IDANIA PEREZ-PORTILLO V. MERRICK GARLAND ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 20-73486
IDANIA YAMILETH PEREZ-
PORTILLO; STEFANI
Agency Nos.
ABIGAIL AREVALO-PEREZ,
A201-413-254
Petitioners,
A201-413-253
v.
OPINION
MERRICK B. GARLAND,
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 16, 2022
San Francisco, California
Filed December 30, 2022
Before: Jay S. Bybee, Consuelo M. Callahan, and Daniel P.
Collins, Circuit Judges.
Opinion by Judge Callahan
2 PEREZ-PORTILLO V. GARLAND
SUMMARY *
Immigration
Granting the petition for review that Idania Yamileth
Perez-Portillo and her minor daughter filed from the Board
of Immigration Appeals’ dismissal of Perez-Portillo’s
appeal from an Immigration Judge’s denial of her motion to
reopen immigration proceedings in which she and her
daughter were removed in absentia, and remanding, the
panel held that the IJ should have determined the credibility
of Perez-Portillo’s claims of non-receipt of her hearing
notice in light of all the circumstantial and corroborating
evidence in the record.
When Perez-Portillo failed to appear at her removal
hearing, an IJ ordered her and her daughter removed in
absentia. Under 8 U.S.C. § 1229a(b)(5)(C)(ii), an in
absentia order may be rescinded upon a motion to reopen if
the alien demonstrates non-receipt of the notice statutorily
required for removal hearings. Perez-Portillo filed a pro se
motion to reopen, claiming that she did not receive the
hearing notice that rescheduled her hearing to a date two
months earlier than its original date. The IJ denied the
motion by applying a presumption of delivery and the
doctrine of constructive notice (under which an alien may be
charged with receiving notice when the hearing notice was
sent to the last address provided to the immigration
court). The BIA dismissed Perez-Portillo’s appeal.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PEREZ-PORTILLO V. GARLAND 3
The panel explained that the presumption of delivery
attached to service of a hearing notice by regular mail is
rebuttable, and that both this court and the BIA have outlined
factors (including consideration of circumstantial and
corroborating evidence) that should be applied to analyze
whether an alien has rebutted the presumption. Here, the
panel observed that there was circumstantial evidence that
corroborated Perez-Portillo’s claim.
The panel further explained that neither the IJ nor the
BIA directly addressed the credibility of Perez-Portillo’s
statements of non-receipt. The panel observed that, in
general, facts presented in affidavits supporting a motion to
reopen must be accepted as true unless inherently
unbelievable. Although Perez-Portillo’s statements were
not in the form of an affidavit, the panel observed that this
court has not required such from pro se petitioners. Here,
the panel concluded that there was nothing inherently
unbelievable in Perez-Portillo’s claim of non-receipt.
Thus, the panel concluded, unless the IJ found Perez-
Portillo not credible based on additional filings or after a
hearing (neither of which occurred here), her statements of
non-receipt should have persuasive weight. If determined to
be credible, Perez-Portillo’s statements and the
corroborating circumstantial evidence might be sufficient to
overcome the presumption of delivery. However, the panel
concluded that the IJ invoked the doctrine of constructive
notice based solely on the government’s alleged compliance
with the statutory mailing requirement and the success of
other mailings to Perez-Portillo and failed to undertake the
practical evaluation of all the evidence required by the BIA.
The panel noted that it did not address the application of
the doctrine of constructive notice once the credibility of the
4 PEREZ-PORTILLO V. GARLAND
assertion of non-receipt has been considered; rather, it held
only that if a showing of non-receipt were overruled by the
doctrine based solely on the government’s compliance with
statutory mailing procedures without consideration of other
relevant evidence, the language of 8 U.S.C.
§ 1229a(b)(5)(C)(ii) permitting an alien to demonstrate lack
of actual notice would be without meaning.
