Martin Torres Hernandez v. Loretta Lynch, 2016 U.S. App. LEXIS 10392

Torres Hernandez, a Mexican national, was charged via an NTA (regular mail) on Oct 14, 2009 and a hearing notice (regular mail) was sent Oct 29, 2009 for a Jan 13, 2010 hearing at the same Houston address.
He did not appear; the IJ ordered him removed in absentia on Jan 13, 2010.
In Jan 2014 he moved to reopen, submitting an affidavit stating he never received notice and recounting that ICE searched for him at his sister’s house in 2013, after which he hired counsel who filed a FOIA that revealed the 2010 in absentia order.
He also submitted a change-of-address form with his motion showing a different, later address; neither the NTA nor the hearing notice was returned as undelivered.
The IJ denied reopening; the BIA affirmed, finding the lone evidence was Torres Hernandez’s uncorroborated denial of receipt and that the presumption of delivery for regular mail was not rebutted.
The Fifth Circuit granted review, held the BIA abused its discretion for failing to consider other relevant evidence (FOIA inquiry, change-of-address) that could rebut the weaker presumption for regular-mail service, and remanded.

Issue	Torres Hernandez's Argument	Government's Argument	Held
Whether the affidavit and related evidence rebut the presumption of receipt for notices sent by regular mail	He swore he never received the NTA/hearing notice, hired counsel who filed a FOIA and only learned of the in absentia order in 2013, and filed a change-of-address — showing he did not abscond	Regular-mail service raises a presumption of receipt; notices were mailed to the same address and not returned, and Torres offered only an uncorroborated denial of receipt	The BIA abused its discretion by failing to consider all relevant evidence (FOIA inquiry, change-of-address, lack of evidence of flight). Remanded for the BIA to weigh that evidence; no finding whether rebuttal succeeded.

Joshi v. Ashcroft, 389 F.3d 732 (7th Cir. 2004) (affidavit credibility matters in rebutting mailed-notice presumption)
Maknojiya v. Gonzales, 432 F.3d 588 (5th Cir. 2005) (regular-mail service produces a weaker presumption; uncorroborated affidavits may suffice to rebut)
Ghounem v. Ashcroft, 378 F.3d 744 (8th Cir. 2004) (in failed regular-mail delivery cases, the applicant’s denial of receipt can be the only available evidence)
Santana Gonzalez v. Attorney General of U.S., 506 F.3d 274 (3d Cir. 2007) (hiring counsel and filing FOIA to inquire about status can be circumstantial evidence rebutting notice)
Lopes v. Gonzales, 468 F.3d 81 (2d Cir. 2006) (prompt submission of change-of-address can indicate an alien is not an absconder and supports nonreceipt claims)
Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (describes notice requirements and standard of review for BIA factual findings)