FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEDA ODETH HERNANDEZ-
VELASQUEZ,
No. 06-75728
Petitioner,
v. Agency No.
A078-197-977
ERIC H. HOLDER Jr., Attorney
OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 9, 2010—San Francisco, California
Filed July 14, 2010
Before: Stephen Reinhardt and Jay S. Bybee, Circuit Judges,
and James V. Selna, District Judge.*
Opinion by Judge Reinhardt
*The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
10233
HERNANDEZ-VELASQUEZ v. HOLDER 10235
COUNSEL
Stephen Tollafield, Hastings College of the Law, University
of California, San Francisco, California; Gary A. Watt, The
10236 HERNANDEZ-VELASQUEZ v. HOLDER
McNamara Law Firm, Walnut Creek, California, for the peti-
tioner.
Andrea Gevas, U.S. Department of Justice, Civil Divi-
sion/Office of Immigration Litigation, Washington, DC; Kurt
B. Larson, U.S. Department of Justice, Civil Division/Office
of Immigration Litigation, Washington, DC; Stacy Stiffel
Paddack, U.S. Department of Justice, Civil Division/Office of
Immigration Litigation, Washington, DC; Ronald E. LeFevre,
Department of Homeland Security, San Francisco, California,
for the respondent.
OPINION
REINHARDT, Circuit Judge:
Leda Odeth Hernandez-Velasquez (“Hernandez”), a native
and citizen of Honduras, petitions for review of the Board of
Immigration Appeals’(“BIA”) denial of her motion to reopen
and reinstate proceedings, which the BIA construed as a
motion to reissue its decision denying her administrative
appeal. Hernandez filed a declaration in which she declared
under penalty of perjury that she did not receive notice of the
BIA’s denial of her administrative appeal because the BIA
mailed its decision to her previous address, at which she no
longer resided. Hernandez also declared that she timely sub-
mitted a “Change of Address” form to the BIA providing it
with her correct new address, before it issued its decision. The
BIA, in a single paragraph decision, held that there was no
evidence to corroborate Hernandez’s claims. Specifically, it
stated that there was no proof that it received the Change of
Address form that Hernandez declared under penalty of per-
jury that she had mailed, and that its decision had not been
returned by the postal service; therefore it held that there was
no apparent error in service.
HERNANDEZ-VELASQUEZ v. HOLDER 10237
We have jurisdiction to review the BIA’s denial of motions
to reopen in the exercise of the discretion committed to it by
regulation. See Kucana v. Holder, 130 S. Ct. 827, 831 (2010);
Singh v. Gonzales, 494 F.3d 1170 (9th Cir. 2007). We hold
that the BIA abused its discretion in failing to discuss Her-
nandez’s declaration and the attached photocopied Change of
Address form in its decision, thereby failing to consider the
“weight and consequences” of that evidence in its denial of
her motion to reopen. Singh, 494 F.3d at 1173. The BIA was
required to undertake such an analysis before ruling on the
veracity of both Hernandez’s claim that she mailed a Change
of Address form and her claim that she did not receive notice
from the BIA of its decision. We therefore grant Hernandez’s
petition and remand this matter to the BIA for further pro-
ceedings.
I. BACKGROUND
Hernandez is a 38-year-old native and citizen of Honduras,
who entered the United States without inspection in 1989, and
has lived continuously in the United States for the last 21
years. On February 28, 2000, the former Immigration and
Naturalization Service (“INS”) served Hernandez with a
Notice to Appear, charging her with being subject to removal
pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Hernandez appeared
before an Immigration Judge (“IJ”) on February 13, 2004.
The IJ ordered her removed, stating that, on the basis of a
controlled substance conviction, she was “statutorily barred
from cancellation of removal and the Court need not address
other issues with regard to her residence in the United States,
her character, nor the hardship that would . . . befall her law-
ful permanent resident parent and five United States citizen
children.” The IJ also stated that she was “statutorily barred
from voluntary departure at the conclusion of the hearing due
to a felony offense within the five year time period” and
ordered that she be removed to Honduras.
