we're joined here today by supervising counsel mr gary watt and so yes vera i will be reserving two minutes of my time for a bottle became the immigration judge abused his discretion by coming to the iranians legal conclusion that mr c caught was statutorily and eligible for at least as this court is held in gang versus lynch an immigration judge abuses his discretion when he acts contrary to law and here by making the finding was the conclusion to letter was received was justifiable or not yes your honor but the immigration judge in determining whether mr simcox affidavits the statements made there in sufficiently prove that he did not receive the of non receipt of the letter no your honor let me ask you this was either the notice of hearing that was sent for on november sixteenth twenty fift evidence to consider per this court's holding insulter versus ins and which this court distinguished the type of evidence necessary to rebut the presumption of effective service by certified mail which would be evidence such as  delivered mail from the post office but this court explicitly stated that that type of evidence is inappropriate for cases dealing with regular mail the last element of soul that was other circumstances right yes your honor this is another circumstance is and a circumstance that is prohibited by this court's decision insulted because that evidence goes toward certified mail cases and here when we're dealing with a slight a low burden of proof then approach that type of a matter of common sense don't we receive letters from the post office every day not every day but whenever we read them because we don't write them anymore with e mail but that undeliverable is not a normal practice your honor that that does happen at times but here mr stickler is attesting in his affidavit that he's having mental problems and so no no he said he didn't say you have real problems he said just the opposite he didn't say anything about having other mail problems he said he wasn't getting immigration mail not that he wasn't getting i r s mail not that he wasn't getting d m v mail not that he wasn't getting advertising mail but only immigration mail he wasn't getting that's very selective non delivery is not is not circumstantial evidence that maybe he was getting mail well your honor two points first however in artfully mr sic caught composes affidavit that doesn't necessarily mean he discretion and that was in making an impermissible credibility determination on a motion to reopen and this court has consistently held since the scene versus gonzales and gang versus lynch that credibility determinations  wholly inappropriate on motions to reopen because they are conducted without i can let me ask you that so i think what is the cause if we were to agree with you that the relatively we record there is sufficient evidence to show that he did not receive notice and the court could follow it but there are a lot of questions for example i mean if i want to decide whether to believe him or not i'd like to know where it's at because he lives are there other apartments eligible for adjustment or not we are you referring to at the time of his scheduled removal hearing and that's that's a question that i have because the in the briefing it was argued that he was not eligible for adjustment at the time that he would have had a scheduled hearing what's your position on that your honor that is an erroneous legal conclusion because the question is whether an individual is statutorily eligible for relief and as the government noted  thirty your honor there's a distinction between whether the application was pending or whether statutorily he was eligible to do that the whole point of that factor is to determine whether that and the movement had a motive to address we don't have the emblems we don't have the envelopes we just have a copy of the government's notice in which they say what address they were mailing to but that's precisely the issue with regular mail that it doesn't produce any evidence and that's that's why this court insults have created such good morning your honour's jonathan ross for the united states attorney general the primary issue in this case certainly is the presumption of delivery that attaches to mail that is sent to hear notices that is send even through regular mail  i agree with my colleague that the presumption for regular mail is less than that of certified mail however in this case the immigration judge found it he didn't abuse his discretion when he said that even for the slight  have it seems to me what would give rise to lead presumption of receipt under the common law to me i don't necessarily agree your honor in this situation and when the hearing notices mailed question which was the fact that very briefly number one there was a i want to correct the record petitioner today says that they challenge that the circumstantial evidence that the mailing went out from the that was never argued before today in fact this is the very first time that they're saying that circumstantial evidence is being challenged moreover claim and i don't understand what you mean that the circumstantial evidence that the because the i'm sorry was actually judge based that said it the circumstantial evidence that the mailing went out from the immigration court by virtue of the envelopes not being returned that was never challenged before today what do you think it was and challenge w d there is there is circumstantial evidence that by virtue of it not being returned that it is the liver to the last mailed address mr hall what i want to know is has anybody at the t h s put in a returned no you're wrong so how do you know it wasn't returned i'm simply by virtue that it's not in the record that's that is the best evidence we have but adversely would be a burden to put and that wasn't returned and he didn't do that that's correct and so we have no idea whether it was returned to may have been returned that's correct your honor i'd simply know that rush is entirely i'm sorry and so it washes it's not