Thursday, November 30, 2006

Must Consider Evidence If Didn't Get Court Notice

In Silva-Carvalho Lopez v. Gonzales, Case No. 05-6878 (2d Cir. Nov. 2, 2006), the Second Circuit ruled that the BIA must consider evidence that someone never in fact received the letter stating the next court date, even if the government proves it mailed out the letter. The rule is that there is a rebuttable presumption of delivery. Because it is rebuttable, the BIA and immigration judge must consider rebuttal evidence that would prove the person never in fact received the letter that the court mailed.

On a related topic, the Eleventh Circuit recently ruled that you can seek to reopen your case by rescinding an in absentia removal order due to lack of notice even if you have physically been deported already. Contreras-Rodriguez v. Gonzales, No. 06-10077 (11th Cir. Aug. 29, 2006).


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