Irineo Cuenca Brito v. Merrick B. Garland

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1278
IRINEO CUENCA BRITO,
Petitioner,
v.
MERRICK GARLAND, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A205-990-502
____________________
ARGUED NOVEMBER 8, 2021 — DECIDED JULY 7, 2022
____________________
Before SCUDDER, KIRSCH, and JACKSON-AKIWUMI, Circuit
Judges.
SCUDDER, Circuit Judge. Irineo Cuenca Brito, a citizen of
Mexico, seeks our review of a decision by the Board of Immi-
gration Appeals denying his petition for deferral of removal
under the United Nations Convention Against Torture. He
advances three legal challenges to that decision. But seeing no
legal error, we deny Brito’s petition for review.
2 No. 21-1278
I
A
Irineo Brito first unlawfully entered the United States in or
before 2013. On June 3, 2013, the Department of Homeland
Security ordered him removed. Brito then illegally reentered
again sometime prior to 2019. And he once again came to the
attention of immigration authorities. On July 24, 2019, DHS
issued a second notice of removal against him.
Brito applied for withholding of removal under the Immi-
gration and Nationality Act and withholding or deferral of re-
moval under the United Nations Convention Against Torture
(often shorthanded as “CAT”), claiming that he would be sub-
ject to persecution and torture if removed to Mexico. Those
applications led to a hearing before an immigration judge
where, in support of his claim, Brito offered his own testi-
mony and that of Dr. Harry Vanden, an expert in Mexican car-
tels.
Brito testified first, explaining that he had fled Mexico be-
cause of threats he received from the Familia Michoacan car-
tel. He recounted that, sometime in the summer of 2013, ru-
mors began to spread around his hometown of Acatlán del
Rio that the cartel was coming to the area. Before long, those
rumors proved true and members of the cartel made their
way into the region. Brito, who worked as a fisherman, de-
scribed walking home from work one day when cartel mem-
bers confronted and abducted him at gunpoint. He does not
know why the cartel sought him out. By Brito’s account, the
cartel members then transported him to a boat dock in an ap-
parent effort to receive some type of help from him.
No. 21-1278 3
Brito’s testimony went on. Near the end of the hours-long
captivity, he seized a moment in which his captors were pre-
occupied to make his escape. Ignoring the threats the cartel
members had made against him to prevent him from leaving,
Brito testified that he used a small boat to slip away from the
cartel’s grasp. As he fled, he saw bullets hit the water around
him.
Brito testified that after his escape, he returned to his
neighborhood only to find that his home had been ransacked
by the cartel. He believed that the upending of his house evi-
denced the cartel’s efforts to seek him out. He added that,
while in the cartel’s custody, he overheard some of its mem-
bers say over a two-way radio, “We’re here at the house, but
[I]rineo is not here.” Fearful that remaining in Mexico would
put his life at risk, Brito and his wife made their way to the
United States to seek refuge.
For his part, Dr. Vanden testified that the Familia Micho-
acan cartel is a large, powerful organization with the ability
to operate in any region of Mexico. Given that power, he went
on, the organization would likely torture and kill anyone who
frustrated its activities. In Brito’s case, Dr. Vanden posited, the
cartel would seek him out to exact revenge for his escape from
the boat dock. Finally, Dr. Vanden described how, in part be-
cause of the Mexican government’s history of acquiescing to
or even colluding with the cartel, it would be nearly impossi-
ble for Brito to avoid the wrath of the organization. In short,
when asked if he believed Brito would be at risk of torture if
sent back to Mexico, Dr. Vanden answered by saying, “Yes, I
do.”
Based on this evidence, Brito argued that he faced a credi-
ble threat of persecution or torture in Mexico and was
4 No. 21-1278
therefore entitled to withholding of removal and thus to re-
main in the United States.
B
Concluding that the record failed to show that Brito faced
a threat of imminent death based on account of his member-
ship in a protected class, the immigration judge denied his re-
quest for withholding of removal under the Immigration and
Nationality Act. But because there was sufficient evidence
that Brito faced a substantial risk of torture at the acquies-
cence of the Mexican government, the immigration judge
granted Brito deferral of removal under CAT. See 8 C.F.R.
