In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 07-1221, 07-2035

ANDRZEJ DEREZINSKI,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

____________

Petition to Review an Order of the

Board of Immigration Appeals.

No. A29 226 827

____________

ARGUED DECEMBER 11, 2007—DECIDED FEBRUARY 20, 2008

____________

Before POSNER, WOOD, and EVANS, Circuit Judges.

POSNER, Circuit Judge. Back in 1994, the Immigration

and Naturalization Service served the petitioner with an

order to show cause why he should not be deported. The

order, which was read to him, said he’d be notified of the

date of his deportation hearing at the address that he

had given the Service, which was in Chicago. Several

weeks later, the Chicago office of the Immigration Court

sent, by certified mail to the petitioner’s address, a letter

notifying him of the date and time of the hearing. After

several unsuccessful attempts to deliver the letter, the
2 Nos. 07-1221, 07-2035

post office returned it to the sender as having been unclaimed, meaning that the mail carrier had not found

anyone at the address to sign for the notice and thus

acknowledge receipt. Without attempting further notice,

the immigration judge conducted the deportation hearing in absentia (that is, in the petitioner’s absence) and at

its conclusion ordered the petitioner deported. The following month the petitioner, without explaining how he had

learned about the hearing (though at the oral argument

in this court his counsel said that his client had received

the deportation order by ordinary mail), filed a petition to

reopen his case on the ground that he had received no

notice of the hearing. The immigration judge denied

the petition to reopen, finding that the petitioner had

refused to accept delivery of the notice. The Board of

Immigration Appeals affirmed—whereupon the petitioner

vanished, resurfacing only in 2006 when stopped for a

traffic violation. Deportation (now called removal) proceedings resumed. The petitioner sought to reopen the

original deportation proceeding on the ground that he

had not received notice of the deportation hearing. The

immigration judge denied the petition; so the deportation

(removal) order stood. The petitioner appealed to the

Board of Immigration Appeals, meeting rejection on two

independent grounds there: that the petitioner’s 11-year

delay in filing it made the petition untimely and that he

had either received notice of the hearing or, what would

amount to the same thing, evaded receipt.

There is no fixed time limit on a petition to reopen a

removal proceeding if the removal order was entered in

the petitioner’s absence and the ground of the petition is

that he did not receive notice of the removal proceeding.

8 C.F.R. § 1003.23(b)(4)(iii)(A); Kozak v. Gonzales, 502 F.3d
Nos. 07-1221, 07-2035 3

35 (1st Cir. 2007); Andia v. Ashcroft, 359 F.3d 1181, 1184

(9th Cir. 2004) (per curiam). But like any tribunal, the

Board has discretion to turn down repeated requests to

revisit a decision, and to do so without considering the

merits of the request unless there has been a material

change in circumstances, in order to avoid being flooded

with redundant filings. See 8 C.F.R. §§ 1003.2(c)(1), .2(a).

The Board had affirmed the rejection of the petitioner’s

argument that he had not been notified of the removal

hearing. Nothing had changed in eleven years to require

the Board to revisit the issue. It could have done so if it

wanted, but an 11-year delay in seeking reopening, with

no excuse except that the petitioner did not want to be

deported—a delay due indeed to the petitioner’s fugitive

status—was a valid, indeed a compelling, ground for

the Board’s refusing to entertain the repetitive petition.

INS v. Doherty, 502 U.S. 314, 323 (1992).

The Board’s alternative ground was also sound, and it is

worth discussing because the problem of notice of removal

hearings is a recurrent one. See, e.g., Peralta-Cabrera v.

Gonzales, 501 F.3d 837, 840-41 (7th Cir. 2007); Kozak v.

Gonzales, supra; Santana Gonzalez v. Attorney General, 506

F.3d 274 (9th Cir. 2007). When receipt of notice is at issue,

a sworn denial of having received notice makes the issue

of receipt one of fact. E.g., Joshi v. Ashcroft, 389 F.3d 732,

735 (7th Cir. 2004); Santana Gonzalez v. Attorney General,

supra, 506 F.3d at 280; Ghounem v. Ashcroft, 378 F.3d 740,

745 (8th Cir. 2004). Certified mail is an attractive means

of quelling a factual dispute over notice because if the

alien acknowledges in writing having received the notice

he cannot later deny receipt. But if there is no one at the

address to which the certified mail is delivered to sign

for it, it is returned to the post office as “unclaimed,”
4 Nos. 07-1221, 07-2035

leaving unsettled whether the addressee refused to accept

the certified letter or just happened to be out when delivery was attempted. However, postal regulations require the mail carrier to leave a notice of attempted delivery (and if the item isn’t called for within five days, a

second notice), Postal Operations Manual § 813.25 (2005);

and if these things are done with no result, the probability that the addressee refused to accept delivery soars.

A good way to backstop service of a notice to appear by

certified mail is to follow it up with a letter by regular

mail. Such a letter doesn’t have to be signed for and

therefore can just be stuck through the mail slot. If a

certified mailing followed by a regular mailing does not

elicit a response, the inference that the alien is evading

service becomes overwhelmingly likely—and if he argues

that he moved to a different address, he will be met

with the rejoinder that he was required to notify the

immigration authorities of a change of address. 8 U.S.C.

§ 1305(a); Wijeratne v. INS, 961 F.2d 1344, 1347 (7th Cir.

