Presumption of Receipt of a Properly Mailed Hearing Notice Bars Late In Absentia Rescission; Defective NTA Objections Are Forfeited if Not Timely; “Changed Country Conditions” Reopening Requires a Then-vs-Now Comparison

Case: Santos Ramiro Hernandez-Galindo v. U.S. Attorney General
Court: Court of Appeals for the Eleventh Circuit
Date: 2026-04-29
Disposition: Petition denied (unpublished, per curiam)

1. Introduction

This immigration petition for review arises from an in absentia removal order entered in 2002 against Santos Ramiro Hernandez-Galindo, a citizen of El Salvador who entered the United States without inspection. He was served with a notice to appear that listed the hearing date and time as “to be set,” later provided an updated address, and the government mailed a notice of hearing to that address. He did not appear, and the immigration judge ordered him removed.

In 2023—more than two decades later—Hernandez-Galindo moved to reopen and rescind the in absentia order. He asserted: (i) he lacked notice of the hearing; (ii) his prior counsel was ineffective (including allegedly telling him he could leave the United States); (iii) the notice to appear was defective for lacking time and place; and (iv) he should be allowed to pursue asylum based on changed country conditions involving gang violence in El Salvador (including threats allegedly linked to MS-13). The Board of Immigration Appeals affirmed the denial of reopening, and the Eleventh Circuit denied review.

The key issues were:

  • Lack of notice / timeliness: whether Hernandez-Galindo overcame the presumption that he received a properly mailed notice of hearing, enabling a late rescission motion.
  • Defective notice to appear: whether an objection to an NTA missing time/place can be raised decades later, and whether it was forfeited.
  • Changed country conditions: whether the evidence submitted satisfied the statutory exception allowing an otherwise untimely asylum-related motion to reopen.

2. Summary of the Opinion

The Eleventh Circuit held that the Board of Immigration Appeals did not abuse its discretion in denying reopening:

  • No rescission for lack of notice: because the government mailed the notice of hearing to the last address provided, a presumption of receipt applied, and Hernandez-Galindo did not overcome it.
  • NTA objection forfeited: because challenges to an NTA missing time/place are claim-processing objections that must be raised timely; Hernandez-Galindo did not establish lack of notice, so the agency reasonably concluded he had the opportunity to object earlier.
  • No changed country conditions: because he did not provide baseline evidence of country conditions in 2002 to permit a meaningful comparison, and the evidence he did provide was read as showing decreasing homicide/crime trends; changes in personal circumstances/risk were insufficient.

