Saturday, February 04, 2006

Decision Vacated in "She-says versus the BIA-says" Case (not precedential)

Jumaev v. Gonzales
Nos: 04-1555 & 04-3470
Decided Jan. 30, 2006 (Filed Apr. 30, 2005, so it took 9 months to decide the case)
Not Precedential

"She-says versus BIA-says" -- the lawyer says she mailed a notice of appearance, which would require the IJ to send her a copy of any decision in the case. The BIA says she never mailed it.

She says she even has a copy of the notice in her own file. The BIA says she never mailed it so it is irrelevant whether she still has a copy of it in her file.

The BIA concluded without any explanation that it examined the package of what was submitted and concluded she never mailed the notice of appearance. The Third Circuit ruled that "without an explanation from the BIA of how it determined that the 'package' it examined was the complete package submitted by Aristova, we do not find substantial evidence under the circumstances of this case that the entry of appearance was not filed."

The Third Circuit also prodded the BIA to analyze how the motion included in the package a cover letter that showed her name and address, how the motion to reopen cntained her name and address, and how the package included an index that listed a notice of appearance as being included in the package. Ah the joys of administrative litigation...


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