Because the agency invoked the doctrine of constructive
notice without considering the credibility of Perez-Portillo’s
claim in light of all the circumstantial and corroborating
evidence, the panel granted the petition and remanded.
COUNSEL
Frank P. Sprouls (argued), Ricci Sprouls PC, San Francisco,
California, for Petitioner.
Alanna T. Duong (argued) and Kathryn M. McKinney, Trial
Attorneys; Julie M. Iversen, Senior Litigation Counsel;
Brian Boynton, Acting Assistant Attorney General, United
States Department of Justice, Civil Division, Office of
Immigration Litigation, Washington, D.C.; for Respondent.
PEREZ-PORTILLO V. GARLAND 5
OPINION
CALLAHAN, Circuit Judge:
Petitioners Idania Yamileth Perez-Portillo and her minor
daughter, Stefani Abigail Arevalo-Perez, 1 seek review of the
Board of Immigration Appeals’ (BIA) dismissal of Perez-
Portillo’s appeal from an Immigration Judge’s (IJ) denial of
her motion to reopen her immigration proceedings. Perez-
Portillo failed to appear at her hearing, which had been
moved up two months from its original date, and the IJ
ordered her and her daughter removed in absentia. Upon
receiving notice of her removal order, Perez-Portillo
immediately went to the immigration court to contest the
removal, claiming she never received the notice changing
the date and time of her hearing. The IJ denied her motion
to reopen the proceedings for lack of notice, applying a
presumption of delivery and the doctrine of constructive
notice. We hold that the IJ should have determined the
credibility of Perez-Portillo’s claims of non-receipt in light
of all of the circumstantial and corroborating evidence in the
record. Accordingly, we vacate the denial of Perez-
Portillo’s motion to reopen and remand for further
proceedings consistent with this opinion.
I. BACKGROUND
Perez-Portillo and her daughter are natives of El
Salvador and entered the United States on October 7, 2018,
without being admitted or paroled. Perez-Portillo was eight
months pregnant at the time she entered and gave birth to a
1
Stefani, who is a co-petitioner, is a rider on Perez-Portillo’s application
for asylum and has not presented any independent application for relief.
6 PEREZ-PORTILLO V. GARLAND
U.S. citizen child thereafter.
Three days after her arrival, on October 10, 2018, the
Department of Homeland Security (DHS) charged Perez-
Portillo with being inadmissible under 8 U.S.C. §
1182(a)(6)(A)(i) and issued Perez-Portillo a notice to appear
(NTA) before an IJ. The notice stated that a hearing was
scheduled for February 27, 2020, at 9:00 a.m. DHS served
the NTA via regular mail on October 12, 2019, to a Virginia
Avenue address in Richmond, California that Perez-Portillo
had provided to authorities when she was apprehended by
DHS. On October 22, 2019, the immigration court issued
Perez-Portillo a notice of hearing (NOH) moving the hearing
date up from February 27, 2020, to December 3, 2019. DHS
asserts that the notice was again sent by regular mail to the
same Virginia Avenue address.
Perez-Portillo claims that she did not receive the October
22, 2019, NOH and accordingly she did not appear at the
rescheduled December 3, 2019, hearing. When Perez-
Portillo did not appear at the hearing, the IJ entered an order
noting Perez-Portillo’s failure to appear despite having been
provided written notification of the time and place of the
hearing, finding that DHS had submitted documentation
establishing Perez-Portillo’s inadmissibility, and ordering
Perez-Portillo removed in absentia. A copy of the removal
order was mailed to the Virginia Avenue address, and Perez-
Portillo received the removal order on Saturday, December
7, 2019.
On Monday, December 9, 2019, Perez-Portillo went to
the immigration court to let them know she had not received
notice of the advanced hearing date and to ascertain “if there
was anything [she] could do.” Two days later, on December
11, 2019, Perez-Portillo filed a one-page pro se motion to
PEREZ-PORTILLO V. GARLAND 7
reopen, claiming that she had not received the October 22,
2019, notice advancing her hearing date. The motion stated
that Perez-Portillo feared returning to her country, and that
she had a U.S. citizen child “who is sick and depends” on
her.
