    18-51
    Singh v. Barr
                                                                                  BIA
                                                                               Hom, IJ
                                                                          A205 071 934
                         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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 22nd day of January, two thousand twenty.

    PRESENT:
             JOHN M. WALKER, JR.,
             DEBRA ANN LIVINGSTON,
             RICHARD J. SULLIVAN,
                  Circuit Judges.
    _____________________________________

    GURPELLT SINGH, AKA GURPREET
    SINGH,
             Petitioner,

                    v.                                           18-51
                                                                 NAC
    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                   Amy N. Gell, New York, NY.

    FOR RESPONDENT:                   Joseph H. Hunt, Assistant
                                      Attorney General; Mary Jane
                                      Candaux, Assistant Director;
                                      Matthew Connelly, Trial Attorney,
                                      Office of Immigration Litigation,
                                      United States Department of
                                      Justice, Washington, DC.
    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Gurpellt Singh, a native and citizen of India,

seeks review of a December 13, 2017 decision of the BIA

affirming a June 28, 2017 decision of an Immigration Judge

(“IJ”)    denying   Singh’s   motion   to   reopen   proceedings   and

reissue the IJ’s decision denying Singh’s application for

asylum,    withholding   of    removal,     and   relief   under   the

Convention Against Torture (“CAT”).         In re Singh, No. A 205

071 934 (B.I.A. Dec. 13, 2017), aff’g No. A 205 071 934

(Immig. Ct. N.Y. City June 28, 2017).        We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    We have reviewed both the IJ’s and the BIA’s opinions.

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d

Cir. 2006).     We review the denial of a motion to reopen and

reissue for abuse of discretion.       See Ping Chen v. U.S. Att’y

Gen., 502 F.3d 73, 75 (2d Cir. 2007).

    Where, as here, an alien had notice of the proceedings,
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the agency does not abuse its discretion in denying a motion

to reissue if the agency properly served the order, regardless

of whether the alien actually received it.     See id. at 76–77

(“Once the BIA has performed its duty of serving the order,

the time for appeal and motions to reopen begins to run, even

if the order miscarries in the mail or the alien does not

receive it for some other reason that is not the BIA’s

fault.”); see also Xue Hui Lin v. Holder, 380 F. App’x 28, 30

(2d Cir. 2010) (applying the same standard to IJ orders).    An

IJ’s decision “shall be served on the parties by first class

mail to the most recent address contained in the Record of

Proceeding or by personal service.”      8 C.F.R. § 1003.37(a).

Service on a party also may be accomplished by service on his

or her attorney.    Id. § 1292.5(a).

    Singh advances three reasons that the agency may have

abused its discretion in declining to reopen and reissue the

IJ’s decision.     Each is unavailing.   First, he argues that

the decision was not properly addressed, because, in addition

to the correct firm name and mailing address, it included the

name of attorney Veerat Kalaria.    However, “the record shows

that []he did not present . . . [this] argument[] to the BIA,
                               3
so the BIA can hardly be faulted for failing to address [it].”

Ping Chen, 502 F.3d at 77.        Singh asserted in his BIA appeal

that he still had not received the IJ decision (which would

have notified him it was addressed to Kalaria) because “the

Judge’s clerk is away.”         Certified Administrative Record at

13.    This was the same claim he made more than seven weeks

earlier in the motion to reopen.           In any event, Kalaria is

an associate at Gell & Gell, and Singh does not argue that

Kalaria was not involved in his case, nor does he argue that

the letter was misdirected within the law firm.

      Second,   Singh   notes    that   the   decision   cover   letter

identified him as “Gurpellt” Singh without further stating

that he is also known as “Gurpreet.”              But his name was not

part of the address.     He does not argue that the firm received

the letter but misunderstood its import because it lacked the

alternate spelling of his name.           Nor would such an argument

be    reasonable,   given   that    the    name    Gurpellt   was   used

throughout the agency proceedings and the letter included

Singh’s alien registration number.

      Third, Singh argues that his strong interest in pursuing

his case, coupled with his prompt motion to reopen upon
                                   4
learning of the IJ’s decision, suggests that his attorney

must not have received it.   But he did not present any direct

evidence, such as an affidavit from his law firm, asserting

that the decision was not received.      And while his interest

in pursuing the case may be evidence that the decision may

not have been mailed properly, it is circumstantial, and the

agency “may reasonably accord less weight to . . . [evidence]

of non-receipt than to its own records establishing that the

[decision] was in fact mailed.”      Ping Chen, 502 F.3d at 77.

    Accordingly, because the agency did not err in applying

a presumption or declining to credit counsel’s uncorroborated

assertions of non-receipt, it did not abuse its discretion by

denying the motion to reissue.      See id. at 75–77.   We do not

reach Singh’s arguments regarding his eligibility for relief

from removal because he failed to exhaust those claims by

timely appealing to the BIA.       See 8 U.S.C. § 1252(d)(1) (“A

court may review a final order of removal only if . . . the

alien has exhausted all administrative remedies available to

the alien as of right . . . .”); Poole v. Mukasey, 522 F.3d

259, 263 (2d Cir. 2008) (“[T]he INA’s exhaustion requirement

constitutes a clear jurisdictional bar, and admits of no
                               5
exceptions.”     (internal   quotation   marks   and     citation

omitted)).

    For the foregoing reasons, the petition for review is

DENIED.   All pending motions and applications are DENIED and

stays VACATED.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe,
                              Clerk of Court




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