§§ 1208.16, 1208.17, 1208.18.
The immigration judge found credible Brito’s claims that
he had faced a near-death experience in his hometown and
concluded that, as described by Dr. Vanden, the cartel would
find and kill him if he returned to any part of Mexico. The
immigration judge further determined that Mexican authori-
ties would be of no help to Brito given Dr. Vanden’s testimony
about the government’s reputation for submission to and col-
lusion with the Familia Michoacan cartel.
On appeal, the Board of Immigration Appeals vacated the
immigration judge’s decision and ordered Brito removed to
Mexico. Even reviewing the immigration judge’s determina-
tion deferentially, the Board found that the decision reflected
several significant errors. As to Brito’s risk of torture, the
Board saw no factual support for the finding that the Familia
Michoacan sought him out specifically or was even aware of
his identity. Rather, “[Brito] testified that although he heard
his name referenced over the radio, the cartel members who
No. 21-1278 5
detained him did not know who he was or that he was the
same person mentioned over the radio.”
Relatedly, the Board determined that there was not
enough evidence to support the contention that Brito faced an
individualized and substantial risk of torture upon his return
to Mexico. Dr. Vanden’s testimony, the Board reasoned, failed
to go beyond generalities and speculation. Likewise, the im-
migration judge’s conclusion that Brito could not relocate
within Mexico lacked evidentiary support, rooted itself in
generalities about corruption within the Mexican govern-
ment, and was “too speculative in the present case.”
Finally, concerning the possibility that the Mexican gov-
ernment might assent to torture exacted upon Brito, the Board
concluded that the immigration judge’s determination consti-
tuted error. The evidence Brito presented—largely describing
“the general inadequacies and corruption in the Mexican gov-
ernment”—was insufficient to support a finding that the Mex-
ican government either was aware of the cartel’s threat or ac-
quiesced and would continue to acquiesce to any harm.
Brito then filed this petition for our review.
II
Brito brings three challenges to the Board’s decision that
he casts as legal errors. No doubt he proceeds this way recog-
nizing that discretionary decisions are outside our purview:
we only have jurisdiction to hear constitutional or legal chal-
lenges to the Board’s conclusion. See 8 U.S.C.
§§ 1252(a)(2)(B)(ii), (a)(2)(D); see also Rosiles-Camarena v.
Holder, 735 F.3d 534, 536 (7th Cir. 2013).
6 No. 21-1278
A
All agree that the Board reviews an immigration judge’s
decision for clear error. See Estrada-Martinez v. Lynch, 809 F.3d
886, 889 (7th Cir. 2015). Brito contends that the Board, while
formally recognizing this standard, failed to apply it and in-
stead employed a less deferential standard and engaged in
impermissible fact finding. He is right that if the Board had
applied the wrong legal standard of review, relief is war-
ranted. See id. at 894 (interpreting 8 C.F.R. § 1003.1(d)(3)(i) as
“preclud[ing] the Board from simply reweighing the evidence
to reverse the immigration judge”).
But a fresh look at the record does not support Brito’s con-
tention. See Lenjinac v. Holder, 780 F.3d 852, 854 (7th Cir. 2015)
(“Whether the BIA applied the proper standard of proof is a
question of law subject to de novo review.”). The Board stated
its use of the clear error standard of review at least five times.
To be sure, merely parroting the proper standard of review
does not immunize the Board’s decision from further review.
For example, in Estrada-Martinez, we concluded that although
the Board professed to have applied the clear error standard
of review to an immigration judge’s determination, its re-
weighing of evidence revealed the application of a less defer-
ential and legally incorrect standard. See 809 F.3d at 894–95
(emphasizing that the Board’s explanation that it was “not
persuaded” by the evidence showed that it exceeded clear er-
ror review).
But here the Board did not just state the correct standard
of review—it applied it. Two reasons support this conclusion.
