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Keywords

appealhearingmotioncircumstantial evidence

attorneyappealcircumstantial evidence

Related Cases

Lopes v. Gonzales

Facts

Silva, a native and citizen of Brazil, entered the United States without inspection in September 2000. In 2001, his employer filed an application for Alien Labor Certification on his behalf. Silva was later taken into custody by U.S. Immigration and Customs Enforcement and served with a notice to appear for a hearing. He failed to appear, claiming he never received the notice. After the IJ ordered him removed in absentia, Silva filed a motion to reopen his case, which was denied by the IJ and subsequently dismissed by the BIA.

Silva, a native and citizen of Brazil, entered the United States without inspection on approximately September 7, 2000. In 2001, Silva's employer filed an application for Alien Labor Certification on Silva's behalf, which, if approved, would render him eligible to apply for an adjustment of status to that of permanent resident, a decision that rests within the discretion of the Attorney General.

Issue

Whether the BIA erred in applying a presumption of receipt to a notice to appear that was properly addressed and mailed according to regular office procedures, and whether it exceeded its discretion in dismissing the alien's appeal without considering all circumstantial evidence he presented in support of his claim of non-receipt.

The precise issues before us are whether the BIA (1) erred in applying a presumption of receipt to a notice to appear that was properly addressed and mailed according to regular office procedures, and (2) exceeded its discretion in dismissing Silva's appeal without considering all of the circumstantial evidence he presented in support of his claim of non-receipt.

Rule

A presumption of receipt attaches to a piece of mail that is properly addressed and sent according to normal office procedures. The BIA must consider all relevant evidence, including circumstantial evidence, offered to rebut that presumption.

We hold that a presumption of receipt attaches to a piece of mail that is properly addressed and sent according to normal office procedures.

Analysis

The court found that while the BIA correctly applied a presumption of receipt, it failed to consider significant circumstantial evidence presented by Silva that could rebut that presumption. This included Silva's application for Alien Labor Certification, his prompt change of address, and his disclosure of the removal order when applying for permanent residency. The BIA's dismissal of Silva's appeal without considering this evidence constituted an excess of discretion.

Although the BIA properly applied a presumption of receipt, it failed to consider all the evidence that Silva offered to rebut that presumption.

Conclusion

The petition was granted, the BIA's decision was vacated, and the case was remanded for further proceedings consistent with the court's opinion.

For the reasons set forth above, the petition is GRANTED, the decision of the BIA is VACATED, and the case is REMANDED for further proceedings consistent with this opinion.

Who won?

Silva prevailed in the case because the court found that the BIA had not adequately considered all relevant evidence in its decision-making process.

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