United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 13, 2006
Charles R. Fulbruge III
Clerk
No. 04-60934
Summary Calendar
MOHAMMED A. KHAN,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
(A75 296 989)
Before BARKSDALE, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Mohammed Asif Khan seeks review of the final order of the Board
of Immigration Appeals (BIA) dismissing his appeal. Khan asserts
violations of a federal regulation and his right to due process,
based on his attorney’s failure to receive service of his Notice to
Appear.
Khan is a native and citizen of Pakistan. In 1993, he entered
the United States illegally. On 13 May 2003, the Department of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Homeland Security served him, in person, with a Notice to Appear.
The Notice was filed with the Immigration Court, which notified
Khan, via mail on 5 June 2003 at the same address at which he had
been personally served, that his hearing would be held on 11
September 2003. Khan failed to appear, and the Immigration Judge
(IJ) issued an order in abstentia for his removal to Pakistan.
On 27 February 2004, Khan filed a motion with the IJ, seeking
to rescind the removal order and to reopen his removal proceedings.
His motion was denied because it did not assert any basis required
under 8 U.S.C. § 1229a(b)(5)(C) for reopening of that hearing.
On 8 April 2004, Khan appealed the IJ’s decision to the BIA,
asserting, inter alia, for the first time that the IJ’s removal
order was unlawful and unconstitutional because his attorney did not
receive service of his original Notice to Appear. In doing so, Khan
alleged violations of 8 C.F.R. § 292.5(a) and his right to due
process. On 20 September 2004, the BIA dismissed Khan’s appeal,
noting that his claim had not been raised before the IJ, and
finding, inter alia, that his Notice of Appeal had been properly
served.
The Government contends we lack jurisdiction to review Khan’s
due process claim because it was not raised before the IJ at his
original removal hearing or in his motion to reopen. Although 8
U.S.C. § 1252(d)(1) permits our review of a final order of removal
only when “the alien has exhausted all administrative remedies
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available to the alien as of right”, Khan fulfilled this requirement
by raising his due process claim before the BIA. See Wang v.
Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001) (“An alien fails to
exhaust his administrative remedies with respect to an issue when
the issue is not raised in the first instance before the BIA –
either on direct appeal or in a motion to reopen.”) (emphasis
added). The Government fails to cite, nor can we find, case law
requiring Khan to have raised his due process claim before the IJ
– either at his original hearing or in his motion to reopen.
Therefore, we have jurisdiction to consider Khan’s claims.
Khan asserts that 8 C.F.R. § 292.5(a) and his right to due
process were violated when, although he received personal service
of his Notice to Appear for removal proceedings, his attorney did
not receive service. These claims are without merit.
The Code of Federal Regulations defines “service” in removal
proceedings as “physically presenting or mailing a document to the
appropriate party or parties”, and further explains that “a Notice
to Appear ... shall be served to the alien in person, or if personal
service is not practicable, shall be served by regular mail to the
alien or the alien’s attorney of record”. 8 C.F.R. § 1003.13. The
certificate of service for Khan’s Notice to Appear reflects that he
was served in person and bears his signature, thus satisfying his
service requirements. His hearing notice was subsequently mailed
to his last known address, where he had been served in person less
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than one month earlier. Therefore, Khan received proper service
under the regulations.
Khan claims that 8 C.F.R. § 292.5(a) requires that his attorney
have also been served with the Notice to Appear. That regulation
requires certain types of notice to be served upon “the attorney or
representative of record, or the person himself if unrepresented”.
8 C.F.R. § 292.5(a). Here, even if § 292.5(a) applies, the record
does not indicate that Khan had an attorney in 2003 when served with
the Notice to Appear. Accordingly, we defer to the BIA’s finding
that 8 C.F.R. § 1003.13 is the controlling regulation. Therefore,
personal service on Khan was sufficient. Zmijewska v. Gonzales, 426
F.3d 99, 102 (2d Cir. 2005) (“[W]e accord substantial deference to
the [BIA’s] interpretations of the statutes and regulations that it
administers”.) (alteration in original; internal citation and
quotation marks omitted) (citing Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837 (1984)).
DENIED
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