First, by and large, the Board grounded its decision in a
determination that Brito’s evidence on all material points was
No. 21-1278 7
too speculative. In assessing Brito’s risk of torture, for in-
stance, the Board determined that the immigration judge’s
conclusion that the cartel knew of Brito’s identity lacked sup-
port in the record. The evidence Brito offered was “not indic-
ative of whether the cartel has identified the applicant as the
individual who fled and will seek to harm him upon his re-
turn.” Similarly, the evidence did not show that the cartel
members had or would target Brito as a victim of torture—he
had encountered the cartel only once and “the assertions of
[Dr. Vanden] that the cartel would seek revenge for the appli-
cant’s actions were general and speculative in nature.”
Nor, the Board concluded, did the evidence show that the
Mexican government would be unable or unwilling to protect
Brito. Although Dr. Vanden testified that the cartel had ties to
public officials and that authorities had been unsuccessful at
fully combatting cartel violence, those generalized opinions
“d[id] not show that [Brito] would specifically be targeted for
torture by the government or with its consent or acquies-
cence.” These determinations, the Board found, constituted
clear error.
A broader point warrants mention. A conclusion that a de-
cisionmaker rested a finding on speculation is not an uncom-
mon basis for clear error reversal. See, e.g., Pyles v. Nwaobasi,
829 F.3d 860, 868 (7th Cir. 2016) (“Where the evidence under-
lying a fact, including credibility, supports only speculation
about the existence or nonexistence of the contested point, it
is clear error to conclude that the point has been estab-
lished.”). Just so here: a determination that the evidence does
not support an immigration judge’s conclusion does not nec-
essarily establish that the Board improperly weighed the evi-
dence.
8 No. 21-1278
Second, we see no indication that the Board did anything
other than review the immigration judge’s ruling for clear er-
ror. Other circuits have pointed to specific indicia of de novo
review under the guise of clear error. The Ninth Circuit, for
example, has explained that a Board decision that “does not
address the [immigration judge’s] ‘key factual findings,’”
“gives more weight to certain facts in the record than others,”
or fails to explain how the immigration judge’s “alleged er-
rors showed [a] lack of logic, plausibility, or support in the
record” suggests the use of a standard of review less deferen-
tial than clear error. Soto-Soto v. Garland, 1 F.4th 655, 659–60
(9th Cir. 2021). We see nothing of the sort in the Board’s deci-
sion sustaining the Department’s appeal.
Because we cannot conclude that the Board’s assessment
reflects a standard other than the one it stated—clear error—
we see no basis to grant Brito’s petition for relief under CAT.
B
We make quick work of Brito’s second argument that the
Board lacked authority to act in reviewing his petition. He
contends the Board that decided his appeal consisted of two
members who served beyond their six-month terms of ap-
pointment, see 8 C.F.R. § 1003.1(a)(4), thereby leaving them
without authority to act and rendering their decision unlaw-
ful and unenforceable.
What Brito fails to recognize is that after the two tempo-
rary Board members’ six-month terms had expired, the Attor-
ney General reappointed both members to an additional term
of six months. Because Brito’s immigration appeal was within
that second six-month period, he cannot show the Board ad-
judicated his petition without lawful authority.
No. 21-1278 9
C
Brito’s final contention is that the Board committed legal
error by accepting an untimely brief from the Department of
Homeland Security. The record shows that DHS submitted its
brief in support of its administrative appeal on June 12,
2020—eight days past the filing deadline. Accompanying the
brief was a motion asking the Board to accept the late filing.
The government justified its delay by pointing out that, be-
cause of the COVID-19 pandemic, it received the briefing
schedule the day before the deadline. Moreover, the pan-
demic—and a period of civil unrest—resulted in an effective
shutdown where the Department was left to work with only
minimal staff. The Board, exercising its discretion, decided to
accept the government’s late brief, expressly noting that it
acknowledged the arguments raised by Brito but that “under
the circumstances described by the DHS,” the late filing was
excusable.
We know of no legal prohibition on the Board’s choosing
to accept an untimely brief in these circumstances. To the con-
trary, federal regulations afford the Board such discretion. See
8 C.F.R. § 1003.1(d)(2)(i)(E) (“A single Board member or panel
may summarily dismiss any appeal or portion of any appeal”
if a party fails to file a brief “within the time set for filing.”)
