                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

GULZAR SINGH,                                      Nos. 03-72197
                              Petitioner,
                                                         03-74613
                    v.
                                                    Agency No.
ALBERTO R. GONZALES, Attorney                        A76-458-043
General,*
                                                      OPINION
                     Respondent.
                                            
           On Petition for Review of an Order of the
                Board of Immigration Appeals

                     Argued and Submitted
           April 15, 2005—San Francisco, California

                          Filed June 24, 2005

       Before: Donald P. Lay,** Betty B. Fletcher, and
           Michael Daly Hawkins, Circuit Judges.

                         Opinion by Judge Lay




   *Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
   **The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.

                                  7573
7576                  SINGH v. GONZALES


                        COUNSEL

Martin Resendez Guajardo, Law Office of Martin Resendez
Guajardo, San Francisco, California, for the petitioner.

Andrew C. MacLachlan, United States Department of Justice,
Office of Immigration Litigation, Civil Division, Washington,
D.C., for the respondent.


                         OPINION

LAY, Circuit Judge:

  Petitioner Gulzar Singh seeks review of two orders issued
by the Board of Immigration Appeals (“Board”). The first
order was issued May 6, 2003, and it affirmed an Immigration
Judge’s (“IJ”) denial of Singh’s motion to reopen removal
proceedings and rescind a removal order which was entered
against Singh in absentia. The second Board order issued on
December 8, 2003. This granted Singh’s motion for reconsid-
                            SINGH v. GONZALES                            7577
eration of the first decision, but then again denied Singh’s
request to reopen removal proceedings. We reverse and
remand this matter to the Board, with further orders to remand
this matter to the IJ and to allow Singh to reopen removal pro-
ceedings.

   Mr. Singh is a native and citizen of India who entered the
U.S. on May 8, 1997, pursuant to a non-immigrant visitor
visa. Singh remained in the U.S. past the authorized period of
time and filed an application for asylum with the former
Immigration and Naturalization Service (“INS” or “Service”).

   A few months later, on March 30, 1998, Singh wrote a let-
ter to the asylum office in San Francisco withdrawing his asy-
lum application. The letter stated, “I now wish to withdraw
my Political Asylum claim. I believe that I should try to reside
in a different city in my home country.” Singh did not state
when he intended to depart the U.S., nor did he provide a for-
warding address. The asylum office mailed a notice to Singh’s
address of record on April 16, 1998, confirming termination
of his asylum application. Singh then departed the U.S. on
May 1, 1998, and returned to India. The asylum office was
never notified of his departure.

   Over two months after Singh’s departure, on July 23, 1998,
the asylum office served a notice to appear (“NTA”) upon
Singh by certified mail (return receipt requested) to his last
known address in the U.S. The NTA alleged that Singh was
removable as an alien who remained in the country longer
than permitted under the terms of his visa. He was ordered to
appear at a hearing before an IJ on October 21, 1998.1 When
Singh did not appear, the IJ ordered him removed in absentia.
  1
    At oral argument, Singh claimed he never received the NTA. The Gov-
ernment responded that the NTA was successfully delivered to Singh’s
former address, that someone signed for it, and that even if Singh was not
at the address on that day, there is no evidence that he failed to receive this
NTA. The Government seems to imply that someone at the address told
Singh about the NTA, or gave it to him, but no evidence supports this alle-
gation. Notably, the Government did not submit into evidence the return
receipt for the certified mailing.
7578                      SINGH v. GONZALES
   Singh re-entered the U.S. as a non-immigrant visitor on
March 6, 1999. Over three years later, on March 12, 2002,
Singh filed a motion to reopen removal proceedings and to
rescind the in absentia removal order. Singh alleged that he
was not present in the U.S. when the hearing occurred
because he had already returned to India. The IJ denied
Singh’s motion, finding that notice was properly provided to
Singh at the only address he had ever provided to the Immi-
gration Court. Thus, Singh could not reopen for lack of proper
notice, and at any rate, his motion was time-barred. Singh
appealed. The Board affirmed the IJ’s decision without opin-
ion on May 6, 2003. Singh filed a timely petition for review
of the Board’s decision.

