Sanchez v. Holder
2010 U.S. App. LEXIS 24818
| 6th Cir. | 2010Background
- Sanchez, a Mexican citizen, entered the U.S. illegally in 1991 and was placed in deportation proceedings after an OSC in May 1996.
- In May 1997, a hearing notice was mailed by certified mail to Sanchez’s provided address (316 S. Dean Street, Adrian, Michigan 49221) for a July 8, 1997 hearing and was later marked undeliverable as addressed–forwarding order expired.
- Sanchez failed to appear at the hearing; an in absentia deportation order was entered against him.
- Nearly 11 years later, Sanchez was arrested and moved to reopen his deportation proceedings; the IJ denied reopening as untimely and for lack of reasonable cause for nonappearance.
- The BIA affirmed, holding that Sanchez had not rebutted a strong presumption of receipt from proper certified-mail mailing to his last address and that the motion to reopen was untimely.
- This court reviews the BIA’s decision for abuse of discretion and upholds the BIA’s interpretation of the notice and timeliness prerequisites under the INA as it stood via §1252b (1996).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the motion to reopen improper due to notice | Sanchez contends he did not receive proper notice. | BIA correctly found proper notice and a strong presumption of receipt from certified mail. | BIA did not abuse discretion; notice was proper and presumption unrebutted. |
| Was the motion to reopen untimely | N/A (Sanchez argued notice issues as basis to reopen). | Motion to reopen untimely under §1003.23(b)(4)(iii)(A)(2) absent exceptional circumstances. | Yes, the motion to reopen was untimely. |
Key Cases Cited
- Matter of Grijalva, 21 I. & N. Dec. 27 (BIA 1995) (strong presumption of receipt when certified mail is used)
- Ba v. Holder, 561 F.3d 604 (6th Cir. 2009) (burden to show current address; evidentiary standard for notice)
- Lopes v. Gonzales, 468 F.3d 81 (2d Cir. 2006) (no actual receipt required when notice properly mailed)
- Santana Gonzalez v. Att'y Gen. of the United States, 506 F.3d 274 (3d Cir. 2007) (distinguishes certified vs regular mail presumptions)
- Arrieta v. INS, 117 F.3d 429 (9th Cir. 1997) (notice delivery not required to be actual receipt for in absentia)
- Ghounem v. Ashcroft, 378 F.3d 740 (8th Cir. 2004) (certified mail protections justify strong presumption of effectiveness)
- In re G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001) (Notices and address obligations in deportation proceedings)