(emphasis added); id. § 1003.3(c)(2) (“In its discretion, the
Board may consider a brief that has been filed out of time.”).
Indeed we have acknowledged this discretion on prior occa-
sions. See, e.g., Awe v. Ashcroft, 324 F.3d 509, 513–14 (7th Cir.
2003) (denying a petition for relief despite the petitioner’s
challenge to the Board’s summary dismissal of his late filing).
On this record, we see no error, legal or otherwise. The
Board could have rejected DHS’s late brief and dismissed the
10 No. 21-1278
appeal, but it was not legally compelled to do so. The govern-
ment offered reasons for its untimely filing—all relating to the
unforeseen and overwhelming administrative challenges
wrought by the COVID-19 pandemic—and the Board found
those reasons persuasive, despite Brito’s opposing argu-
ments. Any claim that the Board failed to exercise its proper
discretion or ignored Brito’s arguments is unavailing.
Seeing no legal or constitutional error in any part of the
Board’s determination as to Brito’s petition for relief under
CAT, we deny his petition for review.
No. 21-1278 11
JACKSON-AKIWUMI, Circuit Judge, dissenting. The majority
is correct that the Board of Immigration Appeals had discre-
tion to accept the Department of Homeland Security’s un-
timely brief rather than summarily dismiss the appeal. But
discretion must be thoughtful and reasoned. Here, despite the
BIA’s regulations to the contrary, the BIA accepted the gov-
ernment’s brief with a cursory footnote. One might think that
the BIA’s brief footnote is unremarkable, and that pausing to
focus on it is a mere quibble about procedure. But our prece-
dent requires the BIA to do more than adopt DHS’s reasoning
at face value, especially when the BIA flouts its own rules in
the process. The BIA’s decision in Cuenca Brito’s case risks
creating different standards for noncitizens and DHS—where
noncitizens must strictly comply with rules, but DHS has the
leeway to treat rules as guidelines and avoid the dismissal of
its appeals. I would remand the case for reconsideration of
DHS’s deficient motion.
I
The majority summarizes the key facts of Cuenca Brito’s
case, so I recite only the relevant procedural history. After the
immigration judge granted Cuenca Brito deferral of removal
under the Convention Against Torture, DHS appealed to the
BIA. DHS checked the box on its notice of appeal that it would
file a written brief. The form for a notice of appeal warns liti-
gants that if they indicate that they plan to file a brief, “[t]he
Board may summarily dismiss your appeal if you do not file
a brief or statement within the time set in the briefing sched-
ule.”
On May 14, 2020, the BIA notified both parties that briefs
were due on June 4, 2020. The notice warned the parties that
“[i]f you fail to file a brief or statement within the time set for
12 No. 21-1278
filing in this briefing schedule, the Board may summarily dis-
miss your appeal.” The notice further specified that any ex-
tension requests should be in the BIA’s hands “on or before
the expiration of the initial briefing schedule” and “[r]equests
for extension of briefing time received after expiration of the
initial briefing schedule, will not be granted.”
The June 4 deadline arrived. Cuenca Brito filed his brief on
time. But DHS filed neither a brief nor a request for an exten-
sion. Instead, DHS took no action until it filed its opening
brief just over a week later, on June 12. DHS simultaneously
filed a motion, with no attachments, to accept the untimely
brief. The motion consisted of a single paragraph, reproduced
below in its entirety:
The Department of Homeland Security (Depart-
ment) respectfully moves the Board of Immigra-
tion Appeals (Board) to accept late filing of the
attached brief in support of its position in the in-
stant matter. Pursuant to the BIA Practice Man-
ual, parties may file untimely documents if de-
lay was due to a natural or manmade disaster.
