FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DALIP SINGH, 

No. 04-72701 Petitioner,

Agency No.

v.  A77-424-559

ALBERTO R. GONZALES, Attorney ORDER AND General, OPINION Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 17, 2006—San Francisco, California

Filed July 19, 2007

Before: Alex Kozinski and Raymond C. Fisher,

Circuit Judges, and Frederic Block, Senior District Judge.*

Opinion by Judge Fisher;

Concurrence by Judge Block

*The Honorable Frederic Block, Senior United States District Judge for

the Eastern District of New York, sitting by designation. 

8809
COUNSEL

Inna Lipkin, Law Office of Kuldip S. Dhariwal, Fremont,

California, for the petitioner. 

Peter D. Keisler, Assistant Attorney General, Jeffrey J. Bernstein, Senior Litigation Counsel, Benedetto Giliberti, Attorney, and Joan Smiley (argued), Attorney, United States

Department of Justice, Washington, D.C., for the respondent.

ORDER

Singh’s petition for rehearing and for rehearing en banc,

filed January 12, 2007, is granted in part. The opinion filed

November 28, 2006, see Singh v. Gonzales, 469 F.3d 863 (9th

Cir. 2006), is hereby withdrawn. A superseding opinion and

concurrence will be filed concurrently with this order. Further

petitions for rehearing or rehearing en banc may be filed.

SINGH V. GONZALES 8811
OPINION

FISHER, Circuit Judge: 

Petitioner Dalip Singh is a 42-year-old native and citizen of

India. After an Immigration Judge (IJ) denied Singh’s asylum

claim, Singh timely appealed the IJ’s adverse decision to the

Board of Immigration Appeals (BIA). On October 7, 2003,

the BIA issued its decision denying Singh’s appeal in an order

affirming the IJ without an opinion. Singh and his attorney of

record, Kuldip Dhariwal, swear they did not receive notice of

the decision.1 The BIA contends, however, that it sent the

decision by regular mail to Singh’s counsel, whose correct

address appears on the decision’s transmittal cover sheet; the

BIA acknowledges that the decision was not sent to Singh

himself. 

Singh contends that neither he nor his attorney learned of

the BIA’s October 2003 decision until February 2004, well

after the time for Singh to file an appeal with this court had

lapsed. See 8 U.S.C. § 1252(b)(1) (30-day time limit for filing

petitions for judicial review); Caruncho v. INS, 68 F.3d 356,

359 (9th Cir. 1995) (statutory time limit is mandatory and

jurisdictional); see also Stone v. INS, 514 U.S. 386, 394-95

(1995) (statutory time limit is not tolled by the filing of a

motion to reopen or reconsider). On February 23, Dhariwal

received a “bag and baggage order” from the Immigration and

Naturalization Service,2 directing Singh to appear for removal

on March 2, 2004.3 After Dhariwal phoned the BIA and was

1The factual allegations supporting Singh’s and Dhariwal’s claims that

they did not receive notice of the October 2003 decision are taken from

the motion to reopen and affidavits submitted to the BIA. Except as otherwise noted, the government does not contest these assertions. 

2The INS has been abolished and its functions transferred to the Department of Homeland Security. See Homeland Security Act of 2002, Pub. L.

No. 107-296, 116 Stat. 2135, 2142 (2002), 6 U.S.C. §§ 101-557. 

3The bag and baggage order was dated February 11, 2004. Such an

order issues once the government determines that there is no further

administrative relief available to an alien who is subject to an order of

removal, and instructs the alien to appear at a specified location and time

for removal. 

8812 SINGH V. GONZALES
informed about its October 2003 denial of Singh’s appeal, he

promptly filed a motion to reopen with the BIA, requesting

that it reissue its decision so Singh could timely appeal to this

court. Both Dhariwal and Singh attached affidavits to the

motion to reopen, swearing under penalty of perjury that neither had received the Board’s earlier decision. The BIA

denied Singh’s motion on April 28, 2004, stating, in full:

“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 now petitions for

review of the Board’s denial of his motion to reopen. 

[1] Singh’s affidavits of nonreceipt suggest that the decision may never have been mailed. If true, that would violate

8 C.F.R. § 1003.1(f), which requires that the BIA serve a copy

of its decision on the affected alien. The BIA stated that the

decision “was correctly mailed” to Singh’s attorney, but provided no explanation of how it reached this conclusion.

“[T]he BIA is obligated to consider and address in its entirety

the evidence submitted by a petitioner,” and where its failure

to do so could have affected its decision, remand is appropriate. Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.

2005); see also Maravilla Maravilla v. Ashcroft, 381 F.3d

855, 858 (9th Cir. 2004). 

