

denying her motion. Finding no abuse of discretion, we reject the

petition for review.

The basic facts are straightforward. The petitioner

entered the United States as a nonimmigrant visitor for business on

December 17, 1998. That status allowed her to remain in the United

States until March 16, 1999, but prohibited her from taking paid

employment during her stay. See 8 U.S.C. § 1101(a)(15)(B). The

petitioner nonetheless accepted a paid job and overstayed her

prescribed time. On June 16, 1999, the Immigration and

Naturalization Service instituted removal proceedings against her

by the issuance of a notice to appear. See id. § 1229(a). 

The petitioner retained counsel and cross-applied for

asylum, withholding of removal, and voluntary departure. She

averred in substance that, if deported to Cameroon, she would be at

risk because of her prior political affiliation. Her most detailed

allegation was that, as a member of the Social Democratic Front,

she had been kidnaped, beaten, and interrogated in 1997 by members
The record shows that the entry of appearance form 1

unambiguously listed counsel's address as "8121 Georgia Avenue

#102, Silver Spring, MD 20910." Inside his brief, counsel listed

his address as "914 Silver Spring Avenue, #112," in the same

municipality and state.

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of the ruling Cameroon People Democratic Movement. Building on

that foundation, she suggested that, if she were to return to

Cameroon, her political antagonists would kill her.

The Immigration Judge (IJ) held an evidentiary hearing on

various dates. Finding the petitioner's testimony lacking both in

credibility and in corroboration, the IJ rejected the full panoply

of the petitioner's requests for relief and ordered her removed to

Cameroon. The IJ filed his decision on May 3, 2000. 

The petitioner, through her attorney, took a timely

appeal to the BIA. On the same date (May 31, 2000), her counsel

filed an entry of appearance (Form EOIR-27). Two weeks later, the

petitioner's counsel filed a brief with the BIA. The signature

block contained a different mailing address than the address noted

on his entry of appearance.1

On March 26, 2003, the BIA affirmed the IJ's ukase. As

required by rule, the BIA mailed a copy of its decision (the

Decision) to the attorney's address of record (i.e., to him at the

address stated in his entry of appearance form). See 8 C.F.R. §

1003.1(f). The attorney had moved, however, so the copy of the

Decision was returned as undeliverable by the postal service. The

petitioner claims — and for present purposes, we assume arguendo —
Although the petitioner sought reissuance of the Decision, 2

that relief is not mentioned in the regulations. In all events,

the case would have to be reopened before the BIA could grant the

requested relief. We therefore follow the BIA's lead and treat the

motion as a motion to reopen. 

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that neither she nor her lawyer knew of the Decision until November

5, 2004, when the petitioner attended a meeting convened by

immigration officials.

Four days after that meeting, the petitioner, acting

through the same counsel, lodged an inquiry with the BIA about the

status of her case. In that inquiry, she asserted that neither she

nor her attorney had received any correspondence from the BIA since

June 1, 2001. The BIA responded promptly, sending the lawyer a

copy of the Decision and informing him that he apparently had moved

his office without changing the address on file with the BIA. 

On December 11, 2004, the petitioner moved for reissuance

of the Decision. She implored the BIA to entertain the motion

because neither she nor her counsel had contemporaneously received

a copy of the Decision. The BIA denied the motion on April 26,

2005. Treating it as a motion to reopen, the BIA determined that 2

there had been no defect in service of the Decision and that the

petitioner's counsel had neglected to file a change of address form

as required by the applicable regulation. See 8 C.F.R. §

1003.38(e). 

This petition for judicial review followed. In it, the

petitioner prays that we reverse the BIA's denial of her motion on
The petitioner also attempts to attack the correctness of the 3

Decision. That attack falls outside the scope of our review. See

8 U.S.C. § 1252(b)(1) (requiring that petitions for review be filed

within thirty days of the final administrative decision); see also

Stone v. INS, 514 U.S. 386, 406 (1995) (holding that a court of

appeals lacks jurisdiction to review a BIA decision if the petition

for review is filed after the statutory deadline). Consequently,

we do not address this aspect of the petitioner's asseverational

array.

