The Board of Immigration Appeals has issued a decision in Matter of F-B-G-M- & J-E-M-G-, 29 I&N Dec. 52 (BIA 2025).
(1) Electronic notification of a briefing schedule sent to the email address of record is sufficient notice in a case eligible for electronic filing, regardless of whether an alien’s attorney or accredited representative opens the email or accesses the document via the Executive Office for Immigration Review’s Courts and Appeals (“ECAS”) Case Portal.
(2) A rebuttable presumption of delivery applies when a party has been sent electronic notification of a briefing schedule through the procedures provided for in the ECAS regulations, but this presumption is weaker than the presumption that applies to documents sent by certified mail because electronic service through ECAS does not involve the use of a signed receipt or other affirmative evidence of delivery.
Cite as 29 I&N Dec. 52 (BIA 2025) Interim Decision #4093
Matter of F-B-G-M- & J-E-M-G-, Respondents
Decided by Board March 19, 2025
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
- On that date, electronic filing through ECAS became mandatory for
attorneys and accredited representatives appearing before the Board in all
cases eligible for electronic filing.4
See 8 C.F.R. §§ 1003.2(g)(4),
1003.3(g)(1), 1003.31(a) (2025). To electronically file through ECAS, users
must register with EOIR through eRegistry,5 log in to the ECAS Case Portal
system, and accept the Terms and Conditions for electronic filing. ECAS
User Manual, Exec. Off. for Immigr. Rev. 1 (Sept. 25, 2022),
https://www.justice.gov/eoir/page/file/1300086/dl. Under the ECAS Terms
and Conditions, users agree to maintain a valid email address in ECAS and
to “[a]ccept service of process of EOIR-generated documents electronically
through the email address provided in ECAS.” See Terms and Conditions
for Using ECAS Case Portal, Exec. Off. for Immigr. Rev. 1 (July 29, 2022),
https://www.justice.gov/eoir/page/file/1370246/dl.
4
“The term case eligible for electronic filing means any case that DHS seeks to bring
before an immigration court after EOIR has formally established an electronic filing system
for that court or any case before an immigration court or the Board . . . that has an electronic
record of proceeding.” 8 C.F.R. § 1001.1(cc) (2025). The present case has an electronic
record of proceeding.
5 This is a mandatory electronic registry for all attorneys and accredited representatives
who practice before Immigration Judges or the Board. See 8 C.F.R. § 1292.1(f) (2025);
see also Registry for Attorneys and Representatives, 78 Fed. Reg. 19400 (Apr. 1, 2013) (to
be codified at 8 C.F.R. pt. 1292).
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Unlike service by traditional mail, where legal representatives receive
documents delivered at their office, ECAS users receive an electronic
notification via email when a document has been added to the electronic
record of proceeding. The subject line of the email contains the respondent’s
last name and the last 3 digits of the alien number. The body of the email
advises the recipient of the type of notice that was sent, the full name and
alien number, and other information pertaining to the case. The document
can then be accessed through the ECAS Case Portal. EOIR will consider
service of a document completed when the electronic notification is delivered
to the last email address on file provided by the user. See 8 C.F.R.
§§ 1003.2(g)(9)(ii), 1003.3(g)(6)(ii), 1003.32(b).
We conclude that a briefing schedule served electronically through the
process described above provides the parties with sufficient notice. See
Matter of Arciniegas-Patino, 28 I&N Dec. 883, 885 (BIA 2025) (concluding
that a respondent who received an electronic notification of a briefing
schedule available in the electronic record of proceeding was properly served
with the briefing schedule). As the respondents argue, notice and an
opportunity to be heard are fundamental requirements of due process. See,
e.g., Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).
Due process requires that the information be provided in a manner
“reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action” and afford them an opportunity to
present their objections.” Id.
We observe that similar methods of electronic service are in use by other
court systems and have not been found to violate due process. See, e.g.,
Fed. R. Civ. P. 5(b)(2)(E) (providing for service “by filing [a document] with
the court’s electronic-filing system or sending it by other electronic means
that the person consented to in writing”); Fed. R. App. P. 25(c)(2), (4); see
also Rio Props., Inc., v. Rio Int’l Interlink, 284 F.3d 1007, 1017–18 (9th Cir.
2002) (upholding the use of email as an alternative means of service and
noting that “the Constitution does not require any particular means of service
of process, only that the method selected be reasonably calculated to provide
notice and an opportunity to respond.”).
When the Board issues a briefing schedule in a case eligible for electronic
filing, the electronic notification sent to the email address provided by an
alien’s attorney or accredited representative is reasonably calculated to
apprise them that the briefing schedule has been added to the ECAS Case
Portal and provide them an opportunity to present their appellate arguments
to the Board. We are not persuaded by the respondents’ argument that such
electronic notifications do not provide sufficient notice because they do not
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contain the briefing deadline in the subject line or body of the email message
or because the notifications for EOIR-generated documents are not
distinguishable from the notifications received when filings are made in
ECAS by the opposing party.
