09-3715-ag
Ahmed v. Holder
                                                                                 BIA
                                                                            Straus, IJ
                                                                        A073 040 496
                   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 23 rd day of September, two thousand ten.

PRESENT:
         DENNIS JACOBS,
              Chief Judge,
         JON O. NEWMAN,
         RICHARD C. WESLEY,
              Circuit Judges.
______________________________________

FOISAL AHMED, also known as KAMRUL
AHSAN,
         Petitioner,
                                                        09-3715-ag
                  v.                                    NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
______________________________________
FOR PETITIONER:                Justin Conlon, North Haven, Conn.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Ethan B. Kanter, Senior Litigation
                               Counsel;    Paul    F.    Stone,   Trial
                               Attorney,    Office    of    Immigration
                               Litigation, United States Department
                              of Justice, Washington, D.C.
            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.

1           Petitioner       Foisal     Ahmed,           a    native    and    citizen      of

2    Bangladesh, seeks review of an August 4, 2009, order of the

3    BIA    affirming       Immigration        Judge          (“IJ”)    Michael     Straus’s

4    January 8, 2009, denial of his motion to reopen.                          In re Foisal

5    Ahmed, No. A073 040 496 (B.I.A. Aug. 4, 2009); aff’g No. A073

6    040 496 (Immig. Ct. Hartford, CT Jan. 8, 2009).                          We assume the

7    parties’ familiarity with the underlying facts and procedural

8    history of the case.

9           We   review      the    denial    of     a       motion    to   rescind    an   in

10   absentia removal order under the same standard applicable to

11   motions to reopen.            See Alrefae v. Chertoff, 471 F.3d 353, 357

12   (2d Cir. 2006).          We review the BIA’s denial of a motion to

13   reopen for abuse of discretion, mindful of the Supreme Court’s

14   admonition       that    such     motions       are       “disfavored.”          Ali   v.

15   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.

16   Doherty, 502 U.S. 314, 322-23 (1992)).

17          An immigration judge may proceed with removal proceedings

18   in    absentia    if    an    alien     fails       to    appear   for    a   scheduled

                                               -2-
1    hearing after proper written notice of the hearing is sent to

2    the     alien    at   his     most    recent    address.      See    8     U.S.C.

3    § 1229a(b)(5)(A).           Under the version of the Immigration and

4    Nationality Act in force at the time of Ahmed’s deportation

5    hearing,    the    immigration       court   was   required    to    serve    his

6    hearing notice by certified mail.See 8 U.S.C. § 1252b(a)(2)(A)

7    (repealed 1997); see also Song Jin Wu v. INS, 436 F.3d 157,

8    162 (2d Cir. 2006).           In Matter of Grijalva, 24 I. & N. Dec.

9    27, 37 (BIA 1995), the BIA held that “where service of a

10   notice of a deportation proceeding is sent by certified mail

11   through the United States Postal Service and there is proof of

12   attempted       delivery    and   notification     of   certified        mail,   a

13   strong presumption of effective service arises.”                    This strong

14   presumption may be rebutted “only by substantial and probative

15   evidence such as documentary evidence from the Postal Service,

16   third     party       affidavits,       or     other    similar          evidence

17   demonstrating that there was improper delivery.”                      See Ping

18   Chen v. U.S. Att’y Gen., 502 F.3d 73, 76 n.1 (2d Cir. 2007)

19   (quoting Matter of Grijalva, 24 I. & N. Dec. at 37); see also

20   Fuentes-Argueta v. INS, 101 F.3d 867, 870 (2d Cir. 1996).

21         Here, as both the IJ and BIA reasonably found, and Ahmed

22   acknowledges, the letters notifying him of his deportation



                                            -3-
1    hearing were sent to his home address via certified mail and

2    signed for by a responsible adult.              Therefore, because the

3    notice was properly delivered, the BIA did not abuse its

4    discretion in finding that Ahmed failed to rebut the “strong

5    presumption”      of   receipt     applicable   to    notices   served    by

6    certified mail.        See Ping Chen, 502 F.3d at 76 n.1; see also

7    Fuentes-Argueta, 101 F.3d at 870; In re M-D-, 23 I. & N. Dec.

8    540, 547 (BIA 2002) (holding that, when a hearing notice is

9    delivered by certified mail but “does not reach the alien

10   through    some    failure    in    the    internal    workings   of     the

11   household, the alien can be charged with receiving proper

12   notice.”).

13       Contrary to Ahmed’s argument, the BIA was not required to

14   consider his circumstantial and corroborative evidence of non-

15   receipt because the notices were sent by certified, rather

16   than regular, mail.       See Lopes v. Gonzales, 468 F.3d 81, 85-86

17   (2