Dorce v. Garland, 50 F.4th 207

Background

Ritch Cardy Dorce, a Haitian national and lawful permanent resident since 2000, was convicted in 2018 of carrying a firearm without a license and sentenced to two years' imprisonment. He was placed in removal proceedings in 2019.
At a September 30, 2019 hearing the IJ set a merits hearing for December 4, 2019 and later (per the record) mailed a notice rescheduling the merits hearing to December 19, 2019 (mailing dated November 27). Dorce says he did not receive the November 27 notice.
Dorce, pro se at the merits hearing on December 19, appeared without family witnesses he had expected to testify; he did not object at the hearing that he lacked timely written notice of the new date.
The IJ heard Dorce’s testimony, discounted aspects of his account of the firearm incident, found his firearms conviction a significant adverse factor, and denied cancellation of removal as a discretionary determination.
On appeal to the BIA (with counsel), Dorce submitted declarations from family members and his partner recounting what they would have testified to and asserting he lacked timely notice; the BIA found the notice was mailed, rejected the credibility of the alleged ex parte video call, and held Dorce failed to show prejudice from any notice defect.
The First Circuit reviewed the BIA decision, held the BIA did not err as a matter of law, and found substantial evidence supported the BIA’s conclusion that Dorce failed to show prejudice; the petition for review was denied (with a dissent urging remand).

Issues

Issue	Plaintiff's Argument (Dorce)	Defendant's Argument (BIA/Government)	Held
Whether written notice of the rescheduled merits hearing was not received and the presumption of mailing was rebutted	Dorce contends he never received the Nov. 27 rescheduling notice, supported by his and family declarations (and prior mail delays in custody)	Agency points to the mailed notice in the record, lack of undeliverable stamp, and Dorce’s failure to raise notice at the Dec. 19 hearing; presumption of delivery stands	BIA and First Circuit accepted that record shows notice mailed and that Dorce did not rebut the presumption of delivery with sufficient evidence
Whether the BIA considered the entire record (Matter of M-R-A- factors) in evaluating nonreceipt	Dorce argues the BIA ignored salient evidence (IJ’s general credibility finding, family declarations corroborating nonreceipt, prior mail delays, and his preparation/diligence)	BIA said it reviewed the declarations and found them deficient and largely cumulative; no procedural error shown	Court found BIA explicitly considered declarations and gave a reasoned conclusion; majority held no legal error in BIA’s consideration (dissent disagreed and urged remand)
Whether the BIA applied the correct prejudice standard and whether Dorce showed prejudice from lack of notice	Dorce argues that absent timely notice he lost the opportunity to present live witness testimony that likely would have affected the discretionary balancing	Government/BIA say Dorce bore the burden to show the notice defect was "likely to have affected the outcome" and his declarations did not provide substantive, noncumulative evidence to meet that burden	Court held BIA used the correct prejudice inquiry and substantial evidence supports the finding that Dorce failed to show prejudice
Whether an alleged ex parte IJ videocall (not in record) required documentation and whether its absence prejudiced Dorce	Dorce says the IJ told him the Dec. 4 hearing was postponed in a videocall and she would provide written notice; absence of that call in the record undermines presumption of mailed notice	Government says even if the call occurred, Dorce still must show prejudice and the alleged call would not have altered the discretionary outcome	Court held absence of videocall documentation did not establish prejudice; even if the call occurred, it would not have improved Dorce's chance of relief

Key Cases Cited

Pulisir v. Mukasey, 524 F.3d 302 (1st Cir.) (prejudice standard and review of BIA decisions)
Zhou Zheng v. Holder, 570 F.3d 438 (1st Cir.) (prejudice inquiry: likely to have affected outcome)
Loubriel v. Fondo del Seguro del Estado, 694 F.3d 139 (1st Cir.) (presumption that mailed government notice is received)
Kozak v. Gonzáles, 502 F.3d 34 (1st Cir.) (distinguishing certified vs. regular mail and presumption strength)
Jianli Chen v. Holder, 703 F.3d 17 (1st Cir.) (deference to agency interpretations)
Mazariegos-Paiz v. Holder, 734 F.3d 57 (1st Cir.) (substantial-evidence review of BIA factual findings)