of notice raised to the b i and if so where in the record is that i'm saying this and that this is the no you're out of that the underlying issue of the regulations that we're focused on in this are based on due process concerns and in this case it's very fact specific looking at whether a notice was properly sent and properly received and whether my client were properly rebutted the presumption of delivery the underlying purpose of those regulations or to carrying out the due far process rights of the alien finds himself in removal proceedings in the sense that's why i say that this is a case about due process but you do have  due process claim that you're trying to raise and that was raised before the correct not explicitly against in saying that the that the rules were not followed and that the rebuttal the affidavit  case of your claim because even if you are alleging a due process violation because there was no notice we have already said there is no liberty interest it's taken a motion to reopen we were focusing on all go to due process and the right of the alien to be heard in a court of law and immigration proceedings that is what has been violated here and that her her interest was that  again in land of the place since the one nine hundred eighty two the u s supreme court held that there's a fundamental thing process right of an alien to have an opportunity to be heard and again of course if there is no notice of the day of that court hearing then there has been no does not appear in court and then also there is a separate section about the aliens receipt of it the rebuttable presumption that is created when a court properly may also notice which can fully satisfied yet still the notice may not receive be received by the person and then there is a focus on that and that is where my client exercised her right to follow a motion to reopen immigration court devaluated out and determine i've got this and i've got that and i believe that she received that a factual determination which we can't don't have jurisdiction here well i would say the other the the circa two thousand and five score to recognize that was the lesson presumption and delivery given that it was not certified mail exactly your honor that is our point that we reckon you're saying that the b i and i j didn't recognise that difference show that it was a credible affidavit in this again the facts were that my client had provided a correct address when she was intercepted at the border entering she gave the correct address in california where she was going to live and hurt your client and support the immigration judge's ruling that your client in that form you're talking about says if you ever have a change of address you need to notify us and i understand she changed her address only after this supposed mailing but with the question being issued telling the truth that she really didn't get this mailing or is she just trying to avoid the very serious immigration consequences of the situation she's now in isn't it relevant that she did not change the address or she was required to do which which indicate she was just trying to avoid being part of the immigration court process well your honor i would say in looking at the timeline and her failure to later subsequently not through a change of address is a bit of a red herring mail and i understand that at this time of this mailing she was still at the address she gave when she was was apprehended at the border but doesn't it show that she wasn't trying to be part of the immigration court process because if she was she would have said ok i'm moving they haven't sent me this letter yet they were supposed to i better let them know where i am because i really want to go to immigration court and stand up for myself well i will say in the affidavit that she submitted with a motion to reopen she does she did receive a notice to appear but of course it did not give a time and date and place of the hearing to be held certainly she i assume you agree at that point she's on notice that she's going to have a hearing yes your hon she did say also in her affidavit that due to her lack of knowledge of how things are done that she thought somehow that she was ok that they had admitted her she she stopped she was interviewed by immigration officers and that she did not know what the process was going to be but the court could say well really she's just hoping to stay under the radar well and that that's when that's and that's their prerogative and then if they make a determination we have this and we have this and we believe this then we don't have any jurisdiction to even hear that the reopening again to go back i would say that at the time that the i suppose gave much more weight to the subsequent failure to probably change of address than her actions when she came in and when she said that she had us and relatives she gave a number of a us citizen sister who could possibly on the motion to reopen and that the judge did not give proper weight to her affidavit which case law says can and should be considered a rebuttal of the presumption of delivery and i just would like to comment  say oh i see this is come back as unpleasurable that actually was raised a few times in the reefs have to be i am before this court by the government to say that the fact that the notice never came back is undeliverable gate was further evidence that she received it but that is not the standard that is that not the law now since one nine hundred ninety two when the court started using just plain u s mail put a stamp on it and you can send that since they've been using that method to deliver these important notices that that's why the saying you can go into the country but there's going to be some other process to follow she did not know what that process is and she says in her affidavit i mean of course it was wishful thinking but she was thought well i gave him my number i gave him my address i committed notice to the court of in a letter that case also where the dial of a motion to reopen was upheld by your or it again there that concerns a case where the person had moved and failed to give a notice of the new address and then the notice was actually sent out to the old address so i would argue here that looking at the facts of this case and the situation at the time the notice was mailed it was mailed to her correct address which she had provided it was an apartment unit it was in a large apartment complex with communal centrally located at mailboxes so there are many that's why too in our brief and even in her original  declaration i think she she speculates on what's of the many things that could have happened to it when there's a communal mailbox situation like that that it was missed delivered that it was put in the wrong mailbox jaan i've actually got some elements if someone came there and say as happens in apartment complexes someone got them noticed and it was not their notice if they set it on or whatever it would have been out exposed to the wind the rain also as it was on a busy street where there are many people walking by many strangers walking by so our point was that look on the part about these problems with mail delivery i soon after she moved problem she was supposed to be getting mail is not going to put even more of an onus on that i would say still she she did provide the correct address and also she had some thought that having provided the phone number that also she might get a phone call because when she was with the border patrol they actually called her sister and talked to her on the phone and so she also had like a second layer level of feeling that also i would note that the original in t a a in the documents  processing at the border it asked for the phone number and so also providing the address and the phone number it was like another way that perhaps she felt that she had given enough information and that it would be secure or that she would receive some type of notice by mail or by phone call about her case she says that the workings of the house don't go you can't benefit from that if you're the person and  what you're telling me with this argument is that the mail made it from the postal service to the actual mail box area but that someone picked it up or some third party are stealing it or whatever that  case would not seem to favor that argument is sure i am up for me with that recent case and i would say that this case is not the same in that