Regular Mail Not Entitled to Strong Presumption of Receipt
March 1, 2008
Author: Catherine M. Callery (Kate)| Louise M. Tarantino
In a case seeking review of an order of the Board of Immigration Appeals (BIA), the Second Circuit laid down principles that may be very applicable in our Social Security cases. The Second Circuit held that the BIA improperly applied a strong presumption of receipt of a notice that was sent by regular mail. The Court noted that although some presumption of receipt applies to mail sent by regular mail, the presumption is less stringent than that for mail sent certified.
In Silva v. Mukasey, --F.3d--, 2008 WL 451148 (2d Cir. Feb. 21, 2008), decided by the Second Circuit on February 21, 2008, the Court remanded the case back to the BIA to apply a less stringent standard in determining whether a notice sent by regular mail was received. The BIA had erroneously applied a stringent presumption of delivery standard that was more appropriate for delivery by certified mail. When the petitioner failed to meet that standard by submitting only an affidavit (“a bare claim of non-receipt”) as opposed to documentary evidence from the Postal Service of affidavits from third parties, the Court held that the BIA had abused its discretion.
Since our Social Security claimants receive all their notices by regular mail, and routinely advise us that they did not receive notices that SSA alleges to have sent, this case should give a great deal of guidance to the agency and to District Courts in determining whether a claim can go forward.
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