10-2504-ag
Turner v. Holder
                                                                                 BIA
                                                                            Straus, IJ
                                                                        A038 959 380

                    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 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 13th day of January, two thousand twelve.

PRESENT:
         JON O. NEWMAN,
         RALPH K. WINTER,
         ROSEMARY S. POOLER,
             Circuit Judges.
_______________________________________

WILBERT KITSON ANDREW TURNER
         Petitioner,

                   v.                                              10-2504-ag
                                                                          NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                Nancy E. Martin, Wethersfield, Conn.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Jennifer L. Lightbody, Senior Litiga-
                               tion Counsel; Edward E. Wiggers, Trial
                               Attorney, Office of Immigration Liti-
                               gation, United States Department of
                               Justice, Washington D.C.
     UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is GRANTED, and the case is REMANDED.

     Wilbert Kitson Andrew Turner, a native and citizen of

Jamaica, seeks review of a May 28, 2010, decision of the BIA

affirming the January 8, 2010, decision of Immigration Judge

(“IJ”) Michael Straus denying his motion to reopen his removal

proceedings in order to challenge a removal (then called

deportation) order entered in absentia in 1991.1                  In re

Wilbert Kitson Andrew Turner, No. A038 959 380 (B.I.A. May 28,

2010), aff’g No. A038 959 380 (Immig. Ct. Hartford Jan. 8,

2010).    Turner alleges that if he had been present at the

deportation hearing, he would have been eligible to apply for

a waiver of deportation because he was a permanent resident of

the United States, his wife and six children are United States

citizens, and the offense for which he was ordered deported

involved less than 30 grams of marijuana.2 We assume the


     1
      Turner filed an initial motion to reopen in 1999, which was denied.
His administrative appeal was dismissed as untimely. No judicial review
was sought. The IJ ruled in the pending case that, because Turner was in
deportation proceedings, his current motion to reopen was not number-
barred.
     2
      Turner’s brief cites to 8 U.S.C. § 1251(f)(2)(A)(B), which we
cannot locate.     It is likely that he means to cite 8 U.S.C.
§ 1251(a)(2)(B)(i) (1988), applicable at the time of his in absentia

                                  -2-
parties’ familiarity with the underlying facts and procedural

history in this case.

       We review the BIA’s denial of a motion to reopen for

abuse of discretion.          See Ali v. Gonzales, 448 F.3d 515, 517

(2d Cir. 2006).       An abuse of discretion may be found where the

agency    “has misunderstood or misapplied the governing law.”

Abu Hasirah v. Dep't of Homeland Sec., 478 F.3d 474, 476-77

(2d Cir. 2007) (per curiam).

       Under the circumstances of this case, we have reviewed

both    the    IJ’s   and    the   BIA’s    opinions      “for   the   sake   of

completeness.”        Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

2008).    An    order   of    removal      entered   in    absentia    may    be

rescinded upon a motion to reopen filed at any time if the

alien demonstrates that he did not receive notice as required.

8 U.S.C. § 1229a(b)(5)(C). In the pending case, Turner sought

reopening.

       The agency did not abuse its discretion in determining

that Turner received proper service of his order to show cause

(“OSC”) by personal service.               See 8 C.F.R. § 242.1(c)(1990)

(providing that service of an order to show cause could “be


deportation hearing, which contains the exemption from deportation for
“a single offense involving possession for one’s own use of 30 grams or
less of marijuana.”      That section is now codified at 8 U.S.C.
§ 1227(a)((2)(B)(i) (2006).

                                      -3-
accomplished       either   by    personal     service   or    by   routine

service.”); C.F.R §§ 103.5a(a)(2)(i), (iv) (1990) (providing

that personal service could be effectuated by “[d]elivery of

a   copy   personally”).         Substantial    evidence      supports   the

agency’s finding that Turner received the OSC by hand, as the

OSC indicates it was served by hand, and a sworn affidavit

from a local sheriff with custody of Turner stated that Turner

was turned over to immigration custody on the date the OSC was

served.      See    8   U.S.C.    §   1252(b)(4)(B)      (providing      that

“administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary.”).

     However, the agency abused its discretion by committing

an error of law in considering Turner’s claim that he did not

receive notice of his deportation hearing. The OSC did not

specify the place or date for Turner’s deportation hearing.

