NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JATINDER SINGH, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 18-72588 

Agency No. A088-390-353 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted June 9, 2022

Seattle, Washington

Before: IKUTA and MILLER, Circuit Judges, and PREGERSON,** District 

Judge.

Dissent by Judge PREGERSON.

Jatinder Singh seeks review of an order of the Board of Immigration 

Appeals denying his second motion to reopen his removal proceedings. The order 

was dated August 10, 2018, but Singh did not file his petition for review until 42 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Dean D. Pregerson, United States District Judge for 

the Central District of California, sitting by designation.

FILED

AUG 30 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

days later, on September 21, 2018. Because his filing was untimely, we dismiss the 

petition for review for lack of jurisdiction. 8 U.S.C. § 1252(b)(1); Haroutunian v. 

INS, 87 F.3d 374, 375 (9th Cir. 1996).

The statutory time limit for filing a petition for review is mandatory and 

jurisdictional. Stone v. INS, 514 U.S. 386, 405 (1995). That time limit “begins to 

run when the BIA mails its decision.” Yepremyan v. Holder, 614 F.3d 1042, 1043 

(9th Cir. 2010) (per curiam); see also Martinez-Serrano v. INS, 94 F.3d 1256, 1259 

(9th Cir. 1996); Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007); 8 C.F.R. 

§ 1003.1(f). And the Board “enjoys a rebuttable ‘presumption of mailing’ when it 

issues a decision accompanied by a properly addressed and dated cover letter.” 

Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1078 (9th Cir. 2010). The Board 

issued such a decision in this case, so we apply a presumption that the decision was 

mailed on the date of the order, which was August 10.

Singh argues that his petition is timely because, he says, the Board did not 

comply with its notice obligations until he received actual notice of the decision on 

August 22. He does not dispute that the Board mailed its decision on August 10, 

but he asserts that it did not do so properly. As evidence for that assertion, he 

points out that his counsel did not receive the initial mailing, which was returned to 

the Board as undeliverable. But that fact is equally consistent with an error on the 

part of the Postal Service, not the Board. Such an error would not excuse a late 
3 

filing. See Chen v. United States Atty. Gen., 502 F.3d 73, 76–77 (2d Cir. 2007) (per 

curiam) (“Once the BIA has performed its duty of serving the order, the time for 

appeal and motions to reopen begins to run, even if the order miscarries in the mail 

or the alien does not receive it for some other reason that is not the BIA’s fault.”); 

accord Radkov v. Ashcroft, 375 F.3d 96, 99 (1st Cir. 2004).

Singh attempts to show that the blame lies with the Board by arguing that 

the letter must have been folded in such a way that his address was partially 

obscured or that the letter was mislabeled, but those arguments are based on 

speculation, not on any evidence in the record. Although the record contains a 

photocopy of a window envelope with an empty window, it does not indicate 

whether the copy was made before or after the envelope was opened and the letter 

removed. The record is insufficient to overcome the presumption that the Board 

fulfilled its notice obligations.

We have acknowledged that an affidavit of nonreceipt by an alien’s counsel 

might be sufficient to overcome the presumption of mailing, but we have never 

definitely resolved that question. Instead, we have held that the agency must 

consider such an affidavit when it is presented to the Board as part of a request that 

the Board reissue its decision to allow the filing of a timely petition for review.

Singh, 494 F.3d at 1172–73. In the context of such a request, the Board is able to 

consider “the weight and consequences of [a petitioner’s evidence] as compared to 
4 

its own records” to determine whether a petitioner received adequate notice of a 

decision. Hernandez-Velasquez, 611 F.3d at 1079. But our review is more 

circumscribed, and we lack the authority to undertake the kind of factual 

investigation that Singh asks us to conduct.

To toll the time limit for filing a petition for review, a petitioner must 

demonstrate that, through some fault of the agency, he did not receive notice of the 

decision. See Singh v. INS, 315 F.3d 1186, 1189 (9th Cir. 2003). The record here 

falls short of that standard, and we lack jurisdiction to create equitable exceptions 

to the statutory time limit. See Magtanong v. Gonzales, 494 F.3d 1190, 1191 (9th 

Cir. 2007) (per curiam).

