Santana-Gonzalez v. Atty Gen USA ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    10-22-2007
    Santana-Gonzalez v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 06-2965
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    __________
    No. 06-2965
    __________
    HAIDEE DE REGLA SANTANA GONZALEZ,
    Petitioner
    vs.
    ATTORNEY GENERAL OF
    THE UNTIED STATES,
    Respondent
    __________
    On Petition for Review of an Order of
    the Board of Immigration Appeals
    U.S. Department of Justice
    (BIA No. A97-437-427)
    Immigration Judge: Daniel Meisner
    __________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    September 20, 2007
    Before: SLOVITER, SMITH, and GARTH, Circuit Judges.
    (Opinion Filed: October 22, 2007)
    OPINION
    Garth, Circuit Judge
    In 1997, Congress amended the Immigration and
    Nationality Act (“INA”) to allow a notice of removal hearing to be
    served on an alien by regular mail, as opposed to certified mail,
    return receipt requested. In this case, an Immigration Court sent
    Petitioner Haidee de Regla Santana Gonzalez (“Petitioner”) a
    notice of hearing by regular mail, which Petitioner claims she
    never received. The questions presented in her Petition are
    essentially twofold: (1) what presumption of receipt attaches to a
    notice of hearing sent by regular mail; and (2) how an alien
    claiming non-receipt of a notice sent by regular mail can rebut that
    presumption, thereby entitling her to an evidentiary hearing on that
    claim. We will grant her Petition.
    I.
    Petitioner is a 35 year old native and citizen of Cuba. She
    arrived at Newark International Airport on November 5, 2003,
    without a valid visa or valid entry document. Upon arrival, a
    Department of Homeland Security (“DHS”) officer apprehended
    her. Petitioner then informed the officer that she feared returning
    to Cuba. As a result, the DHS paroled her into the United States.
    The DHS immediately served Petitioner with a Notice to
    Appear. The Notice to Appear charged her as removable under
    Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act
    (“INA”), 
    8 U.S.C. § 1182
    (a)(7)(A)(i)(I).1 Additionally, the Notice
    to Appear listed Petitioner’s address as “721 25th Street, Union
    City, New Jersey 07087,” which was the address she gave the DHS
    upon arrival and the residence where her uncle, his wife, and their
    son lived.
    1
    This statute renders inadmissible any alien who, at the time of
    application for admission, was not in possession of a valid
    unexpired immigrant visa, reentry permit, border crossing card,
    or other valid entry document, and a valid unexpired passport, or
    other suitable travel document. 
    8 U.S.C. § 1182
    (a)(7)(A)(i)(I)
    2
    The Notice to Appear did not provide a date for the
    Petitioner to appear before an Immigration Judge (“IJ”). Instead,
    it only ordered Petitioner to appear before an IJ in Newark, New
    Jersey, on a date “to be set” at a time “to be set.” The Notice to
    Appear also stated that Petitioner should immediately notify the
    Immigration Court “in writing” on “Form EOIR-33” of any
    address change.
    On January 7, 2004, the Immigration Court in Newark, New
    Jersey sent a Notice of Hearing to Petitioner’s Union City address.
    The Notice of Hearing stated that the Immigration Court had
    scheduled her case for a hearing on January 15, 2004. This notice
    was sent via ordinary first-class mail.
    Petitioner resided at the Union City address from her arrival
    in November 2003 until the beginning of January 2004. She then
    moved to Homestead, Florida. During her stay in Union City,
    Petitioner claims she never received the Notice of Hearing.
    Petitioner further claims that, before moving to Homestead, her
    uncle’s wife called the DHS to advise it of the Petitioner’s
    impending move.
    After moving to Homestead, Petitioner asked the Florida
    Department of Children & Families Services for assistance with
    her immigration case. According to Petitioner, a person affiliated
    with the organization called the DHS’s Newark office to advise it
    that Petitioner had moved to Homestead, Florida. Petitioner claims
    that, during her stay in Homestead, her uncle had been asked by
    Petitioner to forward any mail addressed to her in Union City to
    her new address in Homestead. According to Petitioner, she never
    received any Notice of Hearing from her uncle while in
    Homestead.
    On January 15, 2004, the Immigration Court held
    Petitioner’s removal hearing.        Petitioner did not appear.
