                                                        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that this opinion should not be published and is not precedent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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