10238 HERNANDEZ-VELASQUEZ v. HOLDER
On December 22, 2004, proceeding pro se, Hernandez filed
a Notice of Appeal with the BIA of the IJ’s December 3,
2004, decision. In a subsequently filed declaration under pen-
alty of perjury, Hernandez declared that she “mailed a change
of address form to the immigration appeals court in August of
2005 when [she] moved.” A copy of that form, “Change of
Address Form, Executive Office for Immigration Review
Form 33,” appended to Hernandez’s declaration, shows that
it was simultaneously served on the Department of Homeland
Security District Counsel’s Office. The form gave notice that
Hernandez had moved from the address previously on file,
[###]1 Benton Way, Los Angeles, CA 90026, to her new
home, [###] S. Westlake Ave. #101, Los Angeles, CA 90057.
On October 21, 2005, the BIA summarily affirmed, without
opinion, the IJ’s decision and removal order. Hernandez
stated in her subsequently-filed declaration that she received
no notice of this decision by the BIA. In the declaration, Her-
nandez stated that “[o]n September 14, 2006 I called the 800
immigration court information number because I had not
received any written notice regarding my appeal. By phone I
was informed that my appeal had been dismissed on October
21, 2005. I never received any letter regarding the decision.”
The BIA had mailed notice of the opinion and a cover letter
to Hernandez at [###] Benton Way, Los Angeles, CA 90026,
the address at which her declaration and Change of Address
form stated that she no longer lived, and not to the new
address, [###] S. Westlake Ave. #101, Los Angeles, CA
90057.
On October 19, 2006, Hernandez filed a Motion to Reopen
with the BIA, seeking to “reinstate/reopen proceedings to
allow [her] to be properly notified of the BIA decision and
thus allow [her] an opportunity to timely pursue her legal
alternatives.” The motion stated that Hernandez “notified the
1
To respect Hernandez’s privacy, we have redacted her precise old and
new street addresses. The form correctly listed the street number for each.
HERNANDEZ-VELASQUEZ v. HOLDER 10239
BIA of an address change to [###] S. Westlake Ave., Apt.
#101, Los Angeles, CA 90057 on August 17, 2005.” It also
stated that Hernandez “never received the decision from the
BIA.” The motion was accompanied by the aforementioned
declaration under penalty of perjury in which Hernandez set
forth the facts underlying the claims that she made in the
motion. In addition, Hernandez appended two Change of
Address forms. One of the forms is dated October 6, 2006.
This form states that Hernandez’s current address is [###] S.
Westlake Ave. #101, Los Angeles, CA 90057. The other form
is a photocopy of the Change of Address form that Hernandez
contends that she submitted on August 17, 2005. The photo-
copied form, labeled “copy” and dated August 17, 2005, also
provides the BIA with the Westlake Avenue address.
On November 21, 2006, the BIA denied Hernandez’s
motion in a single paragraph. The BIA decision states:
The respondent has filed a motion to reopen and
reinstate the Board’s prior October 21, 2005, deci-
sion, we will construe the motion as a motion to reis-
sue. The motion is denied, as the decision was
mailed to the address provided by the respondent on
record. The respondent states that this Board was
provided a copy of a Change of Address Form (Form
EOIR-33) containing her current and correct address
as [###] S. Westlake Ave., Apt. #101, Los Angeles,
CA 90057, dated August 17, 2005. We note from the
record of proceeding, that there is no evidence to
corroborate this claim. Moreover, our prior decision
was not returned to the Board undeliverable. As
there is no error attributable to the Board in the ser-
vice of its decision, we decline to accept the motion
sua sponte. 8 C.F.R. § 1003.2 (a). Accordingly, the
motion is denied.
II. ANALYSIS
In the instant petition, Hernandez appeals only the BIA’s
order denying her motion to reopen and reissue. Our review
10240 HERNANDEZ-VELASQUEZ v. HOLDER
is, therefore, limited to consideration of that order, rather than
the merits of Hernandez’s underlying claim for cancellation of
removal. See INA § 242(b)(4), 8 U.S.C. § 1252(b)(4). We
review questions of law, including constitutional claims, de
novo. Masnauskas v. Gonzales, 432 F.3d 1067, 1069 (9th Cir.
2005). We review the BIA’s denial of motions to reopen for
abuse of discretion. Lainez-Ortiz v. INS, 96 F.3d 393, 395 (9th
Cir. 1996). The BIA abuses its discretion when it acts “arbi-
trar[ily], irrational[ly], or contrary to law.” Ontiveros-Lopez v.
