                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-1356


ABDULATEEF SHOGUNLE,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



                              No. 08-1765


ABDULATEEF SHOGUNLE,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petitions for Review of Orders of the Board of Immigration
Appeals.


Argued:   May 12, 2009                      Decided:   July 8, 2009


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Petitions granted by unpublished per curiam opinion.
ARGUED: David Christopher Drake, JOHNSON & ASSOCIATES, PC,
Arlington, Virginia, for Petitioner.    Blair Timothy O’Connor,
UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration
Litigation, Washington, D.C., for Respondent. ON BRIEF: Randall
L. Johnson, JOHNSON & ASSOCIATES, PC, Arlington, Virginia, for
Petitioner. Gregory G. Katsas, Assistant Attorney General, John
C.   Cunningham,  Senior   Litigation  Counsel,   UNITED   STATES
DEPARTMENT   OF  JUSTICE,   Office  of  Immigration   Litigation,
Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     On December 4, 2001, Abdulateef Shogunle was admitted into

the United States as a non-immigrant visitor with privileges to

remain until March 3, 2002.           However, Shogunle did not depart at

the end of this period.         He subsequently married a U.S. citizen,

but on October 26, 2006, the U.S. Citizenship and Immigration

Services      (“USCIS”)   of    the    Department   of    Homeland      Security

(“DHS”) denied his application for adjustment of status based on

his marriage.      The same day, DHS personally served Shogunle with

a notice to appear in removal proceedings, and he acknowledged

service with his signature.            The notice instructed Shogunle to

appear in the Baltimore immigration court on January 3, 2007.

The address on the notice was that provided by Shogunle in his

application for adjustment of status.

     Shogunle     appeared     at   the   immigration    court    as   directed.

However, at that point, DHS had not filed the notice to appear

with the immigration court; therefore, the court did not have

jurisdiction over Shogunle’s case.             Shogunle was informed that

he would receive information about a future hearing.                   DHS filed

the notice to appear with the immigration court on January 18 or

26, 2007. *    On February 1, 2007, Shogunle moved.              However, prior


     *
       The notice bears two date stamps, and                     the   Board   of
Immigration Appeals relied on the latter date.



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to or immediately after his move, Shogunle notified DHS of his

new address and set up mail forwarding with the U.S. Postal

Service.       Nevertheless, on February 13, 2007, the immigration

court sent a notice to Shogunle’s previous address alerting him

to a hearing on April 11, 2007.                  Because the notice was sent to

his previous address and, for reasons unknown, was not forwarded

to his new address, Shogunle did not receive it.                           On April 11,

the immigration judge noted that Shogunle had failed to appear

at    the   hearing    and   issued    an        order        in    absentia    to       remove

Shogunle from the United States.                  The order was served by mail

to    Shogunle’s     original   address          and    was    forwarded       to    his    new

address.

       The immigration judge denied Shogunle’s motion to rescind

the    order   and    reopen    his   removal           proceedings,       and       the    BIA

dismissed Shogunle’s appeal on February 26, 2008.                          The BIA also

denied      Shogunle’s    motion      for        reconsideration,         and       Shogunle

petitioned     this    Court    to    review           both    decisions.           We     have

consolidated the two actions.



                                            I.

       “Deportation and asylum hearings . . . are subject to the

requirements of procedural due process.                            We review de novo a

claim that the procedures utilized in such hearings contravened

due process or the [Immigration and Nationality Act].”                               Rusu v.

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INS, 296 F.3d 316, 320 (4th Cir. 2002) (internal citations and

quotations        omitted).           Pursuant        to    8     U.S.C.          § 1229a(b)(5)(C)

(2006),      failure      to    appear      at    a     deportation            proceeding              shall

result in an order of removal that may be rescinded only if the

failure to appear was the result of “exceptional circumstances”

or    “the    alien       demonstrates        that         the    alien        did       not      receive

[proper]       notice.”          Shogunle         relies         on    the        second         part    of

§ 1229a(b)(5)(C),             failure       to    receive             proper       notice.               The

requisite         notice       procedures         are       set        forth        in       8     U.S.C.

§ 1229(a)(1) (2006).

       Neither        party     disputes         that      Shogunle          provided            his    new

address      to    DHS.        The    question        on    which          this    case        turns      is

whether Shogunle was also required to inform the immigration

court of his change of address.                       The notice to appear required

Shogunle to “notify the Immigration Court immediately by using

form   EOIR-33        whenever        you    change        your        address          or    telephone

number       during     the     course      of     this      proceeding.”                    (J.A.       119

(emphasis added).)              However, because DHS did not file the notice

with the immigration court prior to Shogunle’s original hearing,

the    court      did     not    have       jurisdiction              on    the     hearing            date.

8 C.F.R.          § 1003.14(a)          (2009)          (“Jurisdiction                  vests,          and

proceedings         before       an    Immigration           Judge          commence,            when      a

charging document is filed with the Immigration Court by the

Service.”).             Thus,        the     critical            question          is        whether      a

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“proceeding” had begun during which Shogunle would be required

to keep the court informed of any change of address.                              If not,

then his obligation would have been only to notify DHS of his

new address, which he did.

     Logically, Shogunle’s argument must carry the day.                                  The

notice    with    which     he    was    served       named    a    hearing     date,    and

Shogunle showed up to court on that hearing date.                           However, the

court did not have jurisdiction as of that date.                              Because the

immigration court did not yet have jurisdiction, it could not

order Shogunle to do anything.                     Indeed, it was still within the

discretion       of   DHS     whether        to      file     the    notice     with     the

immigration      court,     and   it     was       possible   that    the   court      might

never have jurisdiction.                Therefore, the logical entity with

which    to   lodge   a     change      of   address        would   be   DHS,    since    it

controlled whether the action would even proceed any further.

Granted, DHS did file the notice to appear with the immigration

court prior to Shogunle’s move.                     It is therefore arguable that

Shogunle was under the jurisdiction of the immigration court at

that point and thus under its change of address requirements.

However, Shogunle was unaware of this development, and we cannot

say that it was Shogunle’s burden to keep in constant contact

with the court to determine when, if ever, the court would have

jurisdiction.



                                               6
                                       II.

     On the facts with which we are presented, Shogunle properly

notified the government of a change in his address, and the

notice   of   the   second   hearing    that   was   sent   to   his   previous

address was defective.       We hereby grant Shogunle’s petitions for

review, reverse the BIA, and remand this case with instructions

to reopen Shogunle’s removal proceedings.

                                                            PETITIONS GRANTED




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