Affidavit Alone Does Not Prove Lack of Notice, Says Fifth Circuit
The Fifth Circuit has determined that a non-citizen’s declaration alone is not sufficient to compel the agency to reopen a removal order. This is based on the lack of receipt of the notice of hearing. The court’s decision in Luna v. Garland upheld the Board of Immigration Appeals’ (BIA) denial of a motion to reopen. It found that the BIA did not abuse its discretion in its ruling.
Factual Background
The case involved Dagoberto Luna, a native and citizen of Mexico who entered the United States in 1997 without valid documents. In 2003, the government mailed him a Notice to Appear (NTA) to an address he had provided. The government later mailed a Notice of Hearing (NOH) to the same address.
Luna later filed a motion to reopen his proceedings, arguing that his NTA was defective because it lacked the hearing time and place. He also claimed that he had not received the NTA or the NOH. He submitted an affidavit to support his claim that he did not receive the notices. The Immigration Judge (IJ) and the BIA denied his motion.
Legal Reasoning
The Fifth Circuit reviewed the BIA’s decision for an abuse of discretion. The court found that Luna’s NTA was indeed defective for not including the time and place of the hearing. This was done by citing the Supreme Court’s decisions in Niz-Chavez v. Garland and Campos-Chaves v. Garland. However, the court explained that this defect alone does not automatically entitle a non-citizen to rescind an in absentia removal order. This is true if they received a subsequent notice with the hearing details. The government had provided a subsequent notice (the NOH) to Luna, which cured the defect in the original NTA.
The central issue then became whether Luna had rebutted the presumption of receipt for the NOH. The BIA determined that Luna’s affidavit alone was not sufficient to overcome this presumption. The court found that the BIA’s conclusion was not an abuse of discretion.