   On June 3, 2003, Singh also filed a motion with the Board
for reconsideration of its May 6, 2003, decision. This time,
Singh argued that the IJ lacked jurisdiction to hold the Octo-
ber 21, 1998, hearing and to enter the removal order in absen-
tia. Singh pointed out that he left the U.S. on May 1, 1998,
prior to the time jurisdiction vested with the IJ (i.e., before the
NTA was filed with the Immigration Court on August 27,
1998).2

   The Board agreed to reconsider its decision on the motion
to reopen because Singh “correctly argue[d] that neither the
Immigration Judge nor this Board had jurisdiction to adjudi-
cate his March 12, 2002, motion to reopen.”3 The Board cited
the rule that “[a] motion to reopen shall not be made by or on
behalf of a person who is the subject of . . . removal proceed-
   2
     Jurisdiction vests, and removal proceedings before an Immigration
Judge commence, when a charging document is filed with the Immigration
Court by the Service. See Cortez-Felipe v. INS, 245 F.3d 1054, 1057 (9th
Cir. 2001).
   3
     Note that this recapitulation of Singh’s argument is somewhat incor-
rect. Singh did not argue that the IJ and the BIA lacked jurisdiction to
adjudicate his March 12, 2002 motion to reopen. He argued that the IJ
lacked jurisdiction to conduct the original October 21, 1998 removal hear-
ing and to enter the removal order in absentia.
                          SINGH v. GONZALES                         7579
ings subsequent to his departure from the United States. See
8 C.F. R. § 1003.2(d).” Since Singh’s motion to reopen was
filed after he departed the U.S., the Board reasoned that it
never should have considered Singh’s motion to reopen. The
Board vacated its May 6, 2003 decision affirming the IJ’s
decision without opinion.

   Next, the Board addressed whether the IJ lacked jurisdic-
tion to enter the removal order in absentia on October 21,
1998. The Board concluded the NTA was properly effected
through delivery to Singh’s last known address by certified
mail; because this mailing was not returned, Singh must have
received the NTA. The Board also found there was no evi-
dence of Singh’s departure date from the U.S., such as airline
tickets.4 It concluded that the October 21, 1998, removal order
in absentia was properly entered. The original in absentia
removal order was deemed “final to the same extent as though
no motion to reopen had [ever] been filed.” Singh filed a
timely petition to review this (second) decision of the Board.
Both petitions have been consolidated.

   Denials of motions to reopen are reviewed for an abuse of
discretion. See Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.
2002). The Board’s determination of a purely legal question
is reviewed de novo. See Socop-Gonzales v. INS, 272 F.3d
1176, 1187 (9th Cir. 2001) (en banc). Where the Board’s
interpretation of a statute is clearly erroneous or inconsistent
with the plain meaning of the statute, deference to the BIA’s
interpretation is not warranted. Id.
  4
    On the contrary, Singh’s passport corroborates his claim that he
departed on May 1, 1998, as it bears a stamp indicating that Singh entered
Delhi on May 2, 1998. This evidence was in the record before the IJ and
Board, yet the Board’s decision fails to explain why this evidence consti-
tutes insufficient corroboration of Singh’s departure from the U.S.
7580                  SINGH v. GONZALES
I.   The Board’s Jurisdiction to Consider Singh’s Motion
     to Reopen Removal Proceedings

   [1] The Board vacated its May 6, 2003, decision without
opinion based on lack of jurisdiction pursuant to 8 C.F.R.
§ 1003.2(d). That regulation states:

     (d) Departure, deportation, or removal. A motion
     to reopen or a motion to reconsider shall not be made
     by or on behalf of a person who is the subject of
     exclusion, deportation, or removal proceedings sub-
     sequent to his or her departure from the United
     States. Any departure from the United States, includ-
     ing the deportation or removal of a person who is the
     subject of exclusion, deportation, or removal pro-
     ceedings, occurring after the filing of a motion to
     reopen or a motion to reconsider, shall constitute a
     withdrawal of such motion.

The Board interpreted this regulation to mean that any time a
petitioner files a motion to reopen after departing the country,
the motion is barred. The Board’s interpretation forgets a fun-
damental premise: the scope of this regulation is clearly lim-
ited to persons who depart the U.S. after removal proceedings
have already commenced against them. Removal proceedings
would have to commence before a motion to reopen or recon-
sider is procedurally possible. Thus, the plain language of this
regulation is limited to persons who depart the U.S. after
removal proceedings have already commenced against them.
The regulation does not encompass the novel factual situation
presented here — i.e., a petitioner who first departs the U.S.,
then becomes the subject of removal proceedings, returns, and
files a motion to reopen.