INS, 213 F.3d 1121, 1124 (9th Cir. 2000). An error of law is
an abuse of discretion. See Mejia v. Ashcroft, 298 F.3d 873,
878 (9th Cir. 2002).
[1] Here, the BIA’s decision is “contrary to law,” because
it conflicts with our prior holding in Singh v. Gonzales, 494
F.3d 1170 (9th Cir. 2007). In Singh we held that when a peti-
tioner offers evidence, in the form of an affidavit, tending to
show that the BIA failed to comply with its notice obligations,
the BIA must consider the “weight and consequences” of that
affidavit before denying the petitioner’s motion to reopen and
must “specifically address what procedures or processes exist
to assure that petitioners are notified of the BIA’s decisions.”
Id. at 1173. We held that the BIA decision denying Singh’s
motion to reopen and reinstate/reissue was insufficient
because it failed to provide any explanation of how the BIA
reached its conclusion that its prior decision had been prop-
erly mailed to Singh, and because it failed to consider prop-
erly the affidavits submitted by Singh and his attorney stating
that Singh had not received a copy of that decision.2 We there-
fore held that the BIA was required, at a minimum, to con-
sider whether Singh’s affidavit rebutted the presumption of
proper mailing of the notice by the BIA. Id. We stressed that
affidavits about mailing or receipt can play a crucial role as
rebuttal evidence because “the only evidence regarding mail-
2
Although in Singh affidavits were submitted by both the petitioner and
his counsel, it is not necessary for a petitioner to produce a separate decla-
ration from counsel.
HERNANDEZ-VELASQUEZ v. HOLDER 10241
ing petitioners would have is information about their own
receipt or nonreceipt of the decision.” Id.
The BIA’s ruling on Hernandez’s motion to reopen/reissue
rejects two specific factual contentions that she made. First,
it rejects her contention that she timely filed a Change of
Address form. Second, it rejects her contention that she did
not receive notice of its decision. In both instances, we hold
that the BIA impermissibly failed to consider the “weight and
consequences” of the evidence that Hernandez submitted in
support of her factual claims.
A. The BIA failed to weigh the evidence that Hernandez
submitted in support of her claim that she mailed a
Change of Address form to the BIA
[2] It is a settled principle of our case law that the BIA
enjoys a rebuttable “presumption of mailing” when it issues
a decision accompanied by a properly addressed and dated
cover letter. Such a cover letter creates a rebuttable presump-
tion of mailing to the alien on the date of that letter. See
Haroutunian v. INS, 87 F.3d 374, 375 (9th Cir. 1996). In
Singh we held that the presumption of mailing that attaches to
documents sent under such a cover letter may be rebutted by
affidavits of nonreceipt by a petitioner or his counsel and that
the BIA was required to consider the “weight and conse-
quences” of the petitioner’s evidence along with that provided
by the BIA. 494 F.3d at 1172-1173. Under our precedent,
therefore, the BIA has a duty to weigh all relevant evidence
when there is a factual dispute about whether a document has
been mailed by the BIA to a petitioner. Id. In particular, the
BIA is required to weigh and consider the evidence submitted
by petitioners such as Hernandez, including affidavits or dec-
larations. Id.; see also Mohammed v. Gonzales, 400 F.3d 785,
793 (9th Cir. 2005). We now hold that, consistent with Singh,
the BIA also has a duty to weigh all relevant evidence, includ-
ing affidavits or declarations, in cases in which there is a fac-
10242 HERNANDEZ-VELASQUEZ v. HOLDER
tual dispute about whether a document has been mailed by a
petitioner to the BIA.
[3] Hernandez submitted a declaration under penalty of
perjury that she mailed a copy of the Change of Address form
dated “8-17-05” to “the immigration appeals court,” i.e., to
the BIA. A copy of that form, appended to Hernandez’s decla-
ration, shows that it was also served simultaneously on “the
District Counsel for the Department of Homeland Security
(DHS) at 606 S. Olive Street, 8th Floor, Los Angeles, CA
90014.” The BIA’s one-paragraph decision denying Her-
nandez’s motion to reopen/reissue does not even mention the
declaration that Hernandez submitted under penalty of per-
jury, nor does it refer to the photocopy that Hernandez pro-
vided of the completed Change of Address form that she
claimed to have mailed. Instead, the decision simply states:
“We note from the record of proceeding, that there is no evi-
dence to corroborate this claim.” It thus fails to consider the
weight and consequences of the evidence that Hernandez sub-
mitted in support of her account of her mailing to the BIA.
