     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


                                    2
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


                                       3
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


                                             4
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


                                       5
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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