Nguhlefeh Njilefac v. Garland, No. 20-60520, 5th Circuit (Mar. 24, 2021)

Nguhlefeh Njilefac v. Garland is an interesting case if you ever do any work with unsworn declarations.

An important question in that case was whether Nguhlefeh Njilefac’s counsel received certain documents in the mail. The Fifth Circuit recognizes a presumption of receipt when documents are properly mailed. Nunes v. Sessions, 882 F.3d 499, 506 (5th Cir. 2018). Here, Nguhlefeh Njilefac tried to overcome the presumption with two declarations. The first declaration was from his counsel, who declared that he had never received the briefing schedule. The second declaration was from his counsel’s officemate, who declared “to my knowledge,” neither he nor his staff had seen the briefing schedule. The Fifth Circuit agreed with the BIA that the declarations did not overcome the presumption.

First, mere denial of receipt “is typically insufficient to cast doubt on a delivery.” Slip Op. at 5 (citing In re Eagle Bus Mfg., Inc., 62 F.3d 730, 735 (5th Cir. 1995); Mauricio-Benitez v. Sessions, 908 F.3d 144, 150 (5th Cir. 2018); Nunes v. Sessions, 882 F.3d 499, 507 (5th Cir. 2018).

Second, while both declarations contained “under penalty of perjury” language, neither declaration contained language indicating “that the foregoing is true and correct.” See 28 U.S.C. § 1746 (setting forth the formal requirements for an acceptable unsworn declaration). That defect alone may or may not eliminate the evidentiary value of the declaration. Slip Op. at 5 n.4 (comparing Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988) (concluding that a declaration that did not include either phrase did not comply with § 1746 because it “allow[ed] the affiant to circumvent the penalties for perjury”); with Ion v. Chevron USA, Inc., 731 F.3d 379, 382 n.2 (5th Cir. 2013) (considering a qualifying declaration as equivalent to a sworn affidavit in determining whether a genuine issue of material fact existed for the purposes of a motion for summary judgment).).

Third, making a declaration “to the best of my knowledge” effectively voids the evidentiary value of the declaration. Slip Op. at 3 n.1 (citing Henderson v. Dep’t of Pub. Safety & Corr., 901 F.2d 1288, 1296 (5th Cir. 1990) (concluding that an affidavit made “to the best of [declarant’s] knowledge and belief” was not based on personal knowledge and was therefore “legally insufficient” to prove the truth of its contents); Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 414 (1st Cir. 2000) (same); Garmon v. Lumpkin Cnty., 878 F.2d 1406, 1408–09 (11th Cir. 1989) (same); see also Am.’s Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992) (per curiam) (“[O]nly [an] affidavit made on personal knowledge has any value (‘to the best of my knowledge and belief’ is insufficient).”).

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