417 F. App'x 397
5th Cir.2011Background
- Barahona is a Guatemalan citizen who entered the U.S. without inspection and was subject to a 1990 removal hearing.
- The IJ ordered deportation in absentia after Barahona failed to appear for the April 11, 1990 hearing; notice was mailed December 20, 1989.
- In February 2009 Barahona moved to reopen deportation proceedings under the Nicaraguan Adjustment and Central American Relief Act, arguing lack of notice.
- The IJ denied the motion to reopen and the BIA summarily affirmed; Barahona challenged on appeal.
- The BIA decision was not accompanied by an opinion, so the Fifth Circuit reviews the IJ’s decision as the agency’s.
- Key legal issue concerns whether Barahona rebutted the presumption of delivery of the notice and whether the affidavit of non-receipt could support a reopening.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ erred by applying the wrong standard in assessing reasonable cause for non-receipt of notice. | Barahona contends she did not receive notice, which suffices to reopen. | Barahona did not rebut delivery presumption or comply with address-change duties. | The IJ applied the incorrect legal standard; reversal and remand warranted. |
| Whether an affidavit of non-receipt can rebut the presumption of delivery when regular mail was used. | Affidavits of non-receipt are sufficient to rebut the weaker presumption and support reopening. | Affidavits cannot overcome delivery presumptions under regular mail in every case. | Affidavits of non-receipt can rebut the presumption and support reopening. |
| Whether failure to update address can defeat a motion to reopen when no evidence shows actual notice after a change of address. | Non-receipt evidence is independent of address updates if no notice was sent after move. | Failure to notify court of address change weakens non-receipt claim. | Failure to notify did not defeat reopening given lack of evidence of post-move notice by government. |
Key Cases Cited
- Maknojiya v. Gonzales, 432 F.3d 588 (5th Cir. 2005) (non-receipt affidavit can support reopening when regular mail used)
- Matter of M--- R-- - A---, 24 I. & N. Dec. 665 (BIA 2008) (presumption of delivery; weighs affidavits and other evidence)
- Beck v. Somerset Techs., 882 F.2d 993 (5th Cir. 1989) (presumption of delivery in mail notices)
- In re Grijalva, 21 I. & N. Dec. 27 (BIA 1995) (bald denial of receipt not sufficient to rescind in absentia order)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (address-change failure can affect notice proof)
- Williams-Igwonobe v. Gonzales, 437 F.3d 453 (5th Cir. 2006) (reasonable cause standard for pre-1992 hearings)
- Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004) (abuse-of-discretion review and de novo legal review)
- Zhou v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (abuse-of-discretion standard for motion to reopen)