|Description of Issues:
The certified questions are as follows:
- An order of removal entered in absentia may be rescinded upon a motion to reopen if the movant rebuts the slight presumption that he received notice of the removal hearing sent by regular mail. Sicat has submitted sworn affidavits showing that he never received the government’s notices, had no motive to avoid his removal hearing due to his eligibility for an I-130 petition, and had a diligent appearance record at prior hearings. Did the IJ and the BIA abuse their discretion in concluding that this evidence was insufficient to rebut the slight presumption of effective service for purposes of reopening the proceedings?
- In a motion to reopen, a movant need only demonstrate prima facie eligibility for relief upon the reopening of his proceedings. Sicat has demonstrated that his marriage is bona fide, and that he will diligently pursue the pending I-130 and adjustment of status. Did the IJ and the BIA err in determining that Sicat is statutorily ineligible for relief?