Perez-Portillo v. Garland

The test for whether an individual produced sufficient evidence to overcome the presumption of service by regular mail is “practical and commonsensical rather than rigidly formulaic,” and that in many cases the only proof may be the individual’s statement as well as circumstantial evidence. Sembiring v. Gonzales, 499 F.3d 981, 988 (9th Cir. 2007).

Perez-Portillo received her Notice to Appear and copy of the Immigration Judge (IJ)’s removal order by mail at her listed address, but claimed she did not receive the Notice of Hearing (NOH) notifying her that the hearing date had been moved up. After receiving the removal order, Perez-Portillo presented herself to the immigration court to remedy the issue and timely filed a pro se motion to reopen, which the IJ denied. The test for whether an individual produced sufficient evidence to overcome the presumption of service by regular mail is “practical and commonsensical rather than rigidly formulaic,” and that in many cases the only proof may be the individual’s statement as well as circumstantial evidence. Sembiring v. Gonzales, 499 F.3d 981, 988 (9th Cir. 2007). The record showed circumstantial evidence corroborating Perez-Portillo’s claim that she did not receive the NOH by mail. She showed her lack of motive to avoid the immigration court by filing her pro se motion after receiving the removal order. If her statements were credible, they in addition to the circumstantial evidence could overcome the rebuttable presumption of delivery that accompanies service by mail. Therefore, it was erroneous for the IJ to fail to consider Perez-Portillo’s credibility. Petition granted and remanded.