Sunday, March 02, 2008

Bruli (not precedential): Evidence of Not Receiving Notice Includes Pursuing Asylum Claim

In Bruli v. Mukasey, No. 05-5302 (3d Cir. Feb. 5, 2008), the Third Circuit held that IJ Eugene Pugliese and the BIA both erred by not giving careful consideration to evidence that someone who was seeking asylum did not receive notice of the hearing that she failed to appear for.

Proof of mailing by regular mail gives rise to a presumption that the person received it, but the Third Circuit insists that courts give people an opportunity to provide contrary evidence that they never actually received it.

In this case, she said she did not receive the notice, submitted affidavits from her and her attorney, had been pursuing an asylum claim which suggests she had good reason to attend if only she knew about it, and after filing the motion to reopen even filed a change of address form for moving to another address.

IJ Pugliese erred by saying that it was insufficient for her just to say she never got the notice. She had offered much more evidence than just her own words that she never got it -- the Third Circuit remanded the case to the BIA so that it could apply the fairly recently-announced standard that people can try to rebut a presumption of receiving a notice that the court sent by regular mail.


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