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the ground that the Decision was never properly served upon her.3

We review the BIA's decision to grant or deny a motion to

reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323

(1992). Within that rubric, we must uphold the BIA's subsidiary

findings of fact as long as those findings are supported by

substantial evidence. Radkov v. Ashcroft, 375 F.3d 96, 98 (1st

Cir. 2004). However, the BIA's legal conclusions are reviewed de

novo. Id. Any material error of law automatically constitutes an

abuse of discretion. Id.

We discern no abuse of discretion here. The BIA has an

affirmative obligation to mail a copy of its final decision to the

alien. See 8 C.F.R. § 1003.1(f). Where, as here, the alien is

represented by counsel, that duty may be discharged by mailing a

copy of the decision to the alien's attorney of record. See id.

In this case, the petitioner was represented by counsel, so a

proper mailing to the attorney was the legal equivalent of a proper

mailing to the petitioner. See id. § 292.5(a).

The mailing here was proper. The record makes manifest

that the BIA sent a transmittal letter enclosing the Decision on
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March 26, 2003 (the day that it rendered the Decision) to the

petitioner's attorney at the latter's address of record. The

record contains not only a copy of this transmittal letter but also

a copy of a second letter sent by the BIA, in November of 2004,

following the petitioner's belated inquiry into the status of her

case. In that second letter, the BIA explained that the earlier

transmittal letter was returned as undeliverable. Finally, the

second letter noted that counsel had not advised the BIA of a

change in address when he moved his office.

The BIA accepted these facts as true, and so do we. The

record permits no other conclusion. The short of it, then, is that

the BIA mailed the Decision to the petitioner's attorney within the

prescribed time frame and at the address he had specified. 

Given this factual predicate, our decision in Radkov is

controlling. There, on substantially similar facts, we held that:

The time for filing a review petition begins

to run when the BIA complies with the terms of

the applicable regulations by mailing its

decision to a petitioner's address of record.

Even if, as the petitioners contend, the

mailing in this case somehow went awry without

any fault on the part of the BIA, that

circumstance alone would not excuse the

failure to file a timeous motion to reopen.

Radkov, 375 F.3d at 99 (citations omitted). It follows that the

BIA's mailing was properly sent. And since its non-receipt was not

due to any fault on the part of the BIA, the fact that it was not

received does not suffice to excuse the petitioner's failure to
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file a timely motion to reopen. See id.; see also 8 C.F.R. §

1003.2(c)(2) (requiring that a motion to reopen be made within

ninety days of the final administrative decision in the underlying

proceeding).

The petitioner argues that the reference to counsel's new

address in the signature block of the brief should be deemed

sufficient to apprise the BIA of his change of address. We find

this argument unconvincing. The regulations prescribe a set

procedure by which aliens and their attorneys must keep the BIA

informed of changes in address. See 8 C.F.R. § 1003.38(e)

(requiring aliens and their counsel to submit an EOIR-33 form

within five business days of any change in address). The record is

devoid of any indication that the petitioner's counsel complied

exactly or substantially with this regulation — and, indeed, the

petitioner does not claim that her lawyer did so. 

Quasi-judicial proceedings, like judicial proceedings,

operate best when clear rules of procedure are prescribed. Once

that is done, however, litigants must comply with applicable rules,

and the agency, like a court, is entitled to assume that the

parties are compliant. Obedience to the rules is important; unless

the agency demands such obedience, it cannot command respect. It

follows inexorably that non-observance of the rules should neither

be indulged nor lightly excused. Cf. de la Torre v. Cont'l Ins.

Co., 15 F.3d 12, 16 (1st Cir. 1994) (explaining that a plaintiff
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who fails to comply with "clearly delineated rules" cannot

legitimately be heard to complain when the court holds fast to

those rules). 

So it is here. The BIA was entitled to rely on the

address on file, and had no duty to hunt through every piece of

paper pertinent to the case in search of indications to the

contrary. 

We need go no further. Simply put, the BIA satisfied its

legal obligation by mailing the Decision to the petitioner at the

unrevoked address furnished by her counsel on the entry of

appearance form. See Radkov, 375 F.3d at 99; Nowak v. INS, 94 F.3d

390, 391-92 (7th Cir. 1996). Its subsequent adherence to the

regulations governing entries of appearance and changes of address

was well within the realm of its discretion. Consequently, there

is no principled way that we can overturn the BIA's denial of the

motion to reopen.

The petition for review is denied.