3. Analysis

3.1 Precedents Cited

  • Flores-Panameno v. U.S. Att'y Gen., 913 F.3d 1036 (11th Cir. 2019)
    The court relied on this case for the abuse-of-discretion standard governing denials of motions to reopen—framing the highly deferential posture under which petitioners must show the agency’s decision was arbitrary or unreasonable.
  • Li v. U.S. Att'y Gen., 488 F.3d 1371 (11th Cir. 2007)
    Cited for the rule that underlying legal conclusions are reviewed de novo. The panel used this division of labor to assess the legal framework (notice rules, forfeiture doctrine, changed-conditions standard) while still deferring to the Board’s discretionary application.
  • Matter of M-R-A-, 24 I. & N. Dec. 665 (BIA 2008)
    Central to the notice issue. It supplies the Board’s rule that a correctly addressed notice sent by regular mail triggers a presumption of receipt. The Eleventh Circuit accepted the agency’s invocation of that presumption once DHS showed mailing to the last address provided.
  • Dragomirescu v. U.S. Att'y Gen., 44 F.4th 1351 (11th Cir. 2022)
    This Eleventh Circuit precedent confirmed that the presumption of receipt recognized in Matter of M-R-A- applies even when notice is sent by regular mail, reinforcing the evidentiary hurdle Hernandez-Galindo needed to clear.
  • Garland v. Ming Dai, 593 U.S. 357 (2021)
    Used to emphasize that adjudicators are not required to accept a litigant’s uncontradicted testimony at face value. Here, it supported the agency’s ability to discount Hernandez-Galindo’s assertion that he did not receive the mailed hearing notice, even absent an explicit adverse credibility finding.
  • Campos-Chaves v. Garland, 602 U.S. 447 (2024)
    Key to resolving the “defective NTA” argument as it relates to notice of hearing. The panel applied the principle that a later notice of hearing can supersede an earlier notice to appear that lacked hearing time/place, undermining the claim that the missing information in the NTA alone established lack of notice.
  • Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988)
    The ineffective-assistance claim failed because Hernandez-Galindo did not comply with Lozada’s procedural prerequisites. The court treated that failure as a permissible basis for the agency to reject the “exceptional circumstances” theory tied to counsel’s alleged advice.
  • Perez-Sanchez v. U.S. Att'y Gen., 935 F.3d 1148 (11th Cir. 2019) and Avila-Santoyo v. U.S. Att'y Gen., 713 F.3d 1357 (11th Cir. 2013) (en banc)
    These cases supplied the doctrinal classification that certain NTA defects are claim-processing (not jurisdictional) and thus can be forfeited if not timely raised. That classification allowed the Board to dispose of Hernandez-Galindo’s NTA challenge on timeliness/forfeiture grounds.
  • Leger v. U.S. Att'y Gen., 101 F.4th 1295 (11th Cir. 2024) (citing In re Fernandes, 28 I. & N. Dec. 605 (BIA 2022))
    These authorities provided the operational rule for timeliness: an objection to a notice to appear is timely if raised before the close of proceedings before the immigration judge. The panel used this framework to affirm forfeiture because the objection was raised only in BIA briefing long after the in absentia order.
  • Jiang v. U.S. Att'y Gen., 568 F.3d 1252 (11th Cir. 2009)
    The court relied on Jiang for two principles: (i) the petitioner bears a heavy burden to show evidence is material for reopening, and (ii) changes in personal circumstances do not equate to changed country conditions. This directly supported denying the asylum-based reopening request.

3.2 Legal Reasoning

A. Lack of Notice and the Untimely Motion to Rescind

Statutorily, a motion to rescind an in absentia order generally must be filed within 180 days, but the time limit does not bar a motion when the noncitizen shows he did not receive notice. The court focused on how notice can be proven: under the INA, mailing to the last provided address with proof of attempted delivery can suffice.

The agency had evidence that the notice of hearing was correctly addressed, mailed to Hernandez-Galindo’s provided address, and not returned. Under Matter of M-R-A- (as recognized in Dragomirescu v. U.S. Att'y Gen.), that evidence triggers a presumption of receipt. The panel agreed that Hernandez-Galindo’s statement that he did not receive it—without corroboration—did not compel a contrary conclusion, particularly in light of Garland v. Ming Dai (adjudicators are not required to accept testimony as dispositive).

The panel also rejected the argument that the NTA’s missing time/place established lack of notice, pointing to Campos-Chaves v. Garland for the proposition that a later notice of hearing can supersede the earlier NTA as the operative notice.

B. Forfeiture of the Defective-NTA Objection

Even assuming an NTA missing time/place is “defective,” the opinion treats that defect as a claim-processing issue, not a jurisdictional flaw. Under Perez-Sanchez v. U.S. Att'y Gen. and Avila-Santoyo v. U.S. Att'y Gen., such objections can be forfeited. Under Leger v. U.S. Att'y Gen. (citing In re Fernandes), the objection must be raised before the close of proceedings in immigration court.

The critical bridge in this case is procedural: Hernandez-Galindo tried to excuse delay by arguing he lacked notice and thus had no chance to object. But because he failed to establish lack of notice (Part A), the Board could reasonably conclude he did have an opportunity to object earlier and therefore forfeited the claim.