See BIA Practice Manual at Chapter 3.l(b)(v). In
this case, although the briefing schedule is
dated May 14, 2020, the Department did not re-
ceive the notice in the mail until June 3, 2020 and
the undersigned attorney did not become aware
of it until June 4, 2020. In addition to the on-go-
ing COVID-19 pandemic, which has delayed
mail service and required many agencies in-
cluding the Department to operate with a skele-
tal staff, the Office of the Principal Legal Advi-
sor Office and much of the city of Chicago was
No. 21-1278 13
closed June 1–2, 2010 [sic], due to civil unrest.
This late filing was unintentional, not for the
purpose of delaying proceedings, and will not
be prejudicial to the respondent. Given the
overall facts and circumstances, the Department
respectfully requests that this Board grant the
instant motion.
Cuenca Brito opposed DHS’s motion in a fulsome filing.
He noted that DHS’s motion lacked evidentiary support and
therefore did not comply with BIA policy. He also argued that
DHS’s reasons for submitting a late brief did not sufficiently
explain how the circumstances DHS faced were unique com-
pared to any other litigant, including Cuenca Brito himself. In
Cuenca Brito’s view, DHS should not be permitted to use the
pandemic and George Floyd protests as “a catch all excuse”
for its delay. Moreover, Cuenca Brito observed, DHS admit-
ted in its motion that it was fully aware of the briefing sched-
ule before the June 4 deadline yet chose not to file an exten-
sion request. Finally, Cuenca Brito criticized DHS’s motion as
“an approach of ‘it’s easier to ask for forgiveness than permis-
sion.’”
The BIA reversed the IJ’s grant of relief to Cuenca Brito,
paving the way for his certain removal from the United States.
At the beginning of the decision, the BIA addressed DHS’s
motion in a two-sentence footnote: “We acknowledge that the
DHS’s brief was untimely filed and the arguments raised by
the applicant in their response … However, under the circum-
stances described by the DHS, we will grant their motion to
accept the untimely filing and consider the DHS’s brief on ap-
peal.” Thus, DHS was saved from the summary dismissal of
its appeal and, instead, succeeded in its quest to overturn the
14 No. 21-1278
IJ’s decision granting Cuenca Brito deferral of removal under
the Convention Against Torture.
II
The BIA has discretion to “prescribe procedures govern-
ing proceedings before it,” including accepting or rejecting
late briefs. 8 C.F.R. § 1003.1(d)(4); see id. at § 1003.3(c)(1). The
BIA’s policy is that litigants hoping to have an untimely brief
accepted must simultaneously file a motion that explains the
reasons for the delay, which in turn “should be supported by
affidavits, declarations, or other evidence.” BIA Practice Man-
ual § 4.7(d); see also id. at § 3.1(b)(5) (requiring same eviden-
tiary basis for claims of delay due to natural or manmade dis-
asters). The BIA considers late-filed briefs “rarely,” and in the
case of disasters, “on a case-by-case basis.” Id. at §§ 3.1(b)(5),
4.7(d). The BIA can summarily dismiss an appeal when the
appellant indicates on their notice of appeal that they will file
a brief “and, thereafter, does not file such brief or statement,
or reasonably explain [their] failure to do so, within the time
set for filing.” 8 C.F.R. § 1003.1(d)(2)(i)(E); BIA Practice Man-
ual §§ 4.7(f), 4.16(c).
We review the BIA’s decision regarding a motion to file an
untimely brief for abuse of discretion. Gutierrez-Almazan v.
Gonzales, 491 F.3d 341, 343 (7th Cir. 2007) (citation omitted).
The BIA abuses its discretion if it renders its decision “‘with-
out a rational explanation, inexplicably depart[s] from estab-
lished policies, or rest[s] on an impermissible basis such as in-
vidious discrimination against a particular race or group.’”
Herrera-Garcia v. Barr, 918 F.3d 558, 563 (7th Cir. 2019) (citation
omitted). Furthermore, although “the BIA is not required to
write an exegesis on every contention,” we nonetheless re-
quire the BIA to “consider the issues raised, and [to] announce
No. 21-1278 15
its decision in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely re-
acted.” Gutierrez-Almazan, 491 F.3d at 343–44 (citation omit-
ted).