   [2] The Board’s interpretation of this regulation also con-
flicts with established law. Under the Board’s reading of the
regulation in this case, the clause “who is the subject of . . .
removal proceedings” modifies the phrase “subsequent to his
                           SINGH v. GONZALES                           7581
or her departure.” However, the well-settled interpretation of
this regulation is that the clause “who is the subject of . . .
removal proceedings” modifies the term “person.” The sen-
tence as a whole is taken to mean that a person who leaves the
U.S. after removal proceedings have already been initiated is
barred from filing a motion to reopen.5 The clause “who is the
subject of . . . removal proceedings” cannot modify two things
at the same time, thus the Board’s interpretation of 8 C.F.R.
§ 1003.2(d) was clearly erroneous. Mr. Singh was not the
“subject of . . . removal proceedings” at the time he left the
U.S., so § 1003.2(d) did not operate to remove the Board’s
jurisdiction to consider Singh’s motion to reopen.

   In light of the Board’s incorrect basis for vacating its May
6, 2003, order, we reject the Board’s conclusion that the origi-
nal in absentia removal order should be deemed “final to the
same extent as though no motion to reopen had [ever] been
filed.” Singh appealed the denial of his motion to reopen, and
that appeal is before this court.

II.   The IJ’s Denial of Singh’s Motion to Reopen

   [3] We also conclude that the IJ’s denial of Singh’s motion
to reopen was an abuse of discretion.6 Under 8 U.S.C.
§ 1229a(b)(5)(C)(ii), a removal order may be rescinded “upon
a motion to reopen . . . if the alien demonstrates that [he] did
not receive notice in accordance with paragraph (1) or (2) of
section 1229(a),” which provides that the alien must be served
with an NTA.7 Singh maintains that he left the U.S. on May
   5
     See, e.g., Azarte v. Ashcroft, 394 F.3d 1278, 1281-82 (9th Cir. 2005)
(noting that an alien who departs after being granted relief from removal
in the form of voluntary departure forfeits the right to a motion to reopen).
   6
     Since the Board affirmed the IJ’s recommendation on this issue with-
out opinion, we review the IJ’s decision as the final agency decision. See
Sidhu v. Ashcroft, 368 F.3d 1160, 1163 (9th Cir. 2004).
   7
     The IJ also erred by holding, in the alternative, that Singh’s motion to
reopen was time-barred, because a motion to reopen based on lack of
notice may be “filed at any time.” 8 U.S.C. § 1229a(b)(5)(C)(ii) (emphasis
added).
7582                  SINGH v. GONZALES
1, 1998, and his passport corroborates this. The Service did
not send the NTA to Singh until July 23, 1998. Because Singh
provided evidence that he was no longer in the U.S. when the
NTA was mailed to his former address, he established that he
did not receive notice in accordance with § 1229(a), and the
denial of his motion to reopen was an abuse of discretion.

   [4] The Government argues it was Singh’s own fault that
he did not receive the NTA because he failed to provide the
INS with his change of address, as required under 8 U.S.C.
§ 1305(a). However, § 1305(a) states, “[e]ach alien required
to be registered under this subchapter who is within the United
States shall notify the Attorney General in writing of each
change of address and new address within ten days from the
date of such change . . . .” Id. (emphasis added). The plain
language of that statute indicates the address requirement
applies only so long as the alien “is within the United States.”
Since Singh left the U.S. altogether in May 1998, § 1305(a)
did not apply to him.

   [5] Nor can the Government argue that Singh should have
provided his change of address to the asylum office before he
left the U.S. An alien is excused from failing to notify the INS
of a change of address, and as a consequence, failing to
appear for an initial removal proceeding, if the Service never
actually provided the alien with written notice of the address
notification requirement, which is what happened here. See
Lahmidi v. INS, 149 F.3d 1011, 1017 (9th Cir. 1998). It is true
that 8 U.S.C. § 1229a(b)(5)(B) waives the written NTA
requirement under 8 U.S.C. § 1229(a) if the alien has “failed
to provide the address required under section 1229(a)(1)(F).”
However, 8 U.S.C. § 1229(a)(1)(F) is the provision that
requires the Attorney General, in the NTA, to inform aliens of
the address notification requirements and the consequences of
failing to provide such notification to the INS. Because Singh
never received the NTA, he never received the instructions on
changing his address. Accordingly, 8 U.S.C. § 1229a(b)(5)(B)
cannot excuse the Service’s failure to provide Singh with
                      SINGH v. GONZALES                   7583
written notice of removal proceedings or defeat Singh’s
excuse for failing to appear.

   [6] Accordingly, although the Service satisfied all of the
jurisdictional requirements for Singh’s removal proceedings,
we conclude that Singh has demonstrated a failure to receive
the NTA and any notice of the address notification require-
ments. Therefore, his motion to reopen should have been
granted.

   PETITION FOR REVIEW GRANTED and REMANDED
to the Board, with direction to remand this matter to the IJ to
reopen removal proceedings and to rescind the removal order.

  GRANTED AND REMANDED.