On December 20, 2019, the IJ denied the motion to
reopen, noting that “[a] properly addressed and mailed
hearing notice is entitled to a rebuttable presumption of
delivery,” and that, even in the absence of actual notice, an
alien “may be charged with receiving constructive notice
when the hearing notice was sent to the address she last
provided to the Court,” citing to In Re G-Y-R-, 23 I. & N.
Dec. 181, 186–87 (BIA 2001). Applying these standards,
the IJ found that Perez-Portillo had received constructive
notice of the hearing when the immigration court mailed the
notice of the December 3, 2019, hearing to the Virginia
Avenue address. Further, the IJ cited the fact that Perez-
Portillo received both her initial NTA and her in absentia
removal order at the Virginia Avenue address as
undermining her “current contention of non-receipt.”
However, the IJ did not explicitly address Perez-Portillo’s
credibility as to her claims of non-receipt. The IJ also
determined that Perez-Portillo had not demonstrated
exceptional circumstances justifying her failure to appear
that would warrant reopening her case.
Perez-Portillo appealed the IJ’s decision to the BIA. The
BIA agreed with the IJ’s conclusion that the immigration
court properly served the notice of the December 3, 2019,
hearing by mailing it to Perez-Portillo at her “address of
record on October 23, 2019.” The BIA rejected Perez-
Portillo’s argument that notices sent by regular mail (as
opposed to certified mail) are not entitled to a presumption
of delivery. While that presumption could be rebutted, the
8 PEREZ-PORTILLO V. GARLAND
BIA found that “[t]he evidence and arguments [Perez-
Portillo] [has] submitted are not sufficient to overcome the
presumption of delivery attached to the notices sent by
regular mail to the most recent address provided.” The BIA
further held that Perez-Portillo received constructive notice
of the change in hearing date. Finally, the BIA noted Perez-
Portillo had not challenged the IJ’s finding that no
exceptional circumstances justified the failure to appear and
declined to exercise its power to reopen the proceedings sua
sponte.
The BIA dismissed the appeal and this timely petition
followed.
II. STANDARD OF REVIEW
We review the agency’s denial of a motion to reopen for
an abuse of discretion. Chandra v. Holder, 751 F.3d 1034,
1036 (9th Cir. 2014). “The BIA abuses its discretion when
its denial of a motion to reopen is ‘arbitrary, irrational or
contrary to law.’” Id. (quoting Azanor v. Ashcroft, 364 F.3d
1013, 1018 (9th Cir. 2004)). “Our review is limited to the
BIA’s decision where the BIA conducts its own review of
the evidence and law, ‘except to the extent that the IJ’s
opinion is expressly adopted.’” Vitug v. Holder, 723 F.3d
1056, 1062 (9th Cir. 2013) (quoting Hosseini v. Gonzales,
471 F.3d 953, 957 (9th Cir. 2006)). We review purely legal
questions de novo, and the agency’s factual findings for
substantial evidence. Najmabadi v. Holder, 597 F.3d 983,
986 (9th Cir. 2010).
III. DISCUSSION
At issue is whether the BIA abused its discretion by
upholding the IJ’s denial of Perez-Portillo’s motion to
reopen, which was based on her claim of non-receipt of the
PEREZ-PORTILLO V. GARLAND 9
October 22, 2019, NOH rescheduling her originally-noticed
hearing date.
A. Notice Requirements Under the Immigration and
Nationality Act
Under the Immigration and Nationality Act (INA), a
written notice to appear must be given to an alien for the
initiation of removal proceedings. 8 U.S.C. § 1229(a). The
notice must advise the alien of “the nature of the
proceedings” and the “acts or conduct alleged to be in
violation of law” and specify “[t]he time and place at which
the proceedings will be held.” Id. § 1229(a)(1)(A), (C),
(G)(i). A written notice to appear 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).” Id. § 1229(a)(1). If there is “any change or
postponement in the time and place of such proceedings”
then the alien must be provided with an updated notice,
which must be served by the same process. Id. §
1229(a)(2)(A).
