Nizarali v. Holder

09-2268-ag Nizarali v. Holder UNITED STATES COURT OF APPEALS F OR T HE S ECOND C IRCUIT SUMMARY ORDER R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS C OURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS C OURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL . At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 17 th day of February, two thousand and ten. Present: PIERRE N. LEVAL, RICHARD C. WESLEY, Circuit Judges, JOHN GLEESON, District Judge. * ________________________________________________ NAEEM NIZARALI, a.k.a. NAEEM NIZARALI MOMIN, Petitioner, - v. - (09-2268-ag) ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent. __________________________________________________ Appearing for Petitioner: WENDY A. JERKINS, George R. Willy, P.C., Sugar Land, Texas. Appearing for Respondent: DAVID H. WETMORE, Office of Immigration Litigation, Civil Division, United States Justice Department, Washington, D.C. * The Honorable John Gleeson, of the United States District Court for the Eastern District of New York, sitting by designation. 1 UPON DUE CONSIDERATION of this petition for review of 2 the decision of the Board of Immigration Appeals (“BIA”), IT 3 IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition 4 for review is GRANTED, the BIA’s decision is VACATED, and 5 the case is REMANDED for further proceedings consistent with 6 this order. 7 Petitioner, a native and citizen of Pakistan, seeks 8 review of a decision of the BIA dated April 30, 2009 in 9 which it affirmed an order issued by an immigration judge on 10 February 7, 2008, denying Petitioner’s motion to reopen a 11 June 17, 1994 in absentia order of exclusion and 12 deportation. In 2001, Petitioner filed an application for 13 an alien labor certification, which was granted. On August 14 15, 2007, Petitioner filed an application for an adjustment 15 of status. Petitioner maintains that he became aware of the 16 in absentia order that had been entered against him while 17 preparing this application. On November 20, 2007, 18 Petitioner filed a motion to reopen his exclusion proceeding 19 on the ground that he never received notice of the hearing. 20 We presume the parties’ familiarity with the underlying 21 facts, the procedural history of the case, and the issues 22 before this Court. 2 1 At the outset, it should be noted that “motions to 2 reopen are disfavored in deportation proceedings.” INS v. 3 Abudu, 485 U.S. 94, 107 (1988). However, under the 4 statutory provision in effect during the period relevant to 5 this petition, an in absentia order of deportation may be 6 rescinded if the alien did not receive notice in compliance 7 with the requirements of the Immigration and Nationality 8 Act. 8 U.S.C. § 1252b(c)(3). 9 While there is a strong presumption of delivery if 10 notice is sent by certified mail, the same is not true if 11 the notice is sent by regular mail. Silva-Carvalho Lopes v. 12 Mukasey, 517 F.3d 156, 159-60 (2d Cir. 2008). Rather, when 13 notice is sent by regular mail, only “some presumption of 14 receipt applies.” Id. at 158. There is nothing in the 15 record to indicate that notice was sent by certified mail, 16 therefore we will not assume that the stronger presumption 17 of delivery is applicable. 18 When Petitioner arrived in this country he was given 19 notice of a hearing before an immigration judge, which was 20 to take place on May 12, 1994. Petitioner appeared on this 21 date but was informed that the hearing had been rescheduled. 22 Cf. Bhanot v. Chertoff, 474 F.3d 71, 73 (2d Cir. 2007) (per 3 1 curiam). Petitioner claims he had a “vested interest” in 2 his labor certification and that he was attempting to adjust 3 his status to become a lawful permanent resident. See 4 Silva-Carvalho Lopes, 517 F.3d at 160. Further, Petitioner 5 has provided an affidavit of non-receipt. See Ping Chen v. 6 U.S. Attorney Gen., 502 F.3d 73, 76 (2d Cir. 2007) (per 7 curiam). Given these facts, the BIA is required to 8 “consider all of the petitioner’s evidence (circumstantial 9 or otherwise) in a practical fashion, guided by common 10 sense, to determine whether the slight presumption of 11 receipt of regular mail has more probably than not been 12 overcome.” Silva-Carvalho Lopes, 517 F.3d at 160. 13 Of course, the agency is not required to grant 14 Petitioner’s motion to rescind. However, under the 15 circumstances, it is required to consider Petitioner’s 16 attempt to rebut the presumption of receipt, and the agency 17 must give an explanation should it decide to reject that 18 attempt. See Alrefae v. Chertoff, 471 F.3d 353, 358 (2d 19 Cir. 2006). 20 The immigration judge held that it lacked jurisdiction 21 to adjudicate Petitioner’s pending application for an 22 adjustment of status because the United States Citizenship 4 1 and Immigration Services has exclusive jurisdiction in 2 exclusion cases. The BIA affirmed this ruling. Even if the 3 BIA’s determination was accurate, “a rote recital of a 4 jurisdictional statement — even if technically accurate — 5 does not adequately discharge the BIA’s duty to consider the 6 facts of record relevant to the motion and provide a 7 rational explanation for its ruling.” Sheng Gao Ni v. BIA, 8 520 F.3d 125, 129-30 (2d Cir. 2008). 9 For the foregoing reasons, we GRANT the petition for 10 review, VACATE the decision of the BIA, and REMAND the 11 matter to the agency for further proceedings consistent with 12 this order. 13 14 For the Court 15 Catherine O’Hagan Wolfe, Clerk 16 17 18 5