Salta v. Immigration and Naturalization Serv.

314 F.3d 1076 (9th Cir. 2002) ; Clearinghouse Number: 55126

Description

Ninth Circuit Revises Burden of Proof for Reopening Removal Proceeding Based on Lack of Notice

Abstract

The Ninth Circuit rejected presumptions and burdens of proof regarding a lack-of-notice claim to reopen a removal proceeding that it established in Arrieta v. INS, 117 F.3d 429 (1997). The established presumptions and burdens were tailored to a statute that required notice by certified mail and were not suited to the amended statute allowing the use of regular mail, the court said. Petitioner, who had overstayed a student visa, voluntarily approached the Immigration and Naturalization Service (INS) for an order to show cause so that she could apply for cancellation of removal based on continuous residence in the United States. Petitioner received notice for a hearing and appeared, but the hearing was continued. INS sent notice of the rescheduled hearing date by regular mail. Petitioner did not appear at the rescheduled hearing, and her removal was ordered in absentia. Petitioner, seeking to reopen the removal proceeding, claimed that she did not receive notice of the hearing. The immigration judge denied her petition in accordance with Board of Immigration Appeals precedent creating a presumption of delivery and requiring certain proofs of nondelivery, and the board dismissed her appeal. The Ninth Circuit held that INS abused its discretion in applying to regular mail delivery the presumption and proof requirements developed for notice by certified mail. Where a petitioner initiates a proceeding, appears at an earlier hearing, and has no motive to avoid the subsequent hearing, an affidavit from petitioner saying that she did not receive notice should be sufficient to rebut the presumption of delivery, the court held.

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Attorney Information
Docket Date
2002-12-30 00:00:00+00:00

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