consequences of failing to appear before court and that he can be ordered deported and the statute at eight u s c twelve twenty nine a one f lays this out clearly this is what we call a twelve twenty nine a one f address i clear convincing and unequivocal evidence does not establish that proper notice was provided then and in absentia order is unlawful what's the what is the standard of review or what's the burden in this context when you're seeking to reopen it normally the statute well but the notice as i understand it was sent to the address that was on the asylum application that is correct your honor so what was the government application and then it came back in that case right so this typically happens it happens frequently in immigration court and if a judge determines that there is not proper notice which the judge should have here because the certified mail receipt for there the name of the person who's the recipient it's playing right you know but it didn't come back the receipt came back there was he came back but the recipient is blank and then my signature is illegible and so an immigration judge should have looked at that and said well i don't see that there's clear convincing and unequivocal evidence that they they do is move to recalibrate the case and that's done in practice this issue of the notary happens all the time as you know especially in california time you know it was raised to the court in the end do you a case it wasn't ultimately decided but no court has ever held that service course the lawyer has to submit a special form called a form g twenty eight that we present our appearance legally we're required to do that and of course that was never done so this is let me ask you this the i i get your and i understand your point about the indie aspect of this but moving back to the reopening concept we're supposed to credit what your client has presently submitted in terms of what happened he says it never intended to file an application for asylum never anything to do with it why would anybody send one in if you didn't contact him it's inherently unbelievable isn't it no paid for it somebody came and asked him to do it he doesn't just say you know i think i'm going to send an application for mr froggatt oh well i don't know right so why would he do that because he's getting the mr franco who hired him to file a work permit he doesn't know ok so yeah hired him ok and you're say he thought it was for a work permit correct right and so this is a common practice among notaries it's detailed in the lopez case and it's happened still today and so people think there kyra somebody for a work permit the asylum application gets filed they don't know about it they're sent to the asylum interview he doesn't know about it and then it goes automatically to the immigration court and people get ordered deported because a let's let's take that is all being true is that we supposed to do it reopening situation what are we supposed to do with the concept that it was supposedly a work permit at least there's an address right well you're saying that if the work permit would go to the department of labor sure it's a different issue is that  we're saying you know what the work permit goes to immigration right right so i think your point is the address that he provided for us so provided right so the the notary provided the address because he signed the application that was flink and so the issue is the issue really is i service here on the notary sufficient for the m t a and i think there's two issues one is that the certified mail receipt is illegible on the signature and there's no name and so in order to show that meet that high burden we have to have an identity of the person who signed for the your name is there's a place on the floor well i mean this pos is supposed to do that by certified mail and that wasn't done here but this exact sort of situation happened in the seven circuit case i am now where the signature was illegible and the court in the seven circuit said that that was again not enough to meet this high burden of proof because we don't know who signed for the document so i think there's two issues one is the illegible signature and the lack of identity but the other issue i think is is service on the notary ever enough for service the notice to appear under the statute and i'd like to direct the court to a decision in her mandate is which is five twenty four fed third ten fourteen there's a real discussion about notaries and how they're different than attorneys and in fact the harm that notary scott is to communities and i think that's a really important thing here because we know how much fraud happened in this specially in california i'm trying to understand this from the standpoint of the agency  they send it to the person to the address that's on the application it comes with the signature that can't be read and they're supposed to say this was not properly served because they couldn't read the signature yes because it was because not because it was sent to the wrong address and not because it never got there that have the option i notice the certified mail you can restrict the address to be have a restricted delivery which as i understand it that requires the address see to sign for  you're well i did look this up the post office has a special form where you can designate an agent of who can receive proper service it's the form three eight zero one and so if if for instance i wanted a nother person to be able to receive service legally i could just fill out this form and then it would be sufficient for purposes of certified mail but obviously that wasn't done and that's typically not done in the case of a notary but that's something they could do to give a special surance or additional surance of actual delivery by restricting absolutely so if if if the individual can be served through another person that's not him then this form can be filled out but that obviously was not the case here that would risk that would limit who could sign that absolutely anything like the receipt right and so you can put your family members good morning good morning honors may please the court michael hyson behalf of the respondent the attorney general united states agency properly exercise its question here to deny this motion to reopen the question before the court is why i believe this is asking the court to accept that he did not receive a notice to appear that was mailed by certified mail to him twenty years ago it was mailed to an office address there's that that's undisputed it was not mail address that titian are provided and that's the key to this case he has motion to reopen five before the immigration judge he claimed in that motion that how concerned with the actual i know there's actual and constructive notice but aren't we