CA9 on Notice, In Absentia, Motion to Reopen, Abuse of Discretion: Perez-Portillo v. Garland

Perez-Portillo v. Garland

"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. ... 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. ... Neither the IJ nor the BIA directly addressed the credibility of Perez-Portillo’s statements. ... 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."