When a party is served with a briefing schedule through the mail, the
outside of the envelope does not identify the document or provide details,
such as the filing deadline. The recipient must open the envelope to view the
document. Similarly, practitioners who receive service through an electronic
notification must log in to the ECAS Case Portal to view the briefing
schedule. The respondents’ arguments do not persuade us that this process
is so cumbersome as to render notice of the briefing schedule ineffective.
The electronic notification sent to the parties informs them it is from
EOIR, and the subject line includes the alien’s last name and the last three
digits of their alien number. As noted previously, the nature of the document
that was added to the ECAS Case Portal and other information pertinent to
the case is in the body of the email. It is the responsibility of any attorney or
accredited representative appearing before the Board to review all documents
served through ECAS, regardless of whether the documents are
EOIR-generated or filed by the opposing party. See 8 C.F.R
§ 1003.38(g)(1)(ii) (stating that a practitioner who enters an appearance on
behalf of a respondent in proceedings before the Board must accept service
of process of all documents filed in the proceedings).
We further conclude that electronic notification of a briefing schedule
sent to the email address of record is sufficient notice in a case eligible for
electronic filing, regardless of whether an alien’s attorney or accredited
representative opens the email or accesses the document via the ECAS Case
Portal. See Matter of Arciniegas-Patino, 28 I&N Dec. at 885–86 (concluding
that a respondent was properly served with a briefing schedule even though
the electronic notification of the document was delivered to his counsel’s
spam folder); see also Matter of G-Y-R-, 23 I&N Dec. 181, 186–87
(BIA 2001) (recognizing that constructive notice may be sufficient in
circumstances where it comports with the requirements of applicable statutes
and the expectations of due process).
Given the recent implementation of ECAS, the Board has not yet
addressed the burden of proof or evidentiary standards that apply when a
party challenges the sufficiency of electronic service through the
ECAS Case Portal. Both the INA and relevant regulations are silent on
this matter. Courts addressing similar circumstances have found a
presumption of delivery applies to electronically served documents.
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See, e.g., Am. Boat Co., Inc. v. Unknown Sunken Barge, 418 F.3d 910, 914
(8th Cir. 2005) (holding that a rebuttable presumption of delivery should
apply to emails sent by a district court’s case management and electronic case
filing system).
While not directly applicable to the present circumstances, the Board has
previously addressed the presumption of delivery that applies when
documents are served by mail. In Matter of Grijalva, 21 I&N Dec. 27, 37
(BIA 1995), we held that when service of a notice of a deportation proceeding
is sent by certified mail through the United States Postal Service and there is
proof of attempted delivery and notification of certified mail, a strong
presumption of effective service arises. Rebutting this presumption requires
“substantial and probative evidence such as documentary evidence from the
Postal Service, third party affidavits, or other similar evidence demonstrating
that there was improper delivery or that nondelivery was not due to the
respondent’s failure to provide an address where he could receive mail.” Id.
In Matter of M-R-A-, 24 I&N Dec. 665, 673 (BIA 2008), we held that
there is also a presumption of delivery when a notice to appear or notice of
hearing is properly addressed and sent by regular mail according to normal
office procedures, but it is weaker than the presumption that applies to
documents sent by certified mail. All relevant evidence submitted to
overcome this weaker presumption of delivery must be considered. Id. at
673–74. Immigration Judges may consider a number of factors, including
but not limited to factors such as affidavits from the respondent and others
who are knowledgeable about whether notice was received, whether due
diligence was exercised in seeking to redress the situation, any prior
applications for relief that would indicate an incentive to appear, and the
respondent’s prior appearance at immigration proceedings, if applicable. Id.
at 674.
As with documents served through the mail, a rebuttable presumption of
delivery applies when a party has been sent electronic notification of a
briefing schedule through the procedures provided for in the ECAS
regulations, but this presumption is weaker than the presumption that applies
to documents sent by certified mail because electronic service through ECAS
does not involve the use of a signed receipt or other affirmative evidence of
delivery.
We conclude that all relevant facts and evidence should be considered in
determining whether a party has rebutted this presumption. Cf. id.