[4] Although, as we held in Singh, the BIA is not required
to undertake an evidentiary hearing to exhaust every possible
element of an alien’s factual claim, it is required to demon-
strate that it has, at a minimum, considered any declaration
and accompanying documents. It is also required to provide
a reasonable explanation of the weight that it has given to an
alien’s submissions as evidence in support of his claim. 494
F.3d at 1172-1173. Here, the BIA’s pro forma statement that
“there is no evidence to corroborate [Hernandez’s] claim,”
contains no discussion whatsoever of the evidence provided
along with that claim. Therefore, in accordance with our prior
ruling in Singh, we hold that the BIA abused its discretion in
failing to consider Hernandez’s declaration and supporting
documents before rejecting her contention that she timely
mailed a Change of Address form to the BIA.
HERNANDEZ-VELASQUEZ v. HOLDER 10243
B. The BIA failed to weigh the evidence that Hernandez
submitted in support of her claim that she did not receive
notice of the BIA’s decision
The BIA’s decision in this case also conflicts with our
holding in Singh with respect to Hernandez’s claim that she
did not receive a copy of the BIA’s decision. As we explain
supra, the BIA’s one-paragraph ruling on Hernandez’s motion
to reopen and reinstate/reissue fails to mention that Hernandez
submitted a declaration in support of her motion, let alone to
undertake, as required by Singh, any weighing of the evidence
contained in that declaration and the supporting documents to
inform its conclusion that Hernandez received adequate notice
of its decision.
[5] Hernandez’s declaration explains that she did not
receive the BIA’s decision of October 21, 2005, and provides
a plausible explanation as to why—her change of address.
Both Hernandez’s declaration, in which she stated that she
mailed the Change of Address form to the BIA prior to the
issuance of its October 21, 2005, decision, and the photocopy
that she provided of that Change of Address form constitute
colorable evidence in support of her claim that the BIA did
not meet its obligations under 8 C.F.R. § 10031(f)(3) to pro-
vide her with adequate notice of that decision. The BIA was
required to consider the “weight and consequences” of that
declaration. Singh, 494 F.3d at 1173; see also Mohammed,
400 F.3d at 793 (holding that the BIA abused its discretion
when it failed to consider and weigh all of the evidence sub-
mitted by a petitioner).
[6] The BIA’s failure to mention Hernandez’s declaration,
or to mention that a copy of the Change of Address form was
supplied to the BIA along with that declaration, inevitably led
to its failure to consider the weight and consequences of the
declaration and the accompanying documents as compared to
its own records, “procedures or processes,” in determining
whether Hernandez received adequate notice of its decision.
10244 HERNANDEZ-VELASQUEZ v. HOLDER
Singh, 494 F.3d at 1173. The BIA’s additional statement that
“our prior decision was not returned to the Board undeliver-
able” also fails to meet Singh’s requirement that the BIA
“specifically address” which procedural safeguards it
employed to ensure that its decision was mailed to a petition-
er’s correct address. Id. There is no discussion in the BIA’s
decision of how exactly a Change of Address form might
appear in the “record of proceeding,” nor is there any analysis
of whether the fact that the prior decision had not been “re-
turned to the Board undeliverable” was consistent with any
kind of internal BIA standard for adjudging whether a peti-
tioner had been provided with adequate notice. Accordingly,
without the benefit of the BIA’s reasoning, we find ourselves
unable to decide in the first instance the weight and conse-
quences of Hernandez’s declaration, see id., and unable to
evaluate the relevance of the absence of any record that the
October 21, 2005, decision was returned, unopened, to the
BIA.
[7] In light of the fundamental shortcomings in the BIA’s
one-paragraph decision, we grant Hernandez’s petition and
remand this case to the BIA for further proceedings. The BIA
may want to consider not only what mechanisms it has
adopted to ensure that petitioners are informed of its deci-
sions, but also what administrative procedures it employs to
log in the receipt of Change of Address forms and to ensure
that information contained in those forms is properly
recorded.
GRANTED and REMANDED.