C. “Changed Country Conditions” Exception for Asylum-Based Reopening

The statute allows an otherwise untimely motion to reopen to seek asylum/withholding when it is “based on changed country conditions” and supported by material evidence that was previously unavailable. The panel applied Jiang v. U.S. Att'y Gen. to emphasize the petitioner’s heavy burden and the need to show country-level change—not merely heightened individualized risk.

The court agreed with the government’s framing that the petitioner must provide a meaningful comparison between conditions at the time of the original proceedings (2002) and conditions at the time of the motion (2023). Because Hernandez-Galindo did not submit evidence describing El Salvador’s conditions in 2002, the Board could reasonably find the evidentiary record inadequate for the required comparison.

Additionally, the Board read the submitted materials as showing decreasing homicide/crime trends in the relevant period (e.g., reductions through 2022), and the court found no abuse of discretion in that assessment. The state-of-emergency evidence was deemed not material to the claimed fear of gang persecution in the way required to show a qualifying country-conditions change.

3.3 Impact

  • Notice-based rescission remains difficult without corroboration: This decision underscores that a petitioner’s assertion of non-receipt—standing alone—may not overcome the presumption of receipt when DHS shows proper mailing to the last provided address. Practically, affidavits from household members, neighbors, or others familiar with mail handling, along with documentary proof of address stability or mail delivery problems, may be pivotal.
  • Defective-NTA claims are time-sensitive: By reaffirming forfeiture principles for missing time/place objections, the opinion reinforces that such claims must be raised early (before close of IJ proceedings), and that a later attempt to resurrect them will likely fail—especially where lack-of-notice is not proven.
  • Changed-conditions reopening requires a baseline record: The ruling highlights a recurring pitfall: presenting only “current conditions” evidence. Without evidence of conditions at the time of the prior hearing/order, the agency can deny reopening for failure to demonstrate a material “change.”
  • Personal developments do not substitute for country changes: The court’s reliance on Jiang reiterates that marriage, financial status, or individualized targeting may be relevant to fear, but they do not satisfy the statutory “changed country conditions” gateway for an untimely motion.

4. Complex Concepts Simplified

  • In absentia removal order: a removal order entered because the noncitizen did not appear for the hearing.
  • Motion to rescind vs. motion to reopen: rescission seeks to undo an in absentia order (often by showing lack of notice or qualifying circumstances); reopening seeks a new hearing to pursue relief (e.g., asylum). A single filing can request both.
  • Presumption of receipt (mailbox presumption): if the government proves it mailed a correctly addressed notice to the last address the noncitizen provided, the adjudicator may presume the notice was received unless the noncitizen provides sufficient evidence to rebut that presumption.
  • Claim-processing rule and forfeiture: some procedural defects (like an NTA missing time/place) do not eliminate the immigration court’s power to act; they are procedural rules that must be invoked promptly. If raised too late, they are “forfeited.”
  • Matter of Lozada requirements: procedural steps the agency typically requires to assert ineffective assistance of counsel (commonly including an affidavit detailing the agreement and alleged failures, notice to prior counsel with opportunity to respond, and a complaint to disciplinary authorities or an explanation why not).
  • Changed country conditions: a statutory exception allowing late reopening for asylum/withholding when conditions in the home country have materially changed since the prior proceedings—shown through comparative evidence, not just present-day reports.

5. Conclusion

Santos Ramiro Hernandez-Galindo v. U.S. Attorney General consolidates three practical lessons from existing doctrine: (1) a properly mailed hearing notice creates a presumption of receipt that a late-filed rescission motion may not overcome with uncorroborated denial alone; (2) time/place defects in a notice to appear are forfeitable claim-processing objections that must be raised within immigration court proceedings; and (3) the “changed country conditions” reopening exception requires evidence enabling a comparison between past and present conditions, while changes in personal circumstances—even if they increase risk—do not satisfy the statutory gateway.