Silva v. Mukasey (2d Cir. 2/21/08)

STRAUB Winter Sotomayor

The 2nd Cir found that because the presumption of delivery of regular mail is slight, it is generally overcome where alien was eligible for relief, didn't appear, and swears that he or she never received notice.

Read decision here 

Facts: Mtn to reopen in absentia order, was eligible for AOS through I-140 grandfathered into 245(i). 

1.  Reliance on Grijalva was erroneous, in light of use of regular US mail.

   In the present case, in once more denying Silva’s motion to reopen, the BIA on remand again relied on Grijalva for the proposition that “[t]he presumption of effective service can only be overcome with substantial and probative evidence such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence demonstrating there was improper delivery.” (emphasis added). The BIA made no mention of the fact that under the law of this Circuit and several other circuits, NTAs that were served via regular mail call for a “less stringent, rebuttable presumption” of receipt. Alrefae, 471 F.3d at 359; see also Kozak v. 6 Gonzales, 502 F.3d 34, 36 (1st Cir. 2007); Santana Gonzalez v. Att’y General of U.S., 506 F.3d 274, 279 (3d Cir. 2007); Nibagwire v. Gonzales, 450 F.3d 153, 156 (4th Cir. 2006); Maknojiya v. Gonzales, 432 F.3d 588, 589 (5th Cir. 2005) (per curiam); Joshi v. Ashcroft, 389 F.3d 732, 735 (7th Cir. 2004); Ghounem v. Ashcroft, 378 F.3d 740, 744-45 (8th Cir. 2004); Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002).* * *

   Because the decision cites the Grijalva standard and makes no mention of a less stringent presumption of receipt, we must assume that “the presumption” that the BIA referred to was the more stringent presumption provided for in Grijalva, or a functional equivalent. Because the BIA applied a stringent presumption of delivery of which we have explicitly disapproved in cases such as Silva’s where notice was effectuated by regular—as opposed to certified—mail, we hold that the BIA exceeded the bounds of its allowable discretion in dismissing Silva’s appeal. The case must be remanded to the BIA for reconsideration under a less stringent standard.

2.  Joined 9th, 3d, and 8th cirs in finding that where alien is eligible for relief, generally sufficient to overcome the slight presumption of receipt with regular mail.

   Although we have previously declined to delineate the parameters of such a standard,4 the Ninth Circuit has concluded that where a petitioner had appeared at earlier immigration proceedings, had no motive to avoid the immigration proceedings, and in fact had initiated proceedings to obtain an immigration benefit, a statement or affidavit by the petitioner stating that he or she had not received notice should ordinarily suffice to overcome the presumption of receipt. See Salta, 314 F.3d at 1079; Sembiring v. Gonzales, 499 F.3d 981, 986–88 (9th Cir. 2007). The Third and Eighth Circuits have approved of this approach. See Santana Gonzalez, 506 F.3d at 279–81; Ghounem, 378 F.3d at 745.

   This approach appears to us to be sound in light of the reduced reliability of regular mail, as well as the difficulties involved in obtaining the type of evidence required in Grijalva in the context of regular mail. See, e.g., Sembiring, 499 F.3d at 987 (“If a letter is sent by certified mail, there is a paper trail in Postal Service records showing both mailing and receipt (or non-receipt). By contrast, there is no Postal Service paper trail for regular mail. . . . If the evidence described in Grijalva ‘were the standard under the current statute, we would leave respondents virtually without recourse to rebut the presumption of effective delivery.’” (quoting Ghounem, 378 F.3d at 744)). Accordingly, we now join our sister circuits in holding that the burden of proof to overcome the slight presumption of receipt in the context of regular mail is significantly lower than the burden set forth in Grijalva. Specifically, we think that the presumption of receipt in regular mail cases does no more than to shift a tie-breaking burden of proof to the alien claiming non-receipt.

FN4 In declining to adopt a specific standard in our prior decisions, we joined those of our sister circuits who explicitly or implicitly saw fit to leave this delineation to the BIA. See, e.g., Kozak, 502 F.3d at 36 (“We leave it to the BIA to come up with a new standard to be applied to aliens who claim non-receipt of notices sent by regular mail.”); Nibagwire, 450 F.3d at 158; Maknojiya, 432 F.3d at 589. However, the BIA has, thus far, failed to adopt such a standard. Indeed, on remand in the present case, the BIA issued a one-member, unpublished decision which failed to set forth a standard and, in fact, employed the rejected Grijalva standard.

3.  Board must consider evidence in "practical fashion, guided by common sense"

Applying the reasoning of the Ninth Circuit would, in our view, lead to the conclusion that Silva’s case should be reopened.... We do not presume to instruct the BIA as to the precise documentation and testimony required to defeat the slight presumption of receipt of regular mail. We do, however, hold that the BIA must consider all of the petitioner’s evidence (circumstantial or otherwise) in a practical fashion, guided by common sense, to determine whether the slight presumption of receipt of regular mail has more probably than not been overcome. We now leave it to the BIA to apply this less stringent standard to the facts of this case in the first instance.

Atty: Steven Lyons, Law Offices of Martin C. Liu

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