         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




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