Prior to 1996, the statute required the government to use
certified mail, but the provision was amended by the Illegal
Immigration Reform and Immigrant Responsibility Act
(IIRIRA) to allow notices to be sent using regular mail. See
id. § 1229(a)(1), (2), amended by Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104–208, div. C, tit. III, § 308(b)(6), 110 Stat. 3009–
546, 3009–615, repealing § 1252b(a)(1) (1995). The INA
presently provides that service by mail “shall be sufficient if
there is proof of attempted delivery to the last address
provided by the alien.” Id. § 1229(c).
If an alien does not appear at the proceeding, she “shall
be ordered removed in absentia if the Service establishes by
10 PEREZ-PORTILLO V. GARLAND
clear, unequivocal, and convincing evidence that the written
notice was so provided and that the alien is removable.” Id.
§ 1229a(b)(5)(A). “[W]ritten notice by the Attorney
General shall be considered sufficient . . . if provided at the
most recent address provided [by the alien].” Id. An in
absentia order for removal may be rescinded upon a motion
to reopen “if the alien demonstrates that the alien did not
receive notice in accordance with [8 U.S.C. § 1229(a)(1) or
(2)].” Id. § 1229a(b)(5)(C)(ii).
B. Presumption of Delivery of Notice for Non-Certified
Mailings
Both this Court and the BIA have addressed the
sufficiency of notice by regular mailing as it relates to in
absentia orders for removal. In Salta v. INS, we looked at
the level of evidence necessary to rebut the presumption of
notice after the IIRIRA relaxed the service-by-mail
requirements. 314 F.3d 1076, 1078-79 (9th Cir. 2002). In
Salta, the petitioner (Salta) received an initial NTA and
appeared at her first hearing, which was continued. Id. at
1077. She then received a notice that her hearing would be
rescheduled, but it did not include the new date. Id. Later,
the INS mailed the notice of the continued hearing, including
the date, by regular mail to petitioner’s address of record. Id.When Salta did not appear at her second hearing, the IJ
proceeded in absentia and Salta was ordered removed. Id.Upon receipt of her notice of order of removal, Salta filed a
timely motion to reopen, stating that she had not received
notice of the second hearing date. Id. Following the
standard set by cases dealing with certified mailings, the IJ
denied the motion, finding that Salta had not met her burden
with respect to the affirmative defense of non-delivery, and
the BIA dismissed. Id. at 1077-78.
PEREZ-PORTILLO V. GARLAND 11
Salta filed a petition for review, and we granted it.
Acknowledging the changed statutory notice requirements,
we found that the strong presumption of delivery that
attached to use of certified mail was not appropriate when
notice is sent by regular mail. Id. at 1079. We remanded the
case to the BIA with instructions to allow Salta to
supplement the record and conduct an evidentiary hearing to
determine if she could demonstrate lack of notice, noting that
[w]here 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 Salta 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 Salta to
an evidentiary hearing to consider the
veracity of her allegations.
Id.We have since confirmed the “general rule, that the
presumption of effective service of notices to appear by
regular mail is weaker than the presumption when applied to
delivery by certified mail.” Sembiring v. Gonzales, 499 F.3d
981, 987 (9th Cir. 2007). Furthermore, we have noted that
the test for whether an individual produced sufficient
evidence to overcome the presumption of service by regular
mail is “practical and commonsensical rather than rigidly
formulaic,” and that in many cases the only proof may be the
individual’s statement as well as circumstantial evidence.
Id. at 988. In Sembiring, we found that the BIA erred in
finding the petitioner did not overcome the presumption
when she had affirmatively sought asylum, there had been
12 PEREZ-PORTILLO V. GARLAND
no prior proceedings, she appeared in immigration court on
the originally scheduled hearing date, she promptly wrote
and filed a letter requesting the IJ reopen her proceedings,
she plausibly explained her presence at the court on the
incorrect day, and the evidence supporting the government’s
claim of actual mailing was weak. Id. at 988–99.
