Madatian

*158 MEMORANDUM *

On January 31, 1995, Petitioner Kristine Madatian, a native and citizen of Armenia, entered the United States without a valid entry document. Petitioner Kristine arrived with her sister, Gayane Madatian, and her nephew, Vahe Madatian (collect tively “the Madatians”). On June 9, 1995, the former INS began deportation proceedings against the Madatians. All three conceded removability and sought asylum and withholding of removal on the ground that they had been threatened and arrested by the Armenian secret police because of them brother’s political affiliation. The Madatians were denied asylum and withholding of removal, but were granted ninety days to voluntarily depart. The Immigration Judge informed them that if they failed to voluntarily depart, they would be ineligible for certain types of relief, including adjustment of status, for five years from the date of departure. They appealed.

On May 23, 1997, the BIA dismissed the appeal. On the same day, the BIA sent, via regular mail in an envelope addressed only to Gayane at her residence, a copy of its decision dismissing the appeal. The decision informed Gayane that she, Petitioner Kristine, and Vahe had…

Dissenting:

Chaidez v. Gonzales, decided since the briefing and oral arguments in this case, holds that a presumption of effective service applies when non-Order to Show Cause notices are sent to an alien at the alien’s last known address, 486 F.3d 1079, 1085 (9th Cir.2007). The BIA’s May 23, 1997 decision to dismiss the Madatians’ appeal of the IJ’s denial of asylum and withholding of deportation was mailed to Gayane Madatian at 203 West Maple, Apt. 203, Glendale, California 91204, the last-known address for Kristine Madatian. Although the cover letter in the mailing addresses only Gayane Madatian, the caption in the enclosed decision lists Gayane, Kristine, and Vahe. It is worth noting that Kristine filed a notice of appeal to the BIA (AR 109) separately and two days before Gayane and Vahe filed a joint notice of appeal (AR 107). While this separate filing of the appeal to the BIA might justify separate service of process to Kristine and to Gayane and Vahe, the BIA decision, with Kristine’s name in the caption, was in fact mailed to Kristine’s last-known address. Moreover, all three Madatians jointly filed a petition for review of the BIA decision with this court on June 26,…