circumstantial evidence and if anything because it isn't evidence i understand your honor turning however to the this is really a question of motive and if you look at the salta case it's progeny there it motive is a very important part of the standards of the out of the subjects that's considered an m r a motive in this case the courts have historically looked at what is the petitioners motive to appear in court and in fact motion that the motion to reopen was indeed reversed in those cases where it was in the reverse in those cases where the record evidence brought that up because although they did show up ten different times they only showed up when things were going their way they only showed up when they had relief pending before the court at the time that he did not show up there was no relief available and he had already conceded his remove ability so therefore whether he showed up or not the result was going to be the same he could have showed up and said i and the day before he showed up submitted a new application and asked to stay the proceedings at would put a pretty usual thing to do now perhaps however he had his original application was denied by us c a s after you went to the the us c i s interview to discuss the bona fides of his marriage to his current wife oh i thought it was denied because he didn't show up at the last year  didn't show up to the mirror he said why didn't show up and he and they said he can apply again or it could be another application and there could have been another application you're absolutely correct this was in january twenty fifth teen that he got his denial month here is any negative implication from the fact that he wasn't eligible and if he had gotten the hearing on time as he got the notice of hearing he could have put in an application and he could have gotten a delay in all likelihood until the application was set on yes you are however much of an implication i'm sorry it's not i mean the only reason that that negative implications were worth anything because it's an implication that if he shows up he's going to be immediately deported but that isn't true here but really it's a question of motive if you really had it he had no motive to go to the immigration court either way because he had already conceded his remove ability and he didn't have any pending applications before that were  ut he could have there's no doubt that he could that but he didn't and this was something that you very easily could have in fact that he did before in fact he was oh not only eligible through his spouse but he was also eligible through his adult daughter who also submitted one of the affidavits turning to the that just proves more that he could have he could have but he did and that's what without having a pending application before the court the immigration judge was absolutely did not abuse his discretion in holding that he was ceded his remove ability and he had no relief upon which the court could grant but that's a different question and i don't think anybody is contending that the immigration judge in r based on the information he had and correctly determined what was true while he was in absentia that's not the issue certainly however this is the abuse of discretion standard is very deferential and especially considering that this was affirmed by a three member panel of the board of immigration appeals the immigration judge clearly weighed all the evidence in page two of the i g decision he considers the fact that yes he did show up for ten previous hearings yes he does have  substantial equities in the united states however based on a number of other factors determine that mr scott was not you something why as i understand the question there is a presumption of or see that is rebutted fairly easily but ordinarily again in the common law context all that kitchen was a hearing it doesn't mean you win as to whether that letter was received or wasn't received well why doesn't it this hearing that he says he didn't know about why don't we just get them in a room with an i chained let somebody just side where they got that letter and not yes your honor however that's that's not how previous cases in the ninth circuit and elsewhere have decided  the cases where they were the ninth circuit is determined that the there was an abuse of discretion in the motion to reopen should have been granted were cases were very clearly the petitioner had an incentive to show up  deferential standard about substantial evidence from what you're out of the this is the ability of the immigration judge to exercise his or her discretion in incrementing a motion to reopen under these circumstances which are different from salt and i realize that i'm i'm over my time now however i'm happy to answer any other questions that the panel has all right thank you very fake you very much questions you your honour's while this court does give deference to immigration judges it cannot give deference to their impermissible credibility determinations made on motions to reopen here the immigration judge explicitly stated that the court was determined whether the respondents self serving statements made up the cusp of the removal period rebut the presumption of regular mail delivery citing to an out of circuit case for that proposition however this court has explicitly held in both seamers is go that the self serving nature of any affidavit is in support of a motion to reopen is not inappropriate be a basis for discrediting its content that amounts to an illegal error that is an abuse of discretion and although opposing counsel states that the immigration judge balanced the factors this court has held that when an immigration judge impermissibly considers a negative factor then that is an abuse of discretion here the immigration judge clean down to the fact that there was an absence of returned mail that type of probative evidence as this court stated insult is reserved for certified mail cases it was an inappropriate for him to rely on that factor in this regular make male case according