    Accordingly, the IJ issued an in absentia order removing Petitioner
    to Cuba.
    In February 2004, Petitioner moved to Las Vegas, Nevada.
    Upon arriving in Las Vegas, Petitioner communicated with the
    Catholic Charities of Southern Nevada, as well as her present
    counsel, for assistance with her immigration case. In September
    3
    2004, Petitioner’s counsel discovered the in absentia removal
    order after calling the Executive Office of Immigration Review.
    Petitioner then filed a motion to rescind the removal order and to
    reopen her immigration case.        I n h e r mo t i o n t o r e o p e n ,
    Petitioner submitted an affidavit stating that she had not received
    the Notice of Hearing while living in Union City. The affidavit
    also stated that her uncle did not send her any Notice of Hearing
    after she moved to Florida, nor did he advise her of any notice sent
    to Petitioner at his Union City address. The IJ denied her motion
    without a hearing. The IJ found that Petitioner failed to provide
    sufficient evidence tending to establish non-receipt of the Notice
    of Hearing. Specifically, the IJ noted that the Notice of Hearing
    “was not returned as undeliverable” and that Petitioner failed “to
    provide probative evidence that tends to plausibly explain or
    confirm the claim of nondelivery.”
    Petitioner then appealed to the Bureau of Immigration
    Appeals (“BIA”). In her submission to the BIA, Petitioner argued
    that the IJ erred in holding that she failed to rebut the presumption
    of receipt of the Notice of Hearing. Petitioner also argued that,
    under Salta v. INS, 
    314 F.3d 1076
     (9th Cir. 2002), she was entitled
    to an evidentiary hearing regarding her claim of non-receipt. The
    BIA disagreed. In a written decision, the BIA affirmed the IJ’s
    holding that Petitioner failed to rebut the presumption of effective
    delivery. Specifically, the BIA relied on Matter of Grijalva, 
    21 I&N Dec. 27
     (BIA 1995), and held that the Notice of Hearing was
    entitled to a “presumption of effective delivery.” The BIA also
    rejected Petitioner’s claim that she was entitled to an evidentiary
    hearing regarding non-receipt of the notice. On this point, the BIA
    stated:
    Finally, while [Petitioner] asserts that her
    relatives forwarded all her mail to her in Florida,
    but did not forward the Notice of Hearing, she
    has failed to provide an affidavit from them so
    stating.
    This Petition for Review timely followed. The Petition,
    among other things, sought a reversal of the BIA’s order, an
    order rescinding and reopening removal proceedings, and an
    order remanding those proceedings to the BIA with instructions
    4
    to remand to the IJ.
    II.
    We exercise jurisdiction to review the BIA’s final order of
    removal under Section 242(a) of the INA, 
    8 U.S.C. § 1252
    (a).
    Because the BIA adopted the findings of the IJ and also
    commented on the sufficiency of the IJ’s determinations, this
    Court reviews the decisions of both the BIA and the IJ. See Xie
    v. Ashcroft, 
    359 F.3d 239
    , 242 (3d Cir. 2004). We review these
    decisions under the highly deferential “abuse of discretion”
    standard. INS v. Abudu, 
    485 U.S. 94
    , 105 (1988); Guo v.
    Ashcroft, 
    386 F.3d 556
    , 562 (2004).              As such, these
    determinations “‘will not be disturbed unless they are found to be
    arbitrary, irrational, or contrary to the law.’” Guo, 
    386 F.3d at 562
     (quoting Tipu v. INS, 
    20 F.3d 580
    , 582 (3d Cir. 1994)).
    III.
    The INA allows an IJ to hold removal proceedings in
    absentia if the alien was provided proper written notice of the
    proceeding. 8 U.S.C. § 1229a(b)(5)(A). Under the INA, written
    notice must be “given in person to the alien (or, if personal
    service is not practicable, through service by mail to the alien or
    to the alien’s counsel of record, if any).” 
    8 U.S.C. § 1229
    (a)(1).
    An in absentia removal order may be rescinded, though, if the
    alien demonstrates that (1) she was in Federal or State custody
    and her failure to appear was through no fault of her own, (2) she
    “did not receive notice” of the hearing, or (3) her failure to
    appear was because of exceptional circumstances. 8 U.S.C. §
    1229a(b)(5)(C). Our focus here is on the second means of
    rescinding an in absentia removal order: non-receipt of notice.