Once the place and date were initially determined, no notice

of the hearing was sent to 5001 Kindly Court, Apt. D, Virginia

Beach, Virginia, which Turner claims was his address at the

time his initial hearing notices were sent.              This address was

set forth in the OSC. The OSC also indicates that Turner

requested a hearing in Connecticut.             Two hearing notices for


                                      -4-
a rescheduled hearing were sent by regular mail to “638 Howe

Avenue Shelton CT 06484.” This address was listed on Turner’s

“Record of Deportable Alien.”          These notices were returned as

undeliverable.     Two subsequent hearing notices were sent in

late 1990 to “80 Spruce Street #3E Stamford CT 06902.”               This

address was listed on a 1985 Connecticut state court document.

The second of these notices specified the January 3, 1991,

date of the hearing at which the in absentia order was issued.

This notice was not returned by postal authorities.                  The

Government asserts that this was the address of his then girl

friend’s mother.

      The IJ, as affirmed by the BIA, concluded that these

attempts to mail notice to Turner satisfied the requirement

that reasonable notice under all of the circumstances be

given.     See INA § 242(b)(1)(1990), 8 U.S.C. 1252(b)(1)(1990)

(applicable at the time Turner’s hearing notices were mailed,

and providing that a person subject to deportation proceedings

was   to    “be   given      notice,     reasonable   under   all     the

circumstances, of the nature of the charges against him and of

the time and place at which the proceedings will be held”).

      In   reaching   this    conclusion,    the   agency   abused    its

discretion by assessing only whether notice was properly


                                   -5-
mailed, rather than actually received.           We have held that

although the question of whether an IJ may enter an in

absentia removal order turns on whether written notice was

properly mailed, “[w]hen an alien seeks to rescind the removal

order [] claiming that he did not receive notice of the

hearing, . . . the central issue no longer is whether the

notice was properly mailed . . ., but rather whether the alien

actually received the notice.”     Alrefae v. Chertoff, 471 F.3d

353, 359 (2d Cir. 2006)(emphasis in the original) (internal

citations omitted); Lopes v. Gonzales, 468 F.3d 81, 84 (2d

Cir. 2006) (per curiam) (“Lopes I”).       When notice is sent by

regular mail, the agency may apply a “slight” rebuttable

presumption of receipt if “the record establishes that the

notice was accurately addressed and mailed in accordance with

normal   office   procedures.”     Lopes   I,   468   F.3d   at   85-86

(interpreting the requirement under 8 U.S.C. § 1229(a)(1) that

a notice to appear “shall be given in person to the alien (or,

if personal service is not practicable, through service by

mail to the alien or to the alien’s counsel of record)”).

This presumption “does no more than to shift a tie-breaking

burden of proof to the alien claiming non-receipt.”          Lopes v.

Mukasey, 517 F.3d 156, 160 (2d Cir. 2008) (“Lopes II”).              In


                                 -6-
turn, the agency has an obligation to “consider all relevant

evidence, including circumstantial evidence, offered to rebut

th[e] presumption,” Alrefae, 471 F.3d at 359-60, including

whether the alien claiming non-receipt had an interest in

attending his hearing, Lopes II, 517 F.3d at 160.

    Because the two notices sent to the “638 Howe Ave”

address were returned as undeliverable the record establishes

that Turner did not receive them, and the agency therefore

erred in relying on them.   Even if the record supported its

determination that notice was properly mailed, it refutes his

receipt of them.   See Alrefae, 471 F.3d at 359; Lopes I, 468

F.3d at 84.

    The agency also erred by analyzing whether the notices

sent to the “80 Spruce St.” address were reasonably sent,

rather than whether they were received. See Alrefae, 471 F.3d

at 359; Lopes I, 468 F.3d at 84.     Turner stated in a 2008

affidavit that he never lived at that address and that his

daughter’s mother lived there only a short time.    The record

does not indicate that anyone connected to Turner resided at

the “80 Spruce St” address in 1990 when the hearing notices

were mailed or indicate any other justification for the INS to

believe that the address was the then current address at which


                             -7-
Turner resided or the last address provided by Turner.     Cf.

Matter of Munoz-Santos, 20 I. & N. Dec. at 206-07 (relying on

the fact that notice was sent to the last address provided to

support finding that notice was properly served).

    Because the agency considered the reasonableness of the

mailing of hearing notices, rather than the fact of their

receipt, the denial of reopening must be remanded for further

consideration.   Upon remand, the agency will have to consider

whatever force can reasonably be given to the presumption of

receipt arising from mailing to the 80 Spruce St. address (the

only address from which a mailing of notices was not returned)

and consider the direct and circumstantial evidence of non-

receipt provided by Turner.

    For the foregoing reasons, the petition for review is

GRANTED and the case is REMANDED for further proceedings

consistent with this order.   As we have completed our review,

any pending motion for a stay of removal in this petition is

DISMISSED as moot.   Any pending request for oral argument in

this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




                              -8-
