Edson Silva-Carvalho Lopes v. Alberto Gonzales, Attorney General

Citations: 468 F.3d 81; 2006 U.S. App. LEXIS 27241; 2006 WL 3103693Docket: 05-6878-

Court: Court of Appeals for the Second Circuit; November 2, 2006; Federal Appellate Court

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Petitioner Edson Silva-Carvalho Lopes sought judicial review of the Board of Immigration Appeals (BIA) decision from December 2, 2005, which dismissed his appeal regarding an immigration judge's denial of his motion to reopen and rescind an in absentia removal order. The key issues were whether the BIA improperly applied a presumption of receipt for a notice to appear that was correctly addressed and mailed, and whether it exceeded its discretion by not considering all circumstantial evidence presented by Silva to support his claim of non-receipt.

The court found that a presumption of receipt is valid for mail that is properly addressed and sent according to standard procedures. However, it ruled that the BIA acted beyond its discretion by dismissing Silva's appeal without adequately evaluating the circumstantial evidence he provided to counter that presumption. Consequently, the petition was granted, the BIA's decision was vacated, and the case was remanded for further proceedings.

Factual background reveals that Silva, a Brazilian citizen, entered the U.S. without inspection in September 2000. His employer filed for Alien Labor Certification on his behalf in 2001, which could lead to permanent residency. Silva was taken into custody by Immigration and Customs Enforcement in 2003 and received a notice to appear for a removal hearing. After posting bond, he submitted a change of address form. The INS mailed a notice to appear for an August 26 hearing to his new address, which he claims he never received, leading to his failure to attend and subsequent in absentia removal order. Although Silva received the removal order, he maintained that he did not receive the notice to appear. Following the approval of his Alien Labor Certification in February 2005, he applied for permanent residency and disclosed the removal order, subsequently filing a motion to reopen his case based on his non-receipt of the notice.

The Immigration Judge (IJ) denied Silva's motion to reopen his case and a motion to reconsider, leading Silva to appeal the denial of the motion to reopen. The Board of Immigration Appeals (BIA) dismissed this appeal in a written opinion dated December 2, 2005. The BIA referenced the precedent set in Matter of Grijalva, establishing a presumption of proper delivery by the Postal Service, which can be countered only with substantial evidence such as documentary proof or third-party affidavits. Although the current statute allows for service by regular first-class mail rather than certified mail, the BIA maintained a rebuttable presumption that Silva received the notice, asserting that he did not provide sufficient evidence to overcome this presumption. Silva's affidavit was deemed inadequate, lacking corroborative details about the delivery or any history of mail issues at his residence.

Silva subsequently filed a petition arguing that the BIA incorrectly applied a strong presumption of receipt and imposed strict requirements for rebuttal, as outlined in Grijalva. He contended that he had effectively rebutted any lesser presumption of delivery with his affidavit and additional facts presented to the BIA.

The legal framework under 8 U.S.C. § 1229(a)(1) stipulates that notices to appear must be delivered to the alien, either personally or by mail to the alien or their attorney. Although the statute previously required certified mail, it now allows first-class mail service. If an alien fails to appear for a removal hearing, the INS must demonstrate clear evidence that notice was provided to trigger an in absentia removal order, without needing to prove actual receipt. After such an order is entered, an alien may seek to reopen the case based on a claim of non-receipt of the notice, shifting the focus to whether the alien actually received it, as established in Joshi v. Ashcroft.

In Matter of Grijalva, 21 I. N. Dec. 27 (BIA 1995), the Board of Immigration Appeals (BIA) articulated standards for motions to reopen in absentia orders of removal based on non-receipt. It established that when deportation notices are sent via certified mail with proof of attempted delivery, there is a strong presumption of effective service. However, simply denying receipt is insufficient to support such a motion; substantial evidence, such as documentation from the Postal Service or third-party affidavits, is required to challenge this presumption. 

In the case at hand, Silva argued that the notices were defective for not being in his native Portuguese and that the BIA improperly applied Grijalva standards. The BIA found no requirement for notice in a specific language under 8 U.S.C. § 1229(a)(1)(G) and clarified that while Grijalva’s stringent standards apply to certified mail, it utilized a more general presumption of receipt based on the proper discharge of duties by public officers. This aligns with other judicial precedents recognizing a presumption of receipt when mail is correctly addressed and sent according to standard procedures. The record confirmed that Silva's notice was properly addressed and mailed, thus justifying the BIA's application of a rebuttable presumption of receipt.

The BIA exceeded its discretion by not fully considering all relevant evidence regarding Silva's claim of non-receipt of notice. While the BIA correctly applied a presumption of receipt, it incorrectly stated that Silva provided "no proof beyond a bare claim of non-receipt." The BIA overlooked three critical facts that could favor Silva's position: (1) Silva's application for Alien Labor Certification in 2001 suggests he would be attentive to subsequent immigration proceedings; (2) his prompt change of address to the INS indicates he did not intend to evade immigration authorities; and (3) his disclosure of the removal order when applying for permanent resident status in 2005 could imply that he would have complied with requirements had he known of the hearing. The BIA's failure to consider this evidence constitutes an abuse of discretion, as it is essential to evaluate all relevant evidence, including circumstantial evidence, when rebutting the presumption of receipt. The decision of the BIA is vacated, and the case is remanded for further proceedings. The motion for a stay of removal is denied as moot. Additionally, Silva's argument against the presumption of receipt based on mailing evidence under 8 U.S.C. § 1229a(b)(5) is deemed inapplicable, and the court does not address his claim for relief based on "fundamental fairness" or his speculative eligibility for future relief.