Salta v. INS: 9th Circuit Remands Motion to Reopen in Absentia Hearing under IIRIRA

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

SALTA V. INS: 9TH CIRCUIT REMANDS MOTION TO REOPEN IN ABSENTIA HEARING UNDER IIRIRA
Immigrants' Rights Update, Vol. 17, No. 2, April 8, 2003

The Ninth Circuit Court of Appeals has reversed and remanded a case in which a woman was ordered removed in an in absentia removal hearing. In reversing the Board of Immigration Appeals, the court concluded that under section 240 of the Immigration and Nationality Act, individuals claiming that they did not receive a hearing notice have a lighter evidentiary burden when seeking to reopen an in absentia hearing than was the case in deportation proceedings prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

The case before the Ninth Circuit was that of Regina Salta, who had voluntarily requested that the Immigration and Naturalization Service place her in removal proceedings so that she could apply for cancellation of removal. Salta appeared at her initial hearing before the immigration judge but was told the hearing would be continued because the court did not yet have her file. According to the INS, the agency sent a subsequent hearing notice, but neither Salta nor her counsel appeared for the continued hearing. At that hearing, the IJ ordered her removed.

INA sec. 240 provides that a respondent who receives proper written notice of a removal hearing but fails to attend the hearing must be ordered removed in absentia. The respondent may move to reopen the case and have such an order rescinded if his or her absence from the hearing was due to "exceptional circumstances" (defined as serious illness or the death of a family member), if the respondent can show that he or she did not receive notice of the hearing, or if the respondent can show that he or she was in custody and, through no fault of his or her own, could not attend the hearing. Salta claimed that she had not received notice of the hearing.

In moving to reopen her case, Salta did not file any documentation supporting her claim that she had not received notice of the continued hearing. Because Salta did not present evidence demonstrating that the INS notice had been improperly delivered, the IJ denied her motion, and the BIA affirmed the denial. In affirming the denial of Salta's motion, the BIA relied on In re: Grijalva, 21 I. & N. Dec. 27 (BIA 1995), a case that applied former INA sec. 242(B), a statute governing deportation proceedings under pre-IIRIRA law. In Grijalva, the BIA stated that a presumption exists that public officers, including postal employees, properly discharge their duties. And in cases in which a hearing notice is sent by certified mail via the U.S. Postal Service and proof exists that delivery was attempted and the addressee was left notification of the attempted delivery of the certified mail, there is a strong presumption of effective service. Such a presumption can be overcome with proof of non- or improper delivery. However, to support such a defense, the individual must present substantial, probative evidence from the Postal Service, third party affidavits, or other similar evidence showing that delivery was improper.

Noting that no court had yet considered the evidentiary requirements for establishing, in the context of removal proceedings, that a respondent did not receive the required hearing notice, the Ninth Circuit pointed out that under the pre-IIRIRA statute notices had to be delivered by certified mail. The current statute requires only that the individual receive written notice. According to the court, while it is still proper to presume that postal officers discharge their duties properly, sending notice by regular mail does not raise the same strong presumption of proper delivery as sending it by certified mail would. Moreover, the court indicated that the requirements under Grijalva make sense only if certified mail is employed, because only then does documentary evidence exist to show whether or not notice was actually delivered.

The court was also persuaded by the fact that, since Salta herself initiated the proceeding, she had every reason to appear for her hearing. The court therefore held that the IJ and the BIA had abused their discretion by applying the Grijalva evidentiary requirements to Salta's motion to reopen. Accordingly, the court remanded the case to the BIA with instructions to remand to the IJ to allow both Salta and the INS to supplement the case record and to conduct an evidentiary hearing to determine whether Salta should be permitted to reopen her application for cancellation of removal.

Salta v. INS, 314 F.3d 1076 (9th Cir. 2002).