IDANIA PEREZ-PORTILLO, ET AL V. MERRICK GARLAND, No. 20-73486 (9th Cir. 2022)
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Petitioner and her daughter were removed in absentia by the Immigration Judge ("IJ"). Petitioner sought relief, citing non-receipt of the hearing notice. The Board of Immigration Appeals affirmed the IJ's decision.
The Ninth Circuit reversed the Board of Immigration Appeals' decision to remove Petitioner and her daughter in absentia, finding that the IJ should have determined the credibility of Petitioner's claims of non-receipt of her hearing notice in light of all the circumstantial and corroborating evidence in the record. Under 8 U.S.C. Sec. 1229a(b)(5)(C)(ii), an in absentia order may be rescinded upon a motion to reopen if the alien demonstrates non-receipt of the notice statutorily required for removal hearings. The Ninth Circuit found that there was circumstantial evidence supporting Petitioner's claim that she did not receive the hearing notice.
Court Description: Immigration. Granting the petition for review that Idania Yamileth Perez-Portillo and her minor daughter filed from the Board of Immigration Appeals’ dismissal of Perez-Portillo’s appeal from an Immigration Judge’s denial of her motion to reopen immigration proceedings in which she and her daughter were removed in absentia, and remanding, the panel held that the IJ should have determined the credibility of Perez-Portillo’s claims of non-receipt of her hearing notice in light of all the circumstantial and corroborating evidence in the record. When Perez-Portillo failed to appear at her removal hearing, an IJ ordered her and her daughter removed in absentia. Under 8 U.S.C. § 1229a(b)(5)(C)(ii), an in absentia order may be rescinded upon a motion to reopen if the alien demonstrates non-receipt of the notice statutorily required for removal hearings. Perez-Portillo filed a pro se motion to reopen, claiming that she did not receive the hearing notice that rescheduled her hearing to a date two months earlier than its original date. The IJ denied the motion by applying a presumption of delivery and the doctrine of constructive notice (under which an alien may be charged with receiving notice when the hearing notice was sent to the last address provided to the immigration court). The BIA dismissed Perez-Portillo’s appeal. PEREZ-PORTILLO V. GARLAND 3 The panel explained that the presumption of delivery attached to service of a hearing notice by regular mail is rebuttable, and that both this court and the BIA have outlined factors (including consideration of circumstantial and corroborating evidence) that should be applied to analyze whether an alien has rebutted the presumption. Here, the panel observed that there was circumstantial evidence that corroborated Perez-Portillo’s claim. The panel further explained that neither the IJ nor the BIA directly addressed the credibility of Perez-Portillo’s statements of non-receipt. The panel observed that, in general, facts presented in affidavits supporting a motion to reopen must be accepted as true unless inherently unbelievable. Although Perez-Portillo’s statements were not in the form of an affidavit, the panel observed that this court has not required such from pro se petitioners. Here, the panel concluded that there was nothing inherently unbelievable in Perez-Portillo’s claim of non-receipt. Thus, the panel concluded, unless the IJ found Perez- Portillo not credible based on additional filings or after a hearing (neither of which occurred here), her statements of non-receipt should have persuasive weight. If determined to be credible, Perez-Portillo’s statements and the corroborating circumstantial evidence might be sufficient to overcome the presumption of delivery. However, the panel concluded that the IJ invoked the doctrine of constructive notice based solely on the government’s alleged compliance with the statutory mailing requirement and the success of other mailings to Perez-Portillo and failed to undertake the practical evaluation of all the evidence required by the BIA. The panel noted that it did not address the application of the doctrine of constructive notice once the credibility of the 4 PEREZ-PORTILLO V. GARLAND assertion of non-receipt has been considered; rather, it held only that if a showing of non-receipt were overruled by the doctrine based solely on the government’s compliance with statutory mailing procedures without consideration of other relevant evidence, the language of 8 U.S.C. § 1229a(b)(5)(C)(ii) permitting an alien to demonstrate lack of actual notice would be without meaning. Because the agency invoked the doctrine of constructive notice without considering the credibility of Perez-Portillo’s claim in light of all the circumstantial and corroborating evidence, the panel granted the petition and remanded.
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