    As the word “receive” indicates, the key question in reopening a
    removal proceeding for lack of notice is not whether the
    Immigration Court properly mailed the notice to the alien, but
    whether the alien actually received the notice. Lopes v. Gonzales,
    
    468 F.3d 81
    , 83 (2d Cir. 2006) (citing Joshi v. Ashcroft, 
    389 F.3d 732
    , 736 (7th Cir. 2004)).
    We turn first to the appropriate standard to be employed
    in determining the receipt of a notice of hearing sent by regular
    ordinary mail.
    5
    A.
    The IJ found Petitioner’s affidavit insufficient grounds for
    reopening her case, stating that Petitioner failed to “provide
    probative evidence that tends to plausibly explain or confirm the
    claim of nondelivery.” The BIA similarly found Petitioner’s
    affidavit insufficient, holding that she had “not overcome the
    presumption of effective delivery,” citing to its own precedent in
    Matter of Grijalva, 
    21 I&N Dec. 27
     (BIA 1995).
    The presumption derived from Matter of Grijalva
    involved service of a notice of hearing by certified mail. Prior to
    1997, a notice of removal hearing could only be served by
    certified mail, return receipt requested.               8 U.S.C. §
    1252b(a)(2)(A) (“In deportation proceedings under section 1252
    of this title, written notice ... shall be given in person to the alien
    (or, if personal service is not practicable, such notice shall be
    given by certified mail to the alien or to the alien’s counsel of
    record, if any).”) (repealed, effective 1997); 8 U.S.C. §
    1252b(f)(1) (“The term ‘certified mail’ means certified mail,
    return receipt requested.”) (repealed, effective 1997).2 In
    2
    This change was apparently aimed at making in absentia orders
    easier to obtain and easier to enforce in the face of motions to
    reopen. For instance, in remarks documenting the change, which
    were contained in Section 304 of the Illegal Immigration Reform
    and Immigrant Responsibility Act of 1996, the House Judiciary
    Committee commented:
    [T]here are often protracted disputes concerning
    whether an alien has been provided proper notice
    of a proceeding. This impairs the ability of the
    government to secure in absentia deportation
    orders in cases where aliens fail to appear for
    their hearings; in many such cases, aliens will
    petition to reopen their hearings on the grounds
    that they never received proper notice.
    Section 304 addresses these problems with a
    6
    Grijalva, the BIA held:
    [I]n cases where service of a notice of a
    deportation proceeding is sent by certified mail
    through the United States Postal Service and
    there is proof of attempted delivery and
    notification of certified mail, a strong
    presumption of effective service arises. There is
    a presumption that public officers, including
    Postal Service employees, properly discharge
    their duties. A bald and unsupported denial of
    receipt of certified mail notices is not sufficient to
    support a motion to reopen to rescind an in
    absentia order.... (emphasis added)
    This presumption of effective service may be overcome by
    the affirmative defense of nondelivery or improper delivery by the
    Postal Service. However, in order to support this affirmative
    defense, the respondent must present substantial and probative
    evidence such as documentary evidence from the Postal Service,
    third party affidavits, or other similar evidence demonstrating that
    number of new requirements. First, it requires the
    INS to establish a central address file to
    accurately record address information, including
    changes provided by aliens. Second, it provides
    that service by mail of the required notice of
    hearing is sufficient if there is proof of delivery to
    the most recent address provided by the alien.
    Third, it authorizes the immigration judge to enter
    an in absentia order if the alien fails to appear
    provided that there is proof of attempted delivery
    at this address. Fourth, it allows an alien to
    rescind an in absentia order only in the case of
    specified exceptional circumstances or if the alien
    demonstrates that notice was not received
    notwithstanding the alien’s compliance with the
    notice of address requirements.
    H.R. Rep. No. 104-469, at 159 (1996).
    7
    there was improper delivery.
    Matter of Grijalva, 21 I&N Dec. at 37 (internal citation
    omitted). Accordingly, Grijalva stands for the proposition that a
    “strong presumption” of effective service of a notice of hearing
    arises when the notice is sent by certified mail, and this
    presumption may only be overcome by presenting “substantial and
    probative evidence.”
    Since 1997, however, a notice of hearing may be served by
    regular mail. 