they're you're talking about the household the inner workings of the household perhaps one person got it and didn't give it to another with them a house call here we're talking about a public mailbox that covers you know an apartment complex and she cannot be responsible for if the mail carrier did not get it into the correct box i would say that that i would distinguish that from actually take it out of the box or when i've seen it it's a bank of mailboxes as you see in large apartment complexes i know personally too probably the mail carrier comes in opens with a master key exposes all the boxes and puts the mail in the respective units closes it up what i was saying is that one of the speculation she had offers that if it was misdirected to another unit within that complex she lived in apartment six if it went to another sufficient evidence indicating that she rebutted the presumption of delivery for the regular mailing of the notice of hearing that the immigration court said to the address she provided i think you don't have in a similar failure of the inner workings of household cases like newness and calderon but to the extent that she makes a due process argument we're saying there is no jurisdiction because she didn't exhaust her due process argument before the agency and also even if she had of course as your honor mentioned there's no liberty interest in  because in that case summoners and whether she acted diligently and we were trying to do a fact intensive determination and they determined she wasn't diligent and we said that there was no jurisdiction to consider because of the fact determinations are reviewed for substantial evidence and whether mr landis received notice that the address she provided should be reviewed for substantial evidence based on my reading of the case so there  no evidence that that she were but at this presumption of delivery importantly in her declaration she admitted that she was living at the residence that she provided to the border patrol at the time that she was apprehended  the notice was not returned as undeliverable which is evidence of receipt this makes our case stronger than noon yes where the notice of overcome the presumption of the livery importantly and i disagree with opposing counsel on this i think the board carefully followed the factors and m r a the board precedent they looked for other evidence  besides the affidavit and there was nothing she admitted to being personally served with a notice to appear she admitted on the certificate of the m t a that she motion to reopen and it was only after she had married a u s citizen and believed that she had really available to her so actually another  factor is affidavits from other people she did not submit an affidavit from her sister who lived at the residence or any neighbors or the postal service or any evidence on how the mail is distributed at the condominium where she was living even if also as count as as your honor noted after she moved she didn't file it change of address form with the immigration court so this is after the order was sent to her and this is evidence that she intended to stay under the radar and avoid the immigration authorities finally there is case law in the circuit as you as you mentioned about the failings of the internal workings of the household we we filed the twenty eight on yes which is a case involving a petitioner and her mother who moved from a residence but there was an internal working your green meant that the landlord was supposed to forward her mail and this is the failure of the household there in that the landlord to not forward the mayo and in fact we turned it as undeliverable with the know that the petitioner doesn't live here so that's why we we believe that is an internal workings case  there's also the ok to calderon case which was a certified me case from twenty thirteen another published decision the certified mail was actually signed for by someone named the presumption of delivery and in fact of course there was actual delivery by certified mail in that case so those two published decisions we believe strongly support the government's position i will note i did find an unpublished decision which i believe is directly on point it's rodrigues reyes from twenty fourteen and in that case it's another household failure case and the presumption of delivery was not rebutted i did not today right that's correct your honor and you didn't give it to opposing counsel when you were sitting in the courtroom together or you know so that she would have ability to see it i'm sorry your honor and in the last line that was my fault ok well then i will allow twenty eight j in this case wants to you please provide a proper citation to opposing counsel and proposing counsel has something to say about the case may do so in a twenty eight j it's very important that we inform each other of the cases that were citing and talking about it a whirl argument of course our mind unless it's your apologist in that case the presumption of delivery by regular mail was not rebutted just says here the notice of hearing was not returned as undeliverable and the petitioner lived at the address and we are the justice here the petitioner had no incentive to attend your hearing and the petition that case waited more than twelve years after the search after being served with a notice to appear to inquire into her removed the proceedings and care the delay is eleven years in him about that of the notice about whether or not there was due diligence in the motion to reopen that there was an underlying dissin that the court said that there was not due diligence in the motion to reopen it was too late right sister circuits have also held that they don't have jurors do you have a comment on that closely followed in terms of the evidence submitted in addition to the affidavit and in fact there was none of the government notes the record of deportable in the two fifteen in the in the record says that at the time of her apprehension by the border patrol ms hernandez said that she was coming for economic reasons so that information of course would have been used to rebut any asylum application that she may have filed so i was just for the opposing counsel said that she intended to file an asylum application and she was questioned on it it's goes to incentive to appear it goes to her incentive to appear and we argued that she had no intent of to appear and as far as whether the household includes the public mailbox at the condominium it appears that you have these speculative arguments that were mentioned in briefing but not in petitioner's declaration there is no evidence of this besides attorney use her attorneys arguments it seems that two of the prospective scenarios on how the mail was mr reacted were attributed to the postal service or the mail carrier and then two of them were definitely household issues we believe whether another resident picked up the mail at the public mailboxes or whether someone in her own household had just like to know that i am concerned by opposing councils assertion that this is the failings of household type of case i'm sure we're all familiar with dealing with the us postal service things that you mail that never get libbers the person never received them things that are returned even though they were dressed address correctly and i see that there is this reliance on the us postal service here of just again it's not certified mail it's not any type of delivery confirmation requested to be mailed back to the court so just on putting that into the mailbox there's to me it's a leap to say that the person received it when you have this affidavit where the person says they did not receive it and again also that there were other incentives and reasons in indications of why this person would have had an interest in receiving it and i'm concerned about expanding this into the court's holding household itself that was one of the main things i see here that this those cases should not be expanded to cover a situation such as this where there's a large apartment  complex any details about the mailboxes or whatever that were not in the original affidavit of the client i will say from the beginning she said she lived in a calm a condo and also she provided the apartment number of the unit number which indicates that from the beginning it was understood it was not a single family dwelling that this was going into an apartment type situation