Singh v. Sessions
683 F. App'x 686
| 10th Cir. | 2017Background
- Singh, an Indian national, illegally entered the U.S. on March 10, 2014, was detained, and served a Notice to Appear alleging inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i).
- He was transferred to Utah; hearings were scheduled and rescheduled; after release on bond he gave a Turlock, California address to officials.
- The government mailed a Notice of Hearing for August 7, 2014 to the Turlock address; the notice (and later the in absentia removal order) were not returned as undeliverable.
- Singh failed to appear at the August 7 hearing; the IJ entered an in absentia removal order and mailed the order to his Turlock address.
- Singh moved to reopen and to rescind the in absentia order claiming he never received notice of the Utah hearing; the IJ denied the motion and the BIA affirmed, finding mailing to the address of record created a presumption of receipt which Singh’s affidavit failed to rebut.
- The Tenth Circuit denied Singh’s petition for review, rejecting his claim that lack of actual notice warranted reopening; it also denied his in forma pauperis request as moot and ordered payment of appellate fees.
Issues
| Issue | Singh's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Singh can reopen an in absentia removal order by showing he did not receive notice | Singh: he never received notice that the Phoenix hearing was moved to Utah and thus lacked meaningful opportunity to appear | Gov: notice mailed to the address of record raises a presumption of receipt that Singh must rebut | Held: Mailing to the address of record raised a presumption of receipt; Singh’s self‑serving affidavit failed to rebut it, so reopening denied |
| What quantum of evidence is required to overcome the presumption of receipt | Singh: his affidavit denying receipt is sufficient | Gov: affidavit conclusory; alien must submit affidavits/evidence beyond bare denial | Held: Bare, self‑serving denial insufficient; must provide corroborating evidence or detailed affidavits to rebut presumption |
| Whether the BIA abused its discretion in denying the motion to reopen | Singh: BIA erred and provided no meaningful explanation; decision deprived him of relief opportunity | Gov: BIA applied correct legal standard and provided rationale tied to evidence of mailing | Held: No abuse of discretion; BIA’s reasoning adequate and consistent with precedent |
Key Cases Cited
- Infanzon v. Ashcroft, 386 F.3d 1359 (10th Cir. 2004) (standard for reviewing BIA denial of motion to reopen and circumstances constituting abuse of discretion)
- Gurung v. Ashcroft, 371 F.3d 718 (10th Cir. 2004) (mailing notice to address of record raises presumption of receipt; alien bears burden to overcome presumption)
- Thongphilack v. Gonzales, 506 F.3d 1207 (10th Cir. 2007) (affirming requirement that motions to reopen include affidavits or evidentiary materials to rebut presumption of receipt)
- Sajidi v. Holder, [citation="438 F. App'x 693"] (10th Cir. 2011) (unpublished) (noting conclusory affidavits insufficient to rebut mailing/receipt presumption)