    8 U.S.C. § 1229
    (a)(1). In other contexts, we have
    long recognized a presumption that ordinary regular mail properly
    sent is presumed to be received. See, e.g., Welch & Forbes Inc. v.
    Cendant Corp. (In re Cendant Corp. Prides Litig.), 
    311 F.3d 298
    ,
    304 (3d Cir. 2002) (“The common law has long recognized a
    presumption that an item properly mailed was received by the
    addressee.”) (citations omitted). Such a presumption in the case of
    ordinary regular mail is to be contrasted with the “strong
    presumption” required in Grijalva in the case of certified mail,
    particularly since certified mail carries with it extra assurances of
    effective delivery that are absent when letters are sent via ordinary
    means. The difference in the strength of presumption, and in its
    effect when applied, is a difference which we recognize and
    approve, as have other courts of our sister circuits. Lopes v.
    Gonzales, 
    468 F.3d 81
    , 85 (2d Cir. 2006); Nibagwire v. Gonzales,
    
    450 F.3d 153
    , 156-57 (4th Cir. 2006); Joshi v. Ashcroft, 
    389 F.3d 732
    , 736-37 (7th Cir. 2004); Ghounem v. Ashcroft, 
    378 F.3d 740
    ,
    744-45 (8th Cir. 2004); Salta v. INS, 
    314 F.3d 1076
    , 1079 (9th Cir.
    2002).
    The Ninth Circuit in Sembiring v. Gonzales, --- F.3d ---,
    No. 04-74076, 
    2007 U.S. App. LEXIS 20211
     (9th Cir. Aug. 24,
    2007), relied upon its holding in Salta that “a weaker
    presumption” of effective service applies to service by regular
    mail. The court stated as follows:
    Under Salta, less evidence was required to
    overcome the presumption of effective service
    than under Grijalva. This lower evidentiary
    standard makes good sense. If a letter is sent by
    certified mail, there is a paper trail in Postal
    Service records showing both mailing and receipt
    8
    (or non-receipt). By contrast, there is no Postal
    Service paper trail for regular mail. There is
    seldom any administrative paper trail either, other
    than a copy of the notice in question and,
    sometimes, a copy of the envelope in which the
    notice was sent.
    As we previously held in Salta, “some of the
    Grijalva-Arrieta proof requirements (e.g.,
    documentary evidence from the Postal Service,
    third party affidavits indicating improper
    delivery, etc.) ... clearly have no application under
    a regular mail regime.” [Salta,] 
    314 F.3d at 1080
    .
    If the evidence described in Grijalva “were the
    standard under the current statute, we would
    leave respondents virtually without recourse to
    rebut the presumption of effective delivery.”
    Ghounem, 387 F.3d at 744. Such a result would
    defeat the purpose of Congress’s express
    authorization for rescission of in absentia removal
    orders when the alien “did not receive notice.” 8
    U.S.C. 1229a(b)(5)(C)(ii).
    Sembiring, supra at *17-18. We now hold, as do those courts,
    that Grijalva’s strict evidentiary standard – a strong presumption
    – applies only when a notice from an Immigration Court or the
    INS (or Department of Homeland Security) is sent by certified
    mail, and that a weaker presumption of receipt applies when such
    a notice is sent by regular mail.
    B.
    The second issue before us is what an alien, such as
    Petitioner, must do to demonstrate that she did not receive a
    notice of hearing.3 In her motion to reopen, Petitioner essentially
    3
    In denying Petitioner’s motion to reopen, the IJ stated, “Even
    ordinary mail delivery entails a presumption of receipt provided the
    letter is properly addressed.” In the Matter of Haidee de Regla
    Santana-Gonzalez, File No. A 97 437 427 (EOIR June 9, 2005)
    9
    submitted three items to the IJ: (1) a brief, which included a
    statement of facts and legal argument; (2) an affidavit from
    herself; and (3) an affidavit from her counsel, which attached her
    entire immigration file obtained from the DHS. Petitioner’s
    affidavit was the only piece of evidence directly supporting her
    claim of non-receipt. It stated:
    10. During the two months I resided in Union City, New
    Jersey, I did not receive a Notice of Hearing advising me
    of the date to appear before the Immigration Court in
    Newark, New Jersey.4
    12. In January of 2004, I moved to 
    15023 SW 302
    ,
    Homestead, FL 33033. But, my uncle continued to reside
    at 721 25th Street, Union City, NJ 07087 with his wife
    and son.
