Nguhlefeh Njilefac v. Garland, 992 F.3d 362

Njilefac, a Cameroonian asylum applicant, lost before an immigration judge and appealed to the Board of Immigration Appeals (BIA).
The BIA mailed a briefing schedule, the hearing transcript, and the IJ’s written decision to counsel’s address of record; counsel alleges she never received those items and therefore did not file a brief.
A few months later the BIA affirmed the IJ’s decision (sent to the same address), and counsel received that decision.
Counsel filed a motion for reconsideration alleging due-process prejudice from nonreceipt and submitted two signed declarations (one from counsel, one from an attorney who shared the same mailbox) stating nonreceipt; the declarations said they were made “under penalty of perjury” but did not state the contents were “true and correct,” and the officemate’s declaration used phrases implying lack of personal knowledge about staff handling.
The BIA denied the motion, applying the presumption that mailed documents are delivered (documents were not returned undelivered and prior mailings to the same address were received).
The Fifth Circuit reviews denial of reconsideration for abuse of discretion and denied Njilefac’s petition, holding the declarations failed to rebut the presumption of delivery.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s declarations rebut the presumption that mailed BIA materials were delivered	Declarations show counsel never received the briefing schedule, transcript, or IJ decision, so presumption is rebutted and reconsideration warranted	Presumption of delivery applies; the declarations are insufficient (not sworn in full §1746 form; do not exclude staff receipt); mail was not returned undelivered and prior mail reached same address	Held: Declarations insufficient to rebut presumption; BIA did not abuse discretion in denying motion
Whether declarations labeled “under penalty of perjury” but not stating “true and correct” qualify as sworn affidavits under 28 U.S.C. § 1746	Declarations should be treated as equivalent to affidavits and credited	Declarations fail to meet § 1746 formalities and lack full indicia of personal knowledge	Held: Court did not decide the § 1746 question; assumed arguendo they were affidavits but concluded petitioner still failed to rebut presumption
Whether the BIA abused its discretion in denying the motion for reconsideration (due-process claim)	Denial was erroneous because counsel lacked necessary materials to prepare the appeal	Denial was within discretion given presumption of delivery and record evidence showing delivery likely	Held: No abuse of discretion; denial affirmed

Kucana v. Holder, 558 U.S. 233 (jurisdiction to review BIA denial of motions)
INS v. Doherty, 502 U.S. 314 (1992) (motions to reopen/reconsider reviewed for abuse of discretion)
Nunez v. Sessions, 882 F.3d 499 (5th Cir. 2018) (presumption that mailed documents are delivered)
In re Eagle Bus Mfg., Inc., 62 F.3d 730 (5th Cir. 1995) (denial of receipt alone usually insufficient to rebut presumption of notice)
Mauricio-Benitez v. Sessions, 908 F.3d 144 (5th Cir. 2018) (presumption of delivery applies despite affidavit of nonreceipt)
Enriquez-Gutierrez v. Holder, 612 F.3d 400 (5th Cir. 2010) (no realistic possibility outcome would differ supports affirmance)