Ruballos v. Sessions

15-1866
Ruballos v. Sessions
BIA
Ferris, IJ
A094 091 857
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 10th day of March, two thousand seventeen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 MARCO RUBALLOS,
14 Petitioner,
15
16 v. 15-1866
17 NAC
18 JEFFERSON B. SESSIONS, III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.1*
21 _____________________________________
22
23 FOR PETITIONER: Bruno J. Bembi, Hempstead, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Erica B.
27 Miles, Senior Litigation Counsel;
28 Aric A. Anderson, Trial Attorney,

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jefferson B. Sessions, III, is
automatically substituted for former Attorney General Loretta E. Lynch.
1 Office of Immigration Litigation,
2 United States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED that the petition for review is

8 GRANTED in part and DENIED in part.

9 Petitioner Marco Ruballos, a native and citizen of El

10 Salvador, seeks review of a May 6, 2015, decision of the BIA

11 affirming a November 13, 2013, decision of an Immigration Judge

12 (“IJ”) denying Ruballos’s motion to rescind his in absentia

13 removal order. In re Marco T. Ruballos, No. A094 091 857

14 (B.I.A. May 6, 2015), aff’g No. A094 091 857 (Immig. Ct. N.Y.

15 City Nov. 13, 2013). We assume the parties’ familiarity with

16 the underlying facts and procedural history in this case.

17 Under the circumstances of this case, we have reviewed the

18 IJ’s decision as supplemented by the BIA. See Yan Chen v.

19 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the

20 denial of a motion to rescind an in absentia removal order under

21 the same abuse of discretion standard applicable to motions to

22 reopen. See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.

23 2006).

24

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1 “An order entered in absentia in deportation proceedings

2 may be rescinded only upon a motion to reopen filed . . . [a]t

3 any time if the alien demonstrates that he or she did not receive

4 notice . . . .” 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2); 8 U.S.C.

5 § 1229a(b)(5)(C)(ii). There is a receipt presumption,

6 however, for notices sent by regular mail, which “is weaker than

7 that accorded to notice sent by certified mail.” Matter of

8 M-R-A-, 24 I. & N. Dec. 665, 673 (B.I.A. 2008). “[W]hen an

9 Immigration Judge adjudicates a respondent’s motion to reopen

10 to rescind an in absentia order of removal based on a claim that

11 a Notice to Appear or Notice of Hearing sent by regular mail

12 to the most recent address provided was not received, all

13 relevant evidence submitted to overcome the weaker presumption

14 of delivery must be considered.” Id. at 673-74 (emphasis

15 added). Relevant factors include the following: “(1) the

16 respondent’s affidavit; (2) affidavits from family members or

17 other individuals who are knowledgeable about the facts

18 relevant to whether notice was received; (3) the respondent’s

19 actions upon learning of the in absentia order, and whether due

20 diligence was exercised in seeking to redress the situation;

21 (4) any prior affirmative application for relief, indicating

22 that the respondent had an incentive to appear; (5) any prior

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1 application for relief filed with the Immigration Court or any

2 prima facie evidence in the record or the respondent’s motion

3 of statutory eligibility for relief, indicating that the

4 respondent had an incentive to appear; (6) the respondent’s

5 previous attendance at Immigration Court hearings, if

6 applicable; and (7) any other circumstances or evidence

7 indicating possible nonreceipt of notice.” Id. at 674.

8 (emphasis added). Even if the presumption is rebutted, “aliens

9 who fail to provide a written update of a change of address are

10 deemed to have constructively received notice” if they have been

11 notified of the change of address requirements and the

12 consequences of failing to appear. See Maghradze v. Gonzales,

13 462 F.3d 150, 154 (2d Cir. 2006).

14 We conclude that the IJ abused her discretion by

15 considering only one of the many required factors in determining

16 whether Ruballos had rebutted the receipt presumption attached

17 to his notice. See Matter of M-R-A-, 24 I. & N. Dec. at 674.

18 The IJ, relying on Iavorksi v. INS, 232 F.3d 124 (2d Cir. 2000),

19 denied Ruballos’s motion solely on diligence grounds; however,

20 Iavorksi concerns equitable tolling of the 90-day deadline for

21 motions to reopen based on ineffective assistance of counsel,

22 and Ruballos’s motion to rescind was not subject to any time

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1 limitation, see 232 F.3d at 134; 8 U.S.C. § 1229a(b)(5)(C)(ii);

2 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2). Although diligence is

3 relevant to determining whether the receipt presumption has

4 been rebutted, it is only one of many factors that “must be

5 considered.” Matter of M-R-A-, 24 I. & N. Dec. at 674.

6 The BIA further erred by concluding that Ruballos had

7 constructive notice of his 1998 hearing because the hearing

8 notice was properly mailed to the Mahopac address provided in

9 his 1996 asylum application. We have approved of application

10 of the doctrine of constructive notice only when an alien has

11 previously been given notice of the change of address

12 requirements and the consequences of failing to appear. See

13 Maghradze, 462 F.3d at 153-54. Here, Ruballos was not notified

14 of the change of address requirements and the consequences of

15 failing to appear; his 1996 asylum application contains no such

16 instructions or warnings, and nothing else in the record

17 suggests that they were provided prior to the mailing of the

18 notice. Therefore, the BIA’s supplementary ruling that

19 Ruballos had constructive notice of his hearing notice was also

20 an abuse of discretion. See id.

21 Lastly, we decline to consider Ruballos’s unexhausted

22 argument that he was improperly ordered removed when he was a

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1 Temporary Protected Status registrant and a member of the class

2 in American Baptist Churches v. Thornburgh, 760 F. Supp. 796

3 (N.D. Cal. 1991). See Lin Zhong v. U.S. Dep’t of Justice, 480

4 F.3d 104, 122 (2d Cir. 2007) (providing that judicially imposed

5 issue exhaustion is mandatory).

6 For the foregoing reasons, the petition for review is

7 GRANTED in part and DENIED in part, and the case is REMANDED

8 for further proceedings consistent with this order. As we have

9 completed our review, the stay of removal that the Court

10 previously granted in this petition is VACATED. Any pending

11 request for oral argument in this petition is DENIED in

12 accordance with Federal Rule of Appellate Procedure 34(a)(2),

13 and Second Circuit Local Rule 34.1(b).

14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk

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