concerned what's the evidence of actual notice here given the fact that be his signature on the receipt and it's delivered to an office address it's not where he lives when you take a step back from that point the statute only requires the government to or service years before he filed in an asylum application which of course is very different i'm from my question to you is the statute that you cited relevant with respect to the address provided in connection with the asylum application absolutely address is there you can use that is that what you're saying it's whatever address the alien provides and that's and that's actually an apt question here because what would stop an alien from providing a false address to then get away with this for twenty years to be able to in connection with an m t a it's a question of which comes first all really what is what order was right but what judge shorter is asking is what is the agency supposed to do what what what where are they supposed to send us well one thing you're supposed to  statute is written that's something for congress to address or for this court to suggest the congress needs to impose an agency hierarchy in terms of the pay obtaining this kind of notice but what's required is under a u s c twelve twenty nine c is service by mail not certified mail that's evidence that he can submit he can discuss that evidence when attempting to rebut this presumption of service and he's done that he's attempted to rebut this presumption what he runs into is the fact that he waited sixteen years to do anything about it he had he had constructive or actual notice of something being wrong with his case at worst in one thousand nine hundred eight when he was physically removed from the united states you agree that in a motion to reopen that we must credit the statement of the petitioner unless it's inherently unbelievable you agree that's what the case law requires yes he's entitled to in this case we're supposed to credit what he said he said hey i never did this i never sent this in this is not my lawyer not my address so we credit that unless it's inherently unbelievable if it's inherently unbelievable what's the what's the standard of that and if in if we determined that his story is inherently unbelievable what do we do with this case if the court determines that his story is inherently unbelievable it denies the petition for a view and that's entirely my nuptial point was why should this court believe this petition or because he he provided this address he's claiming now  else is an agency supposed to do here what more are they supposed to do the statute doesn't require personally walking up to the individual and saying are you this person yes i am here's the notice to appear or you need to appear in the state that's not what the statute requires fact that the it's tough for the ira i mean is to do something more that that's a different question the question is what's inherently unbelievable such that we would not credit his testimony as we would normally be required to do the immigration judge discussed all of these factors first he provided false documents you know time to enter the united states made a false claim to citizenship provided a false name illegally entered the country three times and as specifically critical here there's anybody that legally interesting and they submit an affidavit is there after inherently unbelievable i mean that may go to his credibility and that may be considered when you know if you when every gets the merits of why is that make this inherently unbelievably means within the four corners i would think or something about this just because he's violated the law in the past what makes us inherently under unbelievable whether or not so credit his statement is a question of fact for the immigration judge and what they mean gratian judge is faced with here is considering all the the m r i factors that are listed out one of which includes any prior applications individual is there a difference between a judgment made by an immigration judge after an evidentiary hearing and listening to the petitioner as opposed to one which is simply an affidavit seeking to be open which is the initial stages to get t reopen he stated that the signature on the asylum application was forged and now he's conceding that he actually did sign it that's a pretty momentous shift he provided the address and that's critical to the statute as well it's as address provided by the alien last known address quote provided by the alien an application that he signed with an address on it even if it's wrong he provided that address and as your honor asked what more is the agency's supposed to do in that regard is that does  agency and this court to accept that he received did not receive a notice to appear that was mailed to an address he provided sent by certified mail not regular mail regular mail is permissible under the said his he acknowledge that he case the question then becomes ok you know something went wrong and that's where diligence comes in in one thousand nine hundred eight he was ordered removed was physically removed in one thousand nine hundred eight came back and legally does nothing for at at best five years consults quite a paralegal after having talked to lawyers about his case or maybe a notarial somebody he does nothing about his case for five years they don't help him he waits another nine years after that until two thousand and twelve but doesn't follow the most reopen until two thousand and fourteen matter of m r e discusses how ok you have an opportunity to rebut this presumption of notice and one of the factors to be considered as to whether or not you provided that notice is whether or not you acted diligently upon learning that there is a problem in square with the statute and you can certainly file something at any time but whether or not you for a body the presumption of notice which in this case the immigration judge did him a favor in essence by discussing regular mail presumption which is a lower presumption despite the ok just very briefly i think that the respondent fails to look properly a matter of which is twenty one i am in decision twenty seven hava makes the distinction between the charging document there the order to show cause which is the predecessor to the  and the hearing notice different rules apply as the court has acknowledged i also want to further address the notice that and i understand that you're saying that the notice requirement for the what is now the n th that's different than it would have been in case the course decision in and he discusses this issue if there is no notice a motion to reopen can be filed at any time and there is no due diligence requirement and we've submitted a twenty eight j letter that does show that andrea has been multiplied by the