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Keywords

statuteappealhearingaffidavitmotionburden of proofvisa
statuteappealhearingmotionvisa

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Salta v. Immigration and Naturalization Service

Facts

Petitioner Regina Salta entered the U.S. on a student visa in 1985 and sought to apply for cancellation of removal based on her continuous residence. After receiving notice of a hearing, which was postponed, the INS sent a notice of a second hearing by regular mail. Salta failed to appear, leading to a removal hearing in absentia. She later filed a motion to reopen, claiming she never received notice of the second hearing, which was denied based on the presumption that public officers perform their duties properly.

Petitioner Regina Salta entered the U.S. on a student visa in 1985 and sought to apply for cancellation of removal based on her continuous residence. After receiving notice of a hearing, which was postponed, the INS sent a notice of a second hearing by regular mail. Salta failed to appear, leading to a removal hearing in absentia.

Issue

Did the Board of Immigration Appeals err in applying presumptions and burdens of proof tailored to a statute requiring notice by certified mail, where notice was given pursuant to an amended version of the statute allowing the use of regular mail?

Did the Board of Immigration Appeals err in applying presumptions and burdens of proof tailored to a statute requiring notice by certified mail, where notice was given pursuant to an amended version of the statute allowing the use of regular mail?

Rule

The current statute, 8 U.S.C.S. 1229(a)(1), permits notice to be sent by regular mail, which does not raise the same strong presumption of delivery as certified mail. The burden of proof for demonstrating lack of notice is less stringent under the current statute.

The current statute, 8 U.S.C.S. 1229(a)(1), permits notice to be sent by regular mail, which does not raise the same strong presumption of delivery as certified mail.

Analysis

The court determined that the BIA and IJ abused their discretion by applying the evidentiary requirements from prior cases involving certified mail to Salta's case, where notice was sent by regular mail. The court noted that while there is still a presumption that postal officers perform their duties, the standards for rebutting that presumption are lower when regular mail is used. The court emphasized that Salta's sworn affidavit asserting non-receipt should have been sufficient to warrant an evidentiary hearing.

The court determined that the BIA and IJ abused their discretion by applying the evidentiary requirements from prior cases involving certified mail to Salta's case, where notice was sent by regular mail.

Conclusion

The court granted Salta's petition for review and remanded the case with instructions for the BIA to remand to the IJ to conduct an evidentiary hearing regarding Salta's motion to reopen her application for cancellation of removal.

The court granted Salta's petition for review and remanded the case with instructions for the BIA to remand to the IJ to conduct an evidentiary hearing regarding Salta's motion to reopen her application for cancellation of removal.

Who won?

Petitioner Regina Salta prevailed in the case because the court found that the BIA and IJ improperly applied the evidentiary standards from a previous statute requiring certified mail, which led to an abuse of discretion.

Petitioner Regina Salta prevailed in the case because the court found that the BIA and IJ improperly applied the evidentiary standards from a previous statute requiring certified mail, which led to an abuse of discretion.

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