PETITION DISMISSED.
1

Jatinder Singh v. Garland; No. 18-72588

Pregerson, District Judge, dissenting:

We have long recognized that a “petitioner should not be penalized for the 

BIA’s failure to comply with the terms of the federal regulations.” MartinezSerrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996). Although I agree that the 

Board may be entitled to a presumption of proper mailing, I respectfully disagree 

with the majority’s conclusion that Petitioner has failed to rebut that presumption.

As an initial matter, this case is not about actual notice, notwithstanding the 

majority’s use of the term. Rather, as the majority correctly observes, the question 

is whether and when the BIA satisfied its obligation to serve its decision upon 

Petitioner. Because the record before us includes a properly addressed and dated 

cover letter, the Board is entitled to a presumption that its decision was properly 

mailed on the date of that cover letter. Hernandez-Velasquez v. Holder, 611 F.3d 

1073, 1078 (9th Cir. 2010). That presumption, however, is not irrefutable. Rather, 

a petitioner can rebut the presumption of proper mailing. Id. As discussed further 

below, the evidentiary standard a Petitioner must meet to do so is relatively 

modest. Indeed, we have suggested that affidavits of non-receipt alone may suffice 

to rebut the presumption of proper mailing. Id.; see also Dalip Singh v. Gonzales, 

494 F.3d 1170, 1172-73 (9th Cir. 2007). 

Here, however, the record is more robust. There is no dispute that Petitioner 

never received the Board’s initial mailing, or that that mailing was returned to the 

FILED

AUG 30 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

agency by the United States Postal Service as undeliverable. The very same cover 

letter that entitles the government to a presumption of proper mailing bears indicia 

of having been folded into thirds, so as to fit inside a standard envelope. The 

record also includes an image of the envelope that was returned to the agency. 

That envelope includes a transparent window, through which, had the cover letter 

been properly folded and inserted, counsel’s correct address would have been 

visible. Nevertheless, the envelope bears a sticker stating “Return to Sender,” 

“Attempted - Not Known,” and “Unable to Forward.” No address whatsoever is 

visible through the envelope’s transparent window, or anywhere else on the 

envelope. 

The government pleads ignorance as to how the envelope, which was 

returned to the agency, came to be part of the record before us, notwithstanding 

that the government itself filed the administrative record with this Court, certified 

the authenticity of its contents, and reproduced an image of the envelope within its 

answering brief. Nowhere in that brief does the government make any suggestion 

that the envelope has been tampered with, or that the copy in the record is in any 

way unreliable. At argument, however, the government suggested for the first 

time, among other postulations, that “maybe the envelope was altered before it was 

put in the record,” and essentially urged us to ignore the envelope in the absence of 
3 

a chain of custody.1 Although the majority appears to decline this invitation and

does, as it must, address the evidence presented, the majority concludes that the 

returned envelope is equally suggestive of error on the part of the Postal Service as 

on the part of the Board. I cannot agree. Put simply, how could the Postal Service 

be at fault for failing to deliver an envelope with no address on it? It is the 

majority and the government, not Petitioner, who speculate as to why the evidence 

appears the way it does in the record. But no matter what theoretical failing the 

majority may ascribe to the Postal Service, or hypothetical history the majority 

may construct to explain the state of the record before us, the indisputable fact 

remains that the envelope bears no mailing address. If such evidence is 

insufficient to rebut the presumption of proper mailing, it is difficult to see how 

any petitioner could ever do so, absent some mea culpa from the Board itself. 

My view of the nature and effect of the presumption of mailing appears to 

differ from that of the majority. “The most widely followed theory of 

presumptions in American law . . . has become known as the . . . ‘bursting bubble’ 

theory[.]” 2 McCormick On Evid. § 344 (8th ed.). “Under the . . . ‘bursting 

1 In most instances, there is no evidentiary distinction between an original and a 

photocopied duplicate, absent some “genuine question” as to the authenticity of the 

latter. See Fed. R. Evid. 1003. In the immigration context, evidentiary standards 

are generally even more permissive. See, e.g., Sanchez v. Holder, 704 F.3d 1107, 

1109 (9th Cir. 2012). The government concedes that it does not know whether 

there is any defect with the copy of the envelope, and its baseless suppositions 

cannot serve to exclude evidence from our consideration. 
4

bubble’ approach to presumptions, a presumption disappears where rebuttal 

evidence is presented.” Nunley v. City of Los Angeles, 52 F.3d 792, 796 (9th Cir. 