(explaining that an “inflexible and rigid application of the presumption of
delivery” is not appropriate for documents served by regular mail). Factors
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may include, but are not limited to: (1) whether the briefing schedule was
uploaded to ECAS and an email notification was sent to the last email address
provided; (2) whether the claim of nonreceipt is supported by affidavits or
declarations made under penalty of perjury; (3) whether such affidavits or
declarations are based on personal knowledge of the relevant facts; (4)
whether the attorney or accredited representative has complied with the
procedures for updating his or her email address; (5) whether the opposing
party received the email notification; and (6) any other circumstances
indicating possible nonreceipt. Ultimately each case must be evaluated based
on its own particular circumstances and evidence. Relevant evidence may
include affidavits, screenshots, and other records from the practitioner’s firm
or office pertaining to work on the case. We caution, however, that in most
cases a bare denial of receipt will not be sufficient to rebut the presumption
of delivery.
We have fully considered the respondents’ claims set forth in their
motion, including their claim that their counsel’s office was experiencing
difficulty with mail delivery starting in June 2023. In the present case,
administrative records reflect that the briefing schedule was properly served
on the respondents on June 27, 2023, through an electronic notification sent
to the email address provided by their counsel. The sole evidence submitted
with the respondents’ motion is an affirmation from counsel. Counsel states
that she was unable to locate that electronic notification after a thorough
search of her email, but she does not dispute that it was sent or received. The
evidence submitted by counsel, without more, is insufficient to rebut the
presumption that the electronic notification was delivered to counsel’s email
inbox.
We are unpersuaded by the respondents’ claim that they did not receive
proper notice of the briefing schedule because the Board did not issue a
public statement or otherwise provide notice that it would no longer send
briefing schedules through the mail. As previously discussed, this change in
process was announced on December 13, 2021, and has been in effect since
February 11, 2022. 86 Fed. Reg. at 70708. The respondents assert that the
Board has at times continued to send briefing schedules through the mail
beyond February 11, 2022.6
However, any actions taken by the Board as a
courtesy in other cases would not create a reasonable expectation that the
6 In a written affirmation submitted with the motion, the respondents’ counsel states that
it had been the Board’s customary practice to serve briefing schedules by mail even after
full implementation of ECAS on February 11, 2022. However, counsel does not identify
any specific cases in which this practice occurred and does not allege that the Board failed
to serve the briefing schedules electronically in any of those cases.
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briefing schedule in the present case would be served by mail or relieve
counsel of her obligation to actively monitor her email inbox.7
See 86 Fed.
Reg. at 70710 (“In general, representatives should vigilantly monitor their
email inboxes, including any spam folders, for service notifications from
EOIR, just as a person would for any important email communication.”).
Similarly, that the Board continues to send courtesy copies of its final
decisions to respondents themselves through the mail has no bearing on the
propriety of using electronic service for briefing schedules in cases where it
is appropriate.
For the reasons discussed above, the respondents have not identified
errors of fact or law in the Board’s December 18, 2023, decision summarily
dismissing their appeal. The electronic notification sent to the respondents’
counsel provided sufficient notice to the respondents that their brief was due
on or before July 18, 2023. Because no written brief or statement was
received by the filing deadline—and because the Notice of Appeal did not
contain statements that meaningfully apprise the Board of the specific
reasons for the appeal—summary dismissal of the appeal was appropriate.
See 8 C.F.R. §1003.1(d)(2)(i)(A), (E).
Finally, the respondents have not shown that their untimely filed appellate
brief should be accepted under the principles of equitable tolling. Equitable
tolling is not intended as a general remedy for untimely filings and requires
a party to demonstrate both diligence and an extraordinary circumstance that
prevented timely filing. See Holland v. Florida, 560 U.S. 631, 649 (2010);
see also Matter of Morales-Morales, 28 I&N Dec. 714, 717 (BIA 2023)
(applying the equitable tolling framework set forth in Holland in the context
of an untimely appeal). We are unpersuaded by the respondents’ argument
that the novelty of ECAS and the fact that their counsel was moving office
locations constitute extraordinary circumstances that prevented timely filing
of their brief. The respondents have not shown that their counsel’s office
move prevented counsel from checking email or from timely filing the brief.
Moreover, while we acknowledge that ECAS is a new system and represents
a departure from prior practices, a party’s lack of familiarity with the ECAS
notification procedures does not constitute an extraordinary circumstance
warranting equitable tolling of the filing deadline.
7 We note that the respondents were represented by current counsel before the
Immigration Judge. The record reflects that the respondents, through counsel, received
electronic service of multiple documents during the proceedings below.
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For the foregoing reasons, the respondents’ motion to reconsider will be
denied.
ORDER: The respondents’ motion to reconsider is denied.
FURTHER ORDER: The respondents’ request to accept their
untimely brief is denied.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $998 for each day the respondent is in violation. See INA
§ 274D, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2025).
(1) Electronic notification of a briefing schedule sent to the email address of record is
sufficient notice in a case eligible for electronic filing, regardless of whether an alien’s
attorney or accredited representative opens the email or accesses the document via the
Executive Office for Immigration Review’s Courts and Appeals (“ECAS”) Case Portal.