1992).

But the additional, follow-up mailing that we are suggesting is not a constitutional requirement: “the Due

Process Clause does not require . . . heroic efforts by the

Government; it requires only that the Government’s

effort be ‘reasonably calculated’ to apprise a party of the

pendency of the action.” Dusenberry v. United States,

534 U.S. 161, 170 (2002). If the efforts are adequate,

success is not required. Jones v. Flowers, 547 U.S. 220, 226-

27, 231 (2006). A certified mailing to an address known to

be current will ordinarily discharge the government’s duty

of notice, though, as we have just seen, it is not the best

method.
Nos. 07-1221, 07-2035 5

The issue in this case, however, is not the method of

giving notice but whether notice was received. An order of

removal entered in the alien’s absence can be reopened if

he did not receive notice. 8 U.S.C. § 1229a(b)(5)(C)(ii)

(current statute); 8 U.S.C. § 1252b(c)(3)(B) (statute applicable to our petitioner); Peralta-Cabrera v. Gonzales, 501 F.3d

837, 843-44 (7th Cir. 2007), and cases cited there. But by

trying to show that he did not receive notice he creates

a factual issue that the Board may be able to resolve in

favor of finding notice even if there was just the initial,

certified mailing. Joshi v. Ashcroft, supra, 389 F.3d at 735;

Ghounem v. Ashcroft, supra, 378 F.3d at 745. The Board

was able to do that in this case.

The petitioner’s sworn denial was the only evidence

of nonreceipt, and it was weak evidence because as we

explained in Joshi v. Ashcroft, supra, 389 F.3d at 735-36

(citation omitted), “Most letters are delivered, but some

aren’t, and so if there is a sworn denial of receipt the

trier of fact has to weigh the credibility of the denial in

light of the fact that the vast majority of letters are delivered and that the intended recipient has a strong incentive

to lie . . . . [However,] a bare, uncorroborated, self-serving

denial of receipt, even if sworn, is weak evidence. Nothing

is simpler than submitting an affidavit in which one

attests that one didn’t receive a particular piece of

mail. False swearing unfortunately is common and the

deterrent effect of the possibility of a perjury prosecution for filing a false affidavit in a civil case is close to nil.”

The petitioner’s lawyer told the Board—but without

backing up the assertion with an affidavit from his

client—that the petitioner had been out of town when

the attempts at delivery were made, had inquired of the

post office when he returned, and had been told that the
6 Nos. 07-1221, 07-2035

“parcel had been returned to the sender.” This submission actually weakens the petitioner’s case. Having been

read the order to show cause, he should have put two

and two together and realized that the “parcel” was the

notice of hearing that he was expecting because the order

to show cause that he had received and that had been read

to him told him to expect such a notice. At that point—at

least two months before the scheduled immigration

hearing—he should have contacted the immigration

authorities for the time and place of the hearing. De Jimenez

v. Ashcroft, 370 F.3d 783, 787 (8th Cir. 2004).

He places great weight on the Supreme Court’s decision in Jones v. Flowers, supra, which holds that when a

certified letter threatening a tax foreclosure is returned

unclaimed, the state must take additional steps to assure

that the property owner is notified that his property may be

taken. The only address that the state had was more than

30 years old, and it was quite likely that the taxpayer had

moved, as in fact he had. Nor had he received notice

to expect notice, as our petitioner did. And a property

owner is less likely than an illegal immigrant to avoid

a hearing, as it usually is possible to obtain relief from

proposed tax foreclosures. Our petitioner has never had a

good claim to remain in this country and may thus have

been unwilling to show up for a hearing—where he

might have been taken into custody, 8 U.S.C. § 1226(a)—

though by failing to do so he would have become ineligible for most forms of discretionary relief, 8 U.S.C.

§ 1229a(b)(7); Leal-Rodriguez v. INS, 990 F.2d 939, 950 (7th

Cir. 1993); Lopez v. INS, 184 F.3d 1097, 1101 n. 4 (9th Cir.

1999); In re M- S-, 22 I. & N. Dec. 349, 355 (BIA 1998),

and possibly suffered other adverse consequences as

well. 8 U.S.C. § 1229a(b)(5); Kay v. Ashcroft, 387 F.3d 664,

671-72 (7th Cir. 2004); Ursachi v. INS, 296 F.3d 592, 595 (7th
Nos. 07-1221, 07-2035 7

Cir. 2002); Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999). His

subsequent effort to evade removal is consistent with an

inference that he willfully refused to attend the hearing.

So the petitioner has no case. But the immigration

authorities could save themselves some headaches by

including the date, time, and place of the hearing in the

order to show cause. The only obstacle is bureaucratic, but

what greater obstacle is there to efficiency than bureaucracy? The order to show cause is issued by the Department of Homeland Security, but the notice of hearing

is issued by the Immigration Court, which is part of the

Justice Department. The Department of Homeland

Security does not know the hearing schedule of the immigration judges, so it can’t put the information required

to be included in the notice in the order to show cause. The

solution would require a degree of cooperation between

separate cabinet-level departments that would doubtless

be difficult to forge. The snafu in this case, after all, occurred before the creation of the Department of Homeland

Security, and thus at a time when all the immigration

agencies were in the Department of Justice, so that

interdepartmental cooperation was not required.

The petition for review is

DENIED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-20-08