The BIA has similarly rejected “[a]n inflexible and rigid
application of the presumption of delivery” as “not
appropriate when regular mail is the method of service.”
Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (B.I.A. 2008).
In Matter of M-R-A-, the BIA set forth a non-exhaustive list
of factors that an IJ may consider when determining if a
respondent has provided sufficient evidence to overcome the
presumption of adequate notice with the use of regular mail:
(1) the respondent’s affidavit; (2) affidavits
from family members or other individuals
who are knowledgeable about the facts
relevant to whether notice was received; (3)
the respondent’s actions upon learning of the
in absentia order, and whether due diligence
was exercised in seeking to redress the
situation; (4) any prior affirmative
application for relief, indicating that the
respondent had an incentive to appear; (5)
any prior application for relief filed with the
Immigration Court or any prima facie
evidence in the record or the respondent’s
motion of statutory eligibility for relief,
indicating that the respondent had an
incentive to appear; (6) the respondent’s
previous attendance at Immigration Court
hearings, if applicable; and (7) any other
PEREZ-PORTILLO V. GARLAND 13
circumstances or evidence indicating
possible nonreceipt of notice.
Id. The BIA pointed out that each case must be evaluated in
consideration of all evidence presented, “both circumstantial
and corroborating,” in determining whether the notice was
actually received. Id. There, the BIA found the respondent
had rebutted the presumption of service because he had
initially affirmatively filed an asylum application, appeared
in his first scheduled hearing, provided affidavits stating he
had not received notice of the rescheduled hearing,
immediately sought assistance of counsel upon learning of
the in absentia order, and filed a motion to reopen. Id. at
676. The BIA emphasized that the IJ must consider all
relevant evidence submitted, and that a significant factor in
its decision was the “respondent’s due diligence in promptly
seeking to redress the situation by obtaining counsel and
requesting reopening of the proceedings.” Id. at 676.
C. Application of Constructive Notice to Perez-Portillo’s
Claims of Non-Receipt
Our prior cases make clear that the presumption of
delivery attached to service by regular mail is rebuttable, and
both this court and the BIA have outlined the factors that
should be applied to analyze whether an alien has rebutted
that presumption. Here, despite Perez-Portillo’s facially
reasonable claim of non-receipt, the IJ—without a hearing
and without evaluating Perez-Portillo’s credibility in
conjunction with the circumstantial and corroborating
evidence—denied her motion to reopen by relying on the
doctrine of constructive notice.
Although the Government argues that Perez-Portillo
presented only “bare allegations” of non-receipt, the record
14 PEREZ-PORTILLO V. GARLAND
indicates that is not the case. There was circumstantial
evidence that corroborated Perez-Portillo’s claim. First,
Perez-Portillo acted with “due diligence in promptly seeking
to redress the situation” by presenting herself to court on the
first business day after receipt of the IJ’s in absentia decision
and filing a pro se motion to reopen just two days later. See
Matter of M-R-A-, 24 I. & N. Dec. at 676 (“[W]e consider a
significant factor to be the respondent’s due diligence in
promptly seeking to redress the situation by obtaining
counsel and requesting reopening of the proceedings.”); see
also Matter of C-R-C-, 24 I. & N. Dec. 677, 680 (B.I.A.
2008) (finding the alien’s due diligence in promptly seeking
redress significant). In addition, this was to be Perez-
Portillo’s first hearing, so she could not have attended a
previous hearing in immigration court. See Matter of M-R-
A-, 24 I. & N. Dec. at 674; see also Ochoa-Varona v. Holder,
488 F. App’x 200, 201 (9th Cir. 2012) (finding the BIA
abused its discretion in weighing as an adverse factor the
petitioner’s non-attendance at an earlier hearing where no
previous proceedings had taken place). Moreover, Perez-
Portillo asserted a lack of motive to avoid her hearing and,
contrary to any intent to avoid the immigration court,
presented herself to the court immediately after receipt of the
IJ’s order. Furthermore, rather than a postponement of a
hearing date, in which an alien faces a more forgiving
scenario with a second opportunity to appear at the correct
time and place, here the agency advanced her initial hearing
date.