[2] If the decision was properly mailed, then the BIA fulfilled its statutory duty of service. See Martinez-Serrano v.

INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (“Time for filing a

review petition begins to run when the BIA complies with the

terms of federal regulations by mailing its decision to petitioner’s [or his counsel’s] address of record.”) (emphasis

removed); see also 8 C.F.R. §§ 1003.1(f), 1003.13 (requiring

the BIA to serve notice of its decision on the affected alien

and defining service as “physically presenting or mailing a

document to the appropriate party or parties”). In concluding

that Singh’s decision was properly mailed, however, the BIA

did not explain its reasons for doing so, nor did it acknowlSINGH V. GONZALES 8813
edge the affidavits filed by both Singh and his lawyer alleging

nonreceipt of the BIA’s decision. Although we have previously held that a properly addressed cover letter creates a presumption of mailing on the date of the cover letter, see

Haroutunian v. INS, 87 F.3d 374, 375 (9th Cir. 1996), we

have never held that such a presumption cannot be rebutted by

affidavits of nonreceipt by both a petitioner and his counsel

of record. Indeed, in Haroutunian, we specifically noted that

“[a]lthough Haroutunian had ample opportunity to present

evidence” to support his assertions of nonmailing, he had

failed to do so and that the sole evidence before us then was

the properly addressed cover letter. Id.; see also KarimianKaklaki v. INS, 997 F.2d 108, 111 (5th Cir. 1993) (applying

a presumption of mailing based on a cover letter but noting

that “petitioners have not asserted that they did not receive a

copy of the BIA decision”). Because the only evidence

regarding mailing petitioners would have is information about

their own receipt or nonreceipt of the decision, Haroutunian

does not foreclose a petitioner’s sworn affidavit — particularly if reinforced by an affidavit from counsel, as here —

being sufficient to rebut the presumption of mailing and

requiring the BIA to look beyond the cover letter. We decline

to resolve this issue on the record before us, however. 

Had the BIA considered and specifically addressed the

effect of Singh’s and his counsel’s affidavits of nonreceipt, it

may well have concluded that the presumption of mailing created by the cover letter was rebutted and would have required

further evidence of mailing before determining that the decision had indeed been properly mailed. See Nunley v. City of

Los Angeles, 52 F.3d 792, 795-96 & n.5 (9th Cir. 1995) (stating that “[u]nder the so-called ‘bursting bubble’ approach to

presumptions, a presumption disappears where rebuttal evidence is presented” and that a “specific factual denial of

receipt” by the addressee is sufficient to support a finding that

the recipient did not receive notice of entry of judgment from

the district court, thereby allowing the district court the discretion to extend the party’s time to file an appeal). We do not

8814 SINGH V. GONZALES
know from the BIA’s cursory denial of Singh’s motion in its

April 28, 2004 decision whether or not it did consider the affidavits, or what process it would have followed assuming the

affidavits were sufficient to rebut the presumption of mailing.

[3] 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 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.

[4] We therefore GRANT the petition for review and

REMAND for further proceedings consistent with this opinion. 

BLOCK, Senior District Judge, concurring in the result: 

I agree that the BIA’s failure to address the affidavits of

non-receipt requires remand. I write separately, however, to

express my disagreement with my colleagues’ conclusion that

the BIA should be allowed to determine, in the first instance,

the legal effect of the affidavits. In my view, we owe it to the

parties to provide clearer guidance, if for no other reason than

to foreclose another petition for review should the BIA mistakenly determine that the affidavits, if authentic, do not overcome the presumption of mailing. Cf., e.g., Yepes-Prado v.

INS, 10 F.3d 1363, 1372 (9th Cir. 1993) (“To avoid a repetition of [the BIA’s] errors on remand, we will address them at

this point.”). 

I would hold that, absent any concerns about their authenticity, the affidavits were sufficient to rebut the presumption

SINGH V. GONZALES 8815
of mailing that arose by virtue of the BIA’s correctly

addressed cover letter. See Nunley v. City of Los Angeles, 52

F.3d 792, 796 (9th Cir. 1995) (“Courts have formulated the

presumption [of mailing] so as to hold it rebutted upon a specific factual denial of receipt.”). I would, therefore, remand

and require the BIA (1) to address whether there is any reason

to doubt the affidavits’ authenticity, and if not, (2) to determine, without the benefit of any presumption, whether its

decision was properly mailed. See id. (“Under the so-called

‘bursting bubble’ approach to presumptions, a presumption

disappears where rebuttal evidence is presented.”).

8816 SINGH V. GONZALES