III
This case presents the unique situation where DHS—not
the petitioner—is the one who asked for the BIA’s grace after
missing a deadline. Judged by our own caselaw, the BIA’s
footnote accepting the untimely brief amounts to an abuse of
discretion for three reasons: (1) the BIA ignores its own poli-
cies; (2) provides insufficient reasoning; and (3) fails to engage
with Cuenca Brito’s multiple arguments opposing the ac-
ceptance of DHS’s late brief.
First, the BIA departed from its own written policies with-
out explanation. See Herrera-Garcia, 918 F.3d at 563 (citation
omitted). The BIA requires motions for late filed briefs to “be
supported by affidavits, declarations, or other evidence,” BIA
Practice Manual § 4.7(d), including when the brief is allegedly
delayed due to a natural or manmade disaster. Id. at
§ 3.1(b)(5). DHS did not provide any corroborating evi-
dence—not even “a bare, uncorroborated, self-serving” dec-
laration. Joshi v. Ashcroft, 389 F.3d 732, 735 (7th Cir. 2004). De-
spite this blatant omission, the BIA granted the motion with-
out indicating why DHS did not need to comply with this ex-
press policy. For the BIA to decide its rule need not apply in
these circumstances, but offer no reasoned explanation why,
is to adjudicate matters capriciously.
Second, the BIA’s decision leaves us with no understand-
ing of what went into its decision-making process, in contra-
vention of our caselaw. In Gutierrez-Almazan, the BIA rejected
16 No. 21-1278
the noncitizen’s explanation for why his brief was untimely
as “insufficient” in one sentence, without any elaboration. 491
F.3d at 344. We vacated that determination because the BIA
gave “this Court no indication that it took account of [the
noncitizen’s] pro se status, education, language skills, or any
other factors that might be relevant to the merits of his mo-
tion.” Id. In Dakaj v. Holder, the BIA denied a motion to file a
late brief by a noncitizen who claimed he never received the
briefing schedule. 580 F.3d 479, 482 (7th Cir. 2009). We va-
cated that decision and remanded for reconsideration of the
motion because the BIA failed to consider the petitioner’s cor-
roborating evidence. Id. at 483–84. These cases demonstrate
that the BIA must provide some explanation to litigants—and
a reviewing court—about how it reached a conclusion. Hand-
waving does not suffice.
In this case, the BIA’s legal analysis employed a single
phrase: the BIA granted the motion “under the circumstances
described by the DHS.” Indeed, this case is the inverse of Da-
kaj, where the BIA failed to consider the noncitizen’s corrobo-
rating evidence that he never received the briefing schedule.
580 F.3d at 483–84. Here, DHS provided no supporting evi-
dence, but the BIA still found DHS’s uncorroborated, gener-
alized allegations sufficient. DHS’s motion is merely a recita-
tion of facts—it received the notice late; it had limited staff
due to the pandemic; and downtown Chicago was closed for
two days. DHS does not illuminate how these facts com-
pletely barred it from acting in a timely manner, particularly
when a boilerplate extension request was available and other
litigants were expected to meet deadlines despite the
No. 21-1278 17
pandemic and civil protests. 1 I cannot square the majority’s
decision here with our decision in Dakaj.
Third, the BIA did not engage with any of the arguments
Cuenca Brito raised in opposition to DHS’s motion. See
Gutierrez-Almazan, 491 F.3d at 343–44 (citation omitted) (the
BIA “is required to ‘consider the issues raised’” by the par-
ties). The BIA only “acknowledge[d]” that Cuenca Brito made
arguments; it did not address the merits, even hastily.
For example, Cuenca Brito noted that DHS failed to pro-
vide any documentary evidence in support of its contentions
about the effect of the pandemic and the George Floyd pro-
tests. Cuenca Brito contrasted this with the fact that his attor-
ney was able to file a timely brief even though his attorney’s
own office building was damaged. The BIA did not engage
with either observation or, as discussed above, with DHS’s
failure to adhere to BIA’s policies.
