Wednesday, October 24, 2007

Santana Gonzalez: Weak Presumption For Court's Regular Mail For Motions To Reopen

In Santana Gonzales v. Keisler (3d Cir. Oct. 22, 2007), the Third Circuit joined a large number of circuit courts in ruling that the government does not deserve a strong presumption that an item it mailed by regular mail actually reached the immigrant.

This issue comes up frequently where the government starts a court case against an immigrant, the court mails it by regular mail, and the immigrant argues that he never received it. If the immigrant never received the notice, then the immigrant should be able to reopen the case. In the old days, the court would mail the initial notice by certified mail and it was clear that a mailings by certified mail deserve a strong presumption of actual receipt.

But in 1997, the court (with Congress's approval) changed to sending the initial notice by regular first-class mail. The Third Circuit agrees with the Second Circuit, Fourth Circuit, Fifth Circuit, Seventh Circuit, Eighth Circuit, and Ninth Circuit that sending something by regular mail does not deserve the same strong presumption of receipt as when you mail something by certified mail.

Therefore, if there is an affidavit that the person never received the item mailed despite arrangements to receive incoming mail and there are circumstantial details suggesting the person had no reason to avoid a known court date, the immigration judge must at the very least hold an evidentiary hearing on the issue of whether he got the notice.

In this case, a Cuban woman moved away from her uncle but arranged for the uncle to keep forwarding her mail.

The Third Circuit noted many helpful details that suggested she never received the initial mailing: she made arrangements to have mail forwarded but never got the notice, as a Cuban she would be eligible for a green card after one year and therefore had no motive to avoid appearing in court, she actually contacted a Catholic Charities in Florida to try to let the government know of her changed address, and she hired a lawyer some time later to try to figure out what was happening with her immigration status.

Immigration Judge Daniel Meisner and the BIA erred by ruling that those details were overcome by a strong presumption of receipt of the item sent by regular mail. Instead, the immigration judge must hold an evidentiary hearing to dig deeper into the issue.


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