                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

DALIP SINGH,                                      No. 04-72701
                             Petitioner,
                                                    Agency No.
                    v.
                                                  A77-424-559
ALBERTO R. GONZALES, Attorney
                                                   ORDER AND
General,
                                                     OPINION
                     Respondent.
                                            
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                   Argued and Submitted
           May 17, 2006—San Francisco, California

                         Filed July 19, 2007

      Before: Alex Kozinski and Raymond C. Fisher,
 Circuit Judges, and Frederic Block, Senior District Judge.*

                    Opinion by Judge Fisher;
                   Concurrence by Judge Block




   *The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.

                                 8809
                      SINGH V. GONZALES                   8811


                         COUNSEL

Inna Lipkin, Law Office of Kuldip S. Dhariwal, Fremont,
California, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Jeffrey J. Bern-
stein, Senior Litigation Counsel, Benedetto Giliberti, Attor-
ney, and Joan Smiley (argued), Attorney, United States
Department of Justice, Washington, D.C., for the respondent.


                          ORDER

   Singh’s petition for rehearing and for rehearing en banc,
filed January 12, 2007, is granted in part. The opinion filed
November 28, 2006, see Singh v. Gonzales, 469 F.3d 863 (9th
Cir. 2006), is hereby withdrawn. A superseding opinion and
concurrence will be filed concurrently with this order. Further
petitions for rehearing or rehearing en banc may be filed.
8812                      SINGH V. GONZALES
                               OPINION

FISHER, Circuit Judge:

   Petitioner Dalip Singh is a 42-year-old native and citizen of
India. After an Immigration Judge (IJ) denied Singh’s asylum
claim, Singh timely appealed the IJ’s adverse decision to the
Board of Immigration Appeals (BIA). On October 7, 2003,
the BIA issued its decision denying Singh’s appeal in an order
affirming the IJ without an opinion. Singh and his attorney of
record, Kuldip Dhariwal, swear they did not receive notice of
the decision.1 The BIA contends, however, that it sent the
decision by regular mail to Singh’s counsel, whose correct
address appears on the decision’s transmittal cover sheet; the
BIA acknowledges that the decision was not sent to Singh
himself.

   Singh contends that neither he nor his attorney learned of
the BIA’s October 2003 decision until February 2004, well
after the time for Singh to file an appeal with this court had
lapsed. See 8 U.S.C. § 1252(b)(1) (30-day time limit for filing
petitions for judicial review); Caruncho v. INS, 68 F.3d 356,
359 (9th Cir. 1995) (statutory time limit is mandatory and
jurisdictional); see also Stone v. INS, 514 U.S. 386, 394-95
(1995) (statutory time limit is not tolled by the filing of a
motion to reopen or reconsider). On February 23, Dhariwal
received a “bag and baggage order” from the Immigration and
Naturalization Service,2 directing Singh to appear for removal
on March 2, 2004.3 After Dhariwal phoned the BIA and was
   1
     The factual allegations supporting Singh’s and Dhariwal’s claims that
they did not receive notice of the October 2003 decision are taken from
the motion to reopen and affidavits submitted to the BIA. Except as other-
wise noted, the government does not contest these assertions.
   2
     The INS has been abolished and its functions transferred to the Depart-
ment of Homeland Security. See Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2135, 2142 (2002), 6 U.S.C. §§ 101-557.
   3
     The bag and baggage order was dated February 11, 2004. Such an
order issues once the government determines that there is no further
administrative relief available to an alien who is subject to an order of
removal, and instructs the alien to appear at a specified location and time
for removal.
                       SINGH V. GONZALES                    8813
informed about its October 2003 denial of Singh’s appeal, he
promptly filed a motion to reopen with the BIA, requesting
that it reissue its decision so Singh could timely appeal to this
court. Both Dhariwal and Singh attached affidavits to the
motion to reopen, swearing under penalty of perjury that nei-
ther had received the Board’s earlier decision. The BIA
denied Singh’s motion on April 28, 2004, stating, in full:
“The respondent has filed a motion to reissue the Board’s
October 7, 2003, decision. The motion is denied, as the record
reflects that the respondent’s decision was correctly mailed to
the respondent’s attorney of record.” Singh now petitions for
review of the Board’s denial of his motion to reopen.

   [1] Singh’s affidavits of nonreceipt suggest that the deci-
sion may never have been mailed. If true, that would violate
8 C.F.R. § 1003.1(f), which requires that the BIA serve a copy
of its decision on the affected alien. The BIA stated that the
decision “was correctly mailed” to Singh’s attorney, but pro-
vided no explanation of how it reached this conclusion.
“[T]he BIA is obligated to consider and address in its entirety
the evidence submitted by a petitioner,” and where its failure
to do so could have affected its decision, remand is appropri-
ate. Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.
2005); see also Maravilla Maravilla v. Ashcroft, 381 F.3d
855, 858 (9th Cir. 2004).