    (Meisner, I.J.) (citing Rosenthal v. Walker, 
    111 U.S. 185
     (1894)).
    Thereafter, as we recite in the text above, the BIA affirmed the IJ
    citing Matter of Grijalva, 
    21 I&N Dec. 27
     (BIA 1995). As we
    have recognized, the presumption in Grijalva is a far stronger
    presumption of effective delivery than the presumption of effective
    delivery by ordinary regular mail. The BIA having applied the
    stronger [certified mail] presumption rather than the weaker
    [regular mail] presumption, understandably leaves us uncertain as
    to the quality and sufficiency of evidence now required to rebut the
    presumption of effective delivery of a hearing notice when the
    addressee claims non-receipt. The application of two different
    standards by the IJ and the BIA clouds the principle of which
    presumption applies to Petitioner’s evidence.          This is so
    particularly since the 1894 Supreme Court precedent cited by the
    IJ could not and did not take into account the more recent statutes
    which we have discussed dealing with certified and regular mail
    delivery. To the extent that the BIA applied an incorrect
    presumption under Grijalva, the BIA did not properly exercise its
    discretion. See Tipu v. INS, 
    20 F.3d 580
    , 582 (3d Cir. 1994)
    (“Discretionary decisions of the BIA irrational, or contrary to
    law.’”).
    4
    The Petitioner misnumbered the paragraphs in her affidavit,
    omitting the number eleven.
    10
    13. My uncle, his wife and son regularly sent me mail that
    was addressed to me at 721 25th Street, Union City, NJ
    07087.
    14. My uncle, his wife and son did not send me or advise
    me of any mail from the Immigration Court or the
    Department [of Homeland Security] advising me to appear
    in Court on January 15, 2004.
    Has the Petitioner here rebutted this weaker presumption
    of receipt which attends ordinary regular mail? The Ninth
    Circuit’s decision in Salta v. INS, 
    314 F.3d 1076
     (9th Cir. 2002),
    is instructive. The facts of Salta are similar to those at issue here.
    In Salta, the issue before the court was: “[H]ow an alien may
    meet the burden of demonstrating lack of notice under the new
    statute,” which allows service by ordinary mail. Salta v. INS, 
    314 F.3d 1076
    , 1079 (9th Cir. 2002). The Ninth Circuit held, as we
    do, that service of such notices by ordinary mail is not entitled to
    the same presumption as service by certified mail. 
    Id.
     The Court
    then held:
    Where a petitioner actually initiates a proceeding
    to obtain a benefit, appears at an earlier hearing,
    and has no motive to avoid the hearing, a sworn
    affidavit from [petitioner] that neither she nor a
    responsible party residing at her address received
    the notice should ordinarily be sufficient to rebut
    the presumption of delivery and entitle
    [petitioner] to an evidentiary hearing to consider
    the veracity of her allegations.
    
    Id.
     Thus, under Salta, submission of an affidavit by an alien
    claiming non-receipt of a notice of hearing by him or her, or a
    responsible person residing at her address, along with
    circumstantial evidence corroborating the alien’s claims of non-
    receipt may ordinarily be sufficient to raise a factual issue
    requiring an evidentiary hearing before the IJ.
    After Salta, the Ninth Circuit further clarified the required
    evidentiary showing to entitle an alien to a hearing. In
    Sembiring, an alien, Sembiring, was ordered deported in absentia
    after she claimed that she had failed to receive a notice
    11
    rescheduling her deportation hearing. When Sembiring appeared
    on the original date of her hearing, she was notified that she had
    already been ordered deported six days earlier. Sembiring then
    wrote a letter to the IJ claiming non-receipt of the rescheduling
    notice. The letter was signed, but was neither sworn nor verified.
    Her letter was construed as a motion to reopen. The IJ denied
    this motion mainly because Sembiring failed to provide a sworn
    statement that she never received the notice rescheduling her
    hearing. The BIA affirmed.
    Sembiring then applied Salta and held that the IJ and BIA
    abused their discretion by failing to reopen her proceedings.
    Specifically, the court noted that while “[w]e noted in Salta that
    an affidavit is one way to establish non-receipt of a notice sent by
    regular mail ... a sworn affidavit is not always necessary.”