1995). Thus, in the context of questions of receipt of district court orders, this 

Court has recognized that a presumption of receipt is “rebutted upon a specific 

factual denial of receipt.” Id.; see also In re Yoder Co., 758 F.2d 1114, 1119 (6th 

Cir. 1985) (“[A] presumption vanishes entirely once rebutted, and the question 

must be decided as any ordinary question of fact.”); ITC Ltd. v. Punchgini, Inc., 

482 F.3d 135, 149 (2d Cir. 2007) (“Courts and commentators are in general 

agreement that proffered evidence is sufficient to rebut a presumption as long as 

the evidence could support a reasonable [] finding of the nonexistence of the 

presumed fact.”) (internal quotation marks omitted).

To be sure, some presumptions are stronger than others. This Court has 

recognized, for example, that in certain bankruptcy proceedings, a presumption of 

mailing “can only be overcome by clear and convincing evidence that the mailing 

was not, in fact, accomplished.” In re Bucknum, 951 F.2d 204, 207 (9th Cir. 1991)

(per curiam). And in the immigration context, with respect to service of a Notice 

to Appear, we have afforded a “strong presumption” of delivery when notice is 

sent by certified mail. Salta v. I.N.S., 314 F.3d 1076, 1079 (9th Cir. 2002); see 

also Sembiring v. Gonzales, 499 F.3d 981, 983 (9th Cir. 2007) (applying “lesser 

presumption of effective service applicable to regular mail”). Accordingly, we 
5 

have required “fairly strong evidence to rebut such a presumption.” Salta, 314 

F.3d at 1079. 

I am not aware, however, of any instance in which we have applied a 

“strong,” or otherwise heightened, presumption of mailing in a case involving a 

motion to reopen. Although this Court did indeed recognize a presumption of 

mailing in Haroutunian v. I.N.S., 87 F.3d 374 (9th Cir. 1996), nothing in that 

decision can be read to suggest that the presumption is an abnormally robust one. 

To the contrary, in Haroutunian we cited to Karimian–Kaklaki v. I.N.S., 997 F.2d 

108, 111 (5th Cir.1993), another case in which the petitioner cited no evidence of 

improper mailing, for the proposition that “absent evidence to the contrary, [the] 

date on BIA’s transmittal letter is [the] date mailed.” Haroutunian, 87 F.3d at 375 

(emphasis added). Although this language alone is suggestive of a standard, 

“bubble”-type presumption, we need not resort to reading between Haroutunian’s 

lines. In Dalip Singh, as here, we considered the presumption of mailing as it 

related to the agency’s statutory duty under 8 C.F.R. § 1003.1(f). Dalip Singh, 494 

F.3d at 1172. In so doing, we specifically quoted Nunley and its recognition that 

under the “‘bursting bubble’ approach to presumptions, a presumption disappears 

where rebuttal evidence is presented.” Id. at 1173. 

Here, however, the majority holds Petitioner to a higher standard. Although 

the undeliverable, address-less envelope unquestionably constitutes rebuttal 
6

evidence that could support the nonexistence of the presumed fact of proper 

mailing, the majority nevertheless faults Petitioner for presenting evidence that is 

merely “equally consistent” with the existence of the presumed fact. In so doing, 

the majority imposes, at minimum, a preponderance standard on Petitioner that is 

not supported by any statute, regulation, or prior decision of this Court. Maj. at 3. 

The majority also, having weighed Petitioner’s evidence and found it 

wanting, further asserts without citation that “we lack the authority to undertake 

the kind of factual investigation that Singh asks us to conduct.” Maj. at 4. This 

statement appears inconsistent with the majority’s prior evidentiary analysis, and 

with the majority’s recognition that the time limit for filing a petition for review is 

tolled where a petitioner can “demonstrate that, through some fault of the agency, 

he did not receive notice of the decision.” Maj. at 4 (citing Ram Singh v. INS, 315 

F.3d 1188 (9th Cir. 2003)). A petitioner cannot, however, possibly demonstrate 

any fact to a court that disclaims the authority to consider factual questions. This 

Court has examined, and should continue to examine, the evidence when the 

court’s jurisdiction is at issue. See, e.g., Haroutunian, 87 F.3d at 375 (analyzing 

evidence, such as date stamp, to determine when BIA order was mailed). 

I respectfully dissent.