   [2] If the decision was properly mailed, then the BIA ful-
filled its statutory duty of service. See Martinez-Serrano v.
INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (“Time for filing a
review petition begins to run when the BIA complies with the
terms of federal regulations by mailing its decision to peti-
tioner’s [or his counsel’s] address of record.”) (emphasis
removed); see also 8 C.F.R. §§ 1003.1(f), 1003.13 (requiring
the BIA to serve notice of its decision on the affected alien
and defining service as “physically presenting or mailing a
document to the appropriate party or parties”). In concluding
that Singh’s decision was properly mailed, however, the BIA
did not explain its reasons for doing so, nor did it acknowl-
8814                   SINGH V. GONZALES
edge the affidavits filed by both Singh and his lawyer alleging
nonreceipt of the BIA’s decision. Although we have previ-
ously held that a properly addressed cover letter creates a pre-
sumption of mailing on the date of the cover letter, see
Haroutunian v. INS, 87 F.3d 374, 375 (9th Cir. 1996), we
have never held that such a presumption cannot be rebutted by
affidavits of nonreceipt by both a petitioner and his counsel
of record. Indeed, in Haroutunian, we specifically noted that
“[a]lthough Haroutunian had ample opportunity to present
evidence” to support his assertions of nonmailing, he had
failed to do so and that the sole evidence before us then was
the properly addressed cover letter. Id.; see also Karimian-
Kaklaki v. INS, 997 F.2d 108, 111 (5th Cir. 1993) (applying
a presumption of mailing based on a cover letter but noting
that “petitioners have not asserted that they did not receive a
copy of the BIA decision”). Because the only evidence
regarding mailing petitioners would have is information about
their own receipt or nonreceipt of the decision, Haroutunian
does not foreclose a petitioner’s sworn affidavit — particu-
larly if reinforced by an affidavit from counsel, as here —
being sufficient to rebut the presumption of mailing and
requiring the BIA to look beyond the cover letter. We decline
to resolve this issue on the record before us, however.

   Had the BIA considered and specifically addressed the
effect of Singh’s and his counsel’s affidavits of nonreceipt, it
may well have concluded that the presumption of mailing cre-
ated by the cover letter was rebutted and would have required
further evidence of mailing before determining that the deci-
sion had indeed been properly mailed. See Nunley v. City of
Los Angeles, 52 F.3d 792, 795-96 & n.5 (9th Cir. 1995) (stat-
ing that “[u]nder the so-called ‘bursting bubble’ approach to
presumptions, a presumption disappears where rebuttal evi-
dence is presented” and that a “specific factual denial of
receipt” by the addressee is sufficient to support a finding that
the recipient did not receive notice of entry of judgment from
the district court, thereby allowing the district court the dis-
cretion to extend the party’s time to file an appeal). We do not
                       SINGH V. GONZALES                    8815
know from the BIA’s cursory denial of Singh’s motion in its
April 28, 2004 decision whether or not it did consider the affi-
davits, or what process it would have followed assuming the
affidavits were sufficient to rebut the presumption of mailing.

   [3] Without the benefit of the BIA’s articulated reasoning
on these issues, we decline to decide in the first instance the
weight and consequences of Singh’s and his counsel’s sworn
affidavits of nonreceipt, and remand to the BIA to do so. See
INS v. Ventura, 537 U.S. 12, 17 (2002) (per curiam). It would
be helpful to the court if on remand the BIA would specifi-
cally address what procedures or processes exist to assure that
petitioners are notified of the BIA’s decisions, including
assuring that decisions are actually mailed, and how petition-
ers can inform themselves of the status of pending decisions.

  [4] We therefore GRANT the petition for review and
REMAND for further proceedings consistent with this opin-
ion.



BLOCK, Senior District Judge, concurring in the result:

   I agree that the BIA’s failure to address the affidavits of
non-receipt requires remand. I write separately, however, to
express my disagreement with my colleagues’ conclusion that
the BIA should be allowed to determine, in the first instance,
the legal effect of the affidavits. In my view, we owe it to the
parties to provide clearer guidance, if for no other reason than
to foreclose another petition for review should the BIA mis-
takenly determine that the affidavits, if authentic, do not over-
come the presumption of mailing. Cf., e.g., Yepes-Prado v.
INS, 10 F.3d 1363, 1372 (9th Cir. 1993) (“To avoid a repeti-
tion of [the BIA’s] errors on remand, we will address them at
this point.”).

   I would hold that, absent any concerns about their authen-
ticity, the affidavits were sufficient to rebut the presumption
8816                  SINGH V. GONZALES
of mailing that arose by virtue of the BIA’s correctly
addressed cover letter. See Nunley v. City of Los Angeles, 52
F.3d 792, 796 (9th Cir. 1995) (“Courts have formulated the
presumption [of mailing] so as to hold it rebutted upon a spe-
cific factual denial of receipt.”). I would, therefore, remand
and require the BIA (1) to address whether there is any reason
to doubt the affidavits’ authenticity, and if not, (2) to deter-
mine, without the benefit of any presumption, whether its
decision was properly mailed. See id. (“Under the so-called
‘bursting bubble’ approach to presumptions, a presumption
disappears where rebuttal evidence is presented.”).
