Regina Salta v. Immigration and Naturalization Service

We must determine whether the Board of Immigration Appeals (“BIA”) erred in applying presumptions and burdens of proof tailored to a statute requiring notice by certified mail, where notice was given pursuant to an amended version of the statute allowing the use of regular mail. Because we determine that Petitioner’s lack of notice claim should be considered at an evidentiary hearing applying standards attuned to the amended statute, we grant the petition for review.

Background Facts & Procedural History

Petitioner Regina Salta (“Salta”) attended classes at New York University from 1981-84. She re-entered the United States in June 1985 on a student visa but did not attend any further classes. She has resided here since 1985 and has two U.S. citizen children. She voluntarily approached the INS and asked it to issue an Order to Show Cause so that she could apply for Cancellation of Removal, claiming statutory eligibility for such relief based on her continuous residence in the United States.

The INS sent an initial Notice to Appear at a removal hearing on November 4,1999. Salta received this notice and appeared at the hearing with counsel, but they were advised that the court had…