(2) A rebuttable presumption of delivery applies when a party has been sent electronic
notification of a briefing schedule through the procedures provided for in the ECAS
regulations, but this presumption is weaker than the presumption that applies to
documents sent by certified mail because electronic service through ECAS does not
involve the use of a signed receipt or other affirmative evidence of delivery.
FOR THE RESPONDENT: Patricia Garcia Pantaleon, Esquire, Long Island City, New
York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kyle T. Simpson, Associate
Legal Advisor
BEFORE: Board Panel: MANN, LIEBOWITZ, and BORKOWSKI, Appellate
Immigration Judges.
MANN, Appellate Immigration Judge:
This matter was last before the Board on December 18, 2023, when we
summarily dismissed the respondents’ appeal from the Immigration Judge’s
decision.2
The respondents, natives and citizens of Guatemala, have filed a
timely motion to reconsider the Board’s decision. The Department of
Homeland Security (“DHS”) has filed a brief opposing the motion. The
motion to reconsider will be denied.
These proceedings were initiated on September 10, 2021, upon the filing
of the notices to appear with the Immigration Court. The respondents filed
1 Pursuant to Order No. 6262-2025, dated May 12, 2025, the Attorney General designated
the Board’s decision in Matter of F-B-G-M- (BIA Mar. 19, 2025), as precedent in all
proceedings involving the same issue or issues. See 8 C.F.R. § 1003.1(g)(3) (2025).
Editorial changes have been made consistent with the designation of the case as a
precedent.
2 The respondents in this case include the lead respondent and her minor child.
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applications for asylum and withholding of removal under sections
208(b)(1)(A) and 241(b)(3)(A) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A) (2018), and protection
under the regulations implementing the Convention Against Torture,3 which
the Immigration Judge denied on June 9, 2022. The respondents filed a
timely appeal from that decision.
In their Form EOIR-26, Notice of Appeal, the respondents indicated that
they intended to file a separate written brief or statement in support of their
appeal. On June 27, 2023, the Board issued a briefing schedule granting the
respondents until July 18, 2023, to file a brief. No written brief or statement
was received by the filing deadline. On December 18, 2023, the Board
summarily dismissed the respondents’ appeal pursuant to paragraphs (A) and
(E) of 8 C.F.R. § 1003.1(d)(2)(i) (2025), because the Notice of Appeal did
not contain statements that meaningfully apprised the Board of the specific
reasons underlying the challenge to the Immigration Judge’s decision, and
because the respondents did not file a separate written brief or statement or
explain their failure to do so.
On December 27, 2023, the respondents filed a motion to reconsider our
December 18, 2023, decision summarily dismissing their appeal. On
March 29, 2024, DHS filed a brief in opposition to the respondents’ motion
to reconsider.
A motion to reconsider “shall specify the errors of law or fact in the
previous order and shall be supported by pertinent authority.” INA
§ 240(c)(6)(C), 8 U.S.C. § 1229a(c)(6)(C) (2018); accord 8 C.F.R.
§ 1003.2(b)(1) (2025). “The moving party must specify the factual and legal
issues raised on appeal that were decided in error or overlooked in our initial
decision or must show how a change in law materially affects our prior
decision.” Matter of O-S-G-, 24 I&N Dec. 56, 58 (BIA 2006).
In their motion, the respondents argue that the Board erred in summarily
dismissing their appeal because they did not receive sufficient notice of the
briefing schedule. They assert that neither they nor their counsel received
the briefing schedule by mail and that their counsel did not receive the
briefing schedule either directly through email or electronically by an email
notification indicating that a briefing schedule was available in the Executive
Office for Immigration Review (“EOIR”) electronic case management
3 The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into
force for the United States Nov. 20, 1994).
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system, also known as the EOIR Courts and Appeals (“ECAS”) Case Portal.
They argue that notifications sent through ECAS do not provide sufficient
notice because they do not clearly indicate that they relate to a briefing
schedule and do not provide the filing deadline in either the subject line or
the body of the email. They further argue that the Board failed to issue a
public statement or otherwise provide adequate notice that it would no longer
send briefing schedules by mail and would be using ECAS exclusively.
In its brief opposing the respondents’ motion, DHS argues that the notice
provided through ECAS is sufficient and that the respondents have not
demonstrated that they did not properly receive the briefing schedule.
On December 13, 2021, EOIR published a final rule implementing the
use of electronic filing and records applications, known as ECAS, for all
cases before the Immigration Court and the Board. See Executive Office for
Immigration Review Electronic Case Access and Filing, 86 Fed. Reg. 70708
(Dec. 13, 2021) (to be codified at 8 C.F.R. pts. 1001, 1003, 1103, 1208, 1240,
1245, 1246, 1292). The rule went into effect on February 11, 2022. Id. at