Nizarali v. Holder , 366 F. App'x 221 ( 2010 )

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