Cuenca Brito also questioned the reasoning in DHS’s mo-
tion. He argued that a limited staff did not explain DHS’s in-
ability to file a timely brief. Indeed, DHS presumably handled
other cases during that time, so it is hard to glean from its mo-
tion how limited staffing affected its capacity in this case. The
fact that DHS’s local office was closed for two days in June
also carries significantly less weight when one recalls that
DHS knew it wanted to file a brief in this case—an appeal it
1 In fact, DHS’s departure from BIA policy—as opposed to an individual
petitioner’s departure—is arguably more egregious. DHS is a repeat
player in immigration court and before the BIA, and part of the executive
branch that oversees the immigration system. If anyone should be held
accountable for failing to comply with administrative procedures, it is the
party who is an arm of the governmental body that operates as judge and
jury in these cases.
18 No. 21-1278
initiated—since February 2020. The BIA was silent on these
points.
Cuenca Brito pointed out that DHS admitted that it re-
ceived the briefing schedule before June 4, but it never both-
ered to file an extension request or explain why it could not
do so. Instead, it charted its own path, which the BIA blithely
endorsed. The BIA’s footnote did not contend with this argu-
ment either.
Cuenca Brito’s final argument in opposition concerned
DHS’s contention that it did not receive the May 14 briefing
schedule in the mail until June 3 (Cuenca Brito noted that he
received the notice despite being in DHS custody). Two ob-
servations here. One, we have held that “[t]he BIA is entitled
to presume that a notice sent via regular mail was delivered
to the recipient to whom it was addressed,” absent evidence
to the contrary. Dakaj, 580 F.3d at 482 (citation omitted). Two,
we have held that “a bare, uncorroborated, self-serving denial
of receipt”—even in an affidavit—is generally insufficient to
overcome this presumption. Derezinski v. Mukasey, 516 F.3d
619, 622 (7th Cir. 2008) (quoting Joshi, 389 F.3d at 735). If the
BIA can assume that a noncitizen has received notice when it
is mailed, it can and should hold DHS to the same standard.
The BIA did not address this fourth argument by Cuenca
Brito any more than it did the preceding three.
Ultimately, the BIA’s cursory footnote granting DHS’s
plainly deficient motion suggests we have a system with dif-
ferent rules for different players. We often affirm cases where
the BIA rejected an individual’s plea for leniency after miss-
ing a date due to a mishap at the post office or an agent’s fail-
ure to inform the individual. See, e.g., Derezinski, 516 F.3d at
622 (affirming BIA denial of motion to reopen where
No. 21-1278 19
petitioner did not receive mail, because petitioner could have
tracked down notice after post office said that certified mail
had been returned to sender); Cisneros-Cornejo v. Holder, 330
F. App’x 616, 620–21 (7th Cir. 2009) (affirming BIA denial of
motion to reopen where petitioner did not receive mail, be-
cause petitioner should have provided even more evidence
than her own affidavit); see also Weihua Qu v. Sessions, 733 F.
App’x 303, 306–07 (7th Cir. 2018) (attorney and interpreter
failed to inform noncitizen of hearing date); Simtion v. Gonza-
les, 233 F. App’x 578, 580–81 (7th Cir. 2007) (attorney informed
only the spouse—not the client—of hearing the day before).
The BIA came to the opposite conclusion in this case, and the
only glaring difference is who the litigant is. A difference in
the moving party should not change the application of law.
Cf. Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021) (“If [in-
dividuals] must turn square corners when they deal with the
government, it cannot be too much to expect the government
to turn square corners when it deals with them.”). I can only
hope that the BIA’s disparate treatment of the litigants in this
case is an aberration—and not a feature—of our immigration
system. 2 On this ground, I respectfully dissent.
2 There does not appear to be a definitive study about the rate at which
the BIA summarily dismisses appeals from noncitizens as compared to
DHS, but one study cast an ominous shadow when it concluded that “the
BIA is more likely to reverse the decisions of generous judges when the
government appeals, but is not more likely to reverse the decisions of
harsh judges when immigrants appeal.” David Hausman, The Failure of
Immigration Appeals, 164 U. Pa. L. Rev. 1177, 1192 (2016).