Precedents Cited and Their Influence

Alrefae v. Chertoff, 471 F.3d 353 (2d Cir. 2006)

• Core principle: At the rescission stage, the “central issue” is whether the alien actually received the notice, not whether the notice was properly mailed (which governs entry of the in absentia order).
• Influence here: The Second Circuit faulted the IJ for misframing the inquiry as proper service and held the BIA failed to cure the error, directly invoking Alrefae’s standard.

Lopes v. Gonzales, 468 F.3d 81 (2d Cir. 2006)

• Presumption of receipt via regular mail is permitted if accurately addressed and mailed in accordance with normal office procedures.
• No requirement that an NTA be provided in any particular language.
• Remand is appropriate where the agency fails to consider evidence suggesting nonreceipt (e.g., disclosure of removal order in other filings, pending immigration benefits, address updates to the agency).
• Influence here: The panel accepted the initial presumption but emphasized the need to consider rebuttal evidence (e.g., ICE address notices, diligence), echoing Lopes’s remand rationale.

Silva-Carvalho Lopes v. Mukasey, 517 F.3d 156 (2d Cir. 2008)

• Characterizes the regular-mail presumption as “slight” and instructs adjudicators to assess all evidence “in a practical fashion, guided by common sense.”
• Influence here: The panel invoked this standard to require a holistic, common-sense evaluation of petitioners’ affidavits and corroborating evidence.

Matter of M-R-A-, 24 I. & N. Dec. 665 (B.I.A. 2008)

• Landmark BIA decision outlining nonexclusive factors for evaluating nonreceipt, including:
  1. The movant’s affidavit;
  2. Affidavits from knowledgeable individuals;
  3. Actions upon learning of the in absentia order and diligence;
  4. Any prior affirmative application for relief (incentive to appear);
  5. Any applications or prima facie eligibility for relief before EOIR (incentive to appear);
  6. Prior attendance at immigration court hearings;
  7. Other circumstances indicating possible nonreceipt.
• Influence here: The Second Circuit specifically cited M-R-A- and faulted the BIA for failing to analyze the petitioners’ evidence under these factors.

Ke Zhen Zhao v. U.S. Department of Justice, 265 F.3d 83 (2d Cir. 2001)

• Defines abuse of discretion as acting arbitrarily or capriciously, including failing to provide a rational explanation or relying on conclusory reasoning.
• Influence here: The panel applied this standard to conclude the agency abused its discretion by misframing the issue and failing to consider relevant evidence.

Wangchuck v. Department of Homeland Security, 448 F.3d 524 (2d Cir. 2006), and Xue Hong Yang v. U.S. Department of Justice, 426 F.3d 520 (2d Cir. 2005)

• Scope of review: The court reviews the BIA’s decision and those portions of the IJ’s decision the BIA relied upon.
• Influence here: The panel evaluated both the BIA decision and the IJ’s reasoning to identify and correct the legal errors.

Legal Reasoning

The statutory framework is set by 8 U.S.C. § 1229a(b)(5). Under subsection (A), if, after written notice, a noncitizen does not attend a removal hearing, they may be ordered removed in absentia if the government proves proper written notice and removability by clear, unequivocal, and convincing evidence. Under subsection (C)(ii) and its implementing regulation (8 C.F.R. § 1003.23(b)(4)(ii)), such an in absentia order “may be rescinded” on a motion filed at any time if the movant demonstrates they did not receive the requisite notice.

The Second Circuit clarified, consistent with Alrefae, that the rescission inquiry turns on actual receipt, not merely whether notice was properly mailed. While a presumption of delivery arises for accurately addressed notices sent by regular mail (Lopes), that presumption is “slight” (Silva-Carvalho Lopes) and must be tested against the totality of evidence, including declarations, corroboration, diligence, incentives to appear, prior attendance, and other contextual facts (M-R-A-).

Applying that framework, the panel made two pivotal determinations:

• Presumption of receipt was properly invoked: The hearing notice was mailed to the address of record. The petitioners’ argument that they were unaware of address-update obligations because the NTA was in Hindi failed for two reasons: (1) the record reflected Mr. Vaghari’s “perfect” Hindi, and (2) there is no statutory requirement that an NTA be provided in any particular language (Lopes).
• But the agency’s analysis then went off track: The IJ redefined the key question as whether notice was “properly served,” rather than whether the petitioners actually received the hearing notice, and based denial on the address-update obligations embedded in the NTA. This misidentification of the issue directly contravenes Alrefae. The BIA cited the correct standard and M-R-A- but did not engage the evidence or explain why it did not rebut the presumption—an explanatory deficit amounting to abuse of discretion under Ke Zhen Zhao.

The panel therefore remanded with specific instructions to consider the petitioners’ evidence as to nonreceipt and diligence, including:

• Claims that Mr. Vaghari promptly informed Immigration and Customs Enforcement (ICE) of an address change during a check-in;
• Evidence that a friend checked the status of the case;
• Evidence that he attended all ICE check-ins;
• Evidence that he promptly retained counsel to move to reopen once he learned of the in absentia order.

The court’s reliance on Lopes for remand further signals that updating ICE (even if not sufficient to update the immigration court’s records) is nevertheless probative of diligence and lack of intent to evade proceedings, informing a common-sense assessment of nonreceipt.

Impact and Practical Implications

Although nonprecedential, this summary order will likely influence how IJs and the BIA within the Second Circuit handle rescission motions based on lack of notice:

• Demand for issue discipline: Adjudicators must frame and answer the actual receipt question and avoid conflating notice sufficiency at the in absentia stage with the rescission inquiry.
• Mandatory evidence engagement: Agencies must address the M-R-A- factors and provide a reasoned explanation for why the record does or does not overcome the presumption of receipt. Failure to do so invites remand.
• Regular mail presumption remains “slight”: The decision reinforces that the presumption tied to regular mail is easily rebuttable with credible, corroborated, and diligent conduct.
• Language-based challenges are limited: Without statutory or regulatory language requirements for the NTA or hearing notice—and where the record shows comprehension—language arguments alone will not carry a rescission motion.
• Diligence matters: Prompt efforts to learn about case status, attendance at ICE check-ins, timely retention of counsel, and disclosure of the in absentia order in other contexts (as in Lopes) all serve as strong evidence of nonreceipt and incentive to appear.
• BIA review responsibilities: It is not enough for the BIA to cite M-R-A-; it must apply it to the record, especially when the IJ’s analysis is deficient. The BIA’s failure to cure an IJ’s error can itself be an abuse of discretion.

For practitioners, the opinion underscores the importance of a well-documented record in rescission motions:

• Submit detailed affidavits describing address changes, mail-handling practices, and the absence of receipt.
• Provide corroboration: declarations from household members, friends, or community contacts; proof of ICE check-ins; mail logs; and any documentary evidence of diligence.
• Demonstrate incentive to appear: prior or pending applications, prima facie eligibility, or prior appearance history.
• Clarify that notifying ICE does not update EOIR records, but explain such notices as evidence of diligence and good faith.

Finally, because this is a summary order, litigants may cite it under FRAP 32.1 and Local Rule 32.1.1 (with “SUMMARY ORDER” notation and appropriate service), but should rely primarily on the controlling precedents the court applies and reinforces here (Alrefae, Lopes, Silva-Carvalho Lopes, and Matter of M-R-A-).