    Sembiring, 
    2007 U.S. App. LEXIS 20211
    , at *23. The court
    further stated that “[t]he test for whether an alien has produced
    sufficient evidence to overcome the presumption of effective
    service by regular mail is practical and commonsensical rather
    than rigidly formulaic.” 
    Id. at * 18
    .
    The Sembiring court noted that Sembiring brought herself
    to the government’s attention by seeking asylum, thereby
    showing that she did not have a motive to avoid the hearing. 
    Id. at *18-21
    . Furthermore, the record showed that she actually
    appeared at the originally scheduled hearing. 
    Id. at *21-22
    .
    Moreover, the government’s evidence did not clearly show that
    it was actually mailed to Sembiring’s address. 
    Id. at *22-23
    .
    Nevertheless, based on these facts, the Ninth Circuit held that “a
    sworn affidavit was not required to establish that Sembiring did
    not receive notice....” 
    Id. at 23
    . Instead, the court stressed that:
    [T]he inquiry contemplated by Salta is a practical
    one under which many forms of evidence are
    relevant. If there is enough evidence to overcome
    the presumption of effective service without a
    sworn affidavit, the absence of such affidavit is
    not fatal to petitioner’s [motion to reopen for
    non-receipt of notice].
    
    Id. at *23
    . Therefore, the court held that Sembiring had
    sufficiently rebutted the presumption of receipt and vacated the
    12
    in absentia removal order.
    Petitioner, like Sembiring, may not have had a motive to
    avoid the scheduled hearing. She had little to gain by failing to
    appear at the hearing. Moreover, as a native and citizen of Cuba,
    she was entitled to apply for adjustment of status under the
    Cuban Adjustment Act, Pub. L. No. 89-732, Stat. 1161 (1966)
    (reproduced as historical note to 
    8 U.S.C. § 1255
    ), which would
    allow her to apply for permanent residency after only one year of
    residing in the United States.
    Furthermore, circumstantial evidence in the record
    disclosed that Petitioner at all times sought to have a hearing to
    adjust her status. While Petitioner had not filed a Form EOIR-33
    notifying the Immigration Court of her address change, she had
    sought to acquaint the DHS with her change of address by having
    her uncle’s wife, along with the Florida Department of Children
    & Families Services and the Catholic Charities of Southern
    Nevada, inform the DHS of her change of address. Petitioner
    also took affirmative action to have her counsel inquire as to her
    immigration status. It was only after her counsel investigated her
    status that she learned that an in absentia order had been issued
    removing her. As a result of her counsel’s actions, counsel’s
    affidavit attached the file that he had received through his
    Freedom of Information Act (FoIA) request. That file included
    the additional information which is summarized above. These
    attempts to communicate with the DHS, as reflected by the
    record, additionally support Petitioner’s claim that she had not
    received notice of any hearing and might now suffice to rebut the
    presumption of effective notice which we announce today.
    We do not wish to imply that, based on these
    circumstances, the IJ should have rescinded the in absentia order
    and reopened Petitioner’s removal hearing. Indeed, it is
    significant that petitioner failed to follow the clear requirement
    that she give written notice of any change in her address, a fact
    that needs to be considered by the IJ in making the ultimate
    decision. The facts recited above, though, do appear relevant in
    determining whether Petitioner has rebutted the presumption of
    receipt of the Notice of Hearing.
    In light of the fact that our decision today adopts a less
    13
    stringent standard for determining the presumption of receipt for
    notices of hearing sent by regular mail rather than the strong
    presumption employed by the BIA, see Grijalva, 
    21 I&N Dec. 27
    , and thus establishes a new and different standard when
    regular mail is used, we will vacate the BIA’s order of May 9,
    2005. Additionally, we will remand to the BIA with directions
    to reopen the in absentia order of removal and direct the BIA to
    instruct the IJ on remand to apply the less stringent presumption
    to the evidence which Petitioner may produce.5 See Adarand
    Constructors v. Pena, 
    515 U.S. 200
    , 237 (1995) (remanding to
    lower court for application of new standard to facts presented).
    5
    In view of our opinion announcing a standard – a standard for
    regular mail notices – which in this case requires a remand to the
    IJ, we have no need to address the other arguments made by
    Petitioner, both of which involve the non-receipt of the hearing
    notice.
    14