Neither the IJ nor the BIA directly addressed the
credibility of Perez-Portillo’s statements. Although Perez-
Portillo’s statements were not in the form of an affidavit, we
have not required such from pro se petitioners. See
Sembiring, 499 F.3d at 990 (“It is unreasonable to construe
PEREZ-PORTILLO V. GARLAND 15
Sembiring’s letter liberally as a motion to reopen because
she is pro se . . . only to deny that same pro se motion
because the letter was not in the form of a sworn affidavit.”).
In general, in assessing whether an alien has made the
requisite prima facie showing in support of reopening, “facts
presented in affidavits supporting a motion to reopen must
be accepted as true unless inherently unbelievable.” Bhasin
v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005). There is
nothing inherently unbelievable in Perez-Portillo’s
statements. Accordingly, unless the IJ found Perez-Portillo
not credible based on additional filings or after a hearing, her
statements of non-receipt should have persuasive weight.
See Matter of C-R-C-, 24 I. & N. Dec. at 680 (noting the IJ
declined to give persuasive weight despite no indication he
discounted the veracity of petitioner’s statements). If
determined to be credible, Perez-Portillo’s statements of
non-receipt and the corroborating circumstantial evidence
might be sufficient to overcome the rebuttable presumption
of delivery that attaches to notices sent by regular mail.
Sembiring, 499 F.3d at 987.
However, the IJ tasked with making that determination
invoked the doctrine of constructive notice based solely on
the government’s alleged compliance with the statutory
mailing requirement and the success of other mailings and
failed to undertake the “practical evaluation of all the
evidence” required by the BIA. Matter of M-R-A-, 24 I. & N.
Dec. at 674; see also Sembiring, 499 F.3d at 989 (“[T]he
inquiry contemplated by Salta is a practical one under which
many forms of evidence are relevant.”); Matter of C-R-C-,
24 I. & N. Dec. at 680 (noting the IJ in that case did not
explicitly consider uncontested relevant facts); Esteban-
Manuel v. Sessions, 700 F. App’x 750 (9th Cir. 2017) (“The
agency abused its discretion in denying petitioners’ motion
16 PEREZ-PORTILLO V. GARLAND
to reopen where it relied on conjecture in petitioner’s
affidavit regarding the possible discarding of mail, and did
not consider all of the evidence that petitioners offered to
rebut the presumption of delivery.”).
This is not to say that the doctrine of constructive notice
may never come into play when there is evidence that notice
was not actually received. See, e.g., Matter of G-Y-R-, 23 I.
& N. Dec. 181, 186-87 (B.I.A. 2001) (discussing the
possible application of constructive notice where the alien
fails to comply with her obligation under the INA to keep
her address current). But we need not, and we do not,
address the application of the doctrine of constructive notice
once the credibility of the assertion of non-receipt has been
considered. We hold only that if a showing of non-receipt
were overruled by the doctrine of constructive notice based
solely on the government’s compliance with statutory
mailing procedures without consideration of other relevant
evidence, the language of 8 U.S.C. §1229a(b)(5)(C)(ii)
permitting an alien to demonstrate that they did not receive
actual notice would be without meaning.
IV. CONCLUSION
Because the agency invoked the doctrine of constructive
notice without considering the credibility of Perez-Portillo’s
claim of non-receipt in light of all the circumstantial and
corroborating evidence, we grant the petition and remand to
the BIA with instructions to remand to the IJ for further
proceedings consistent with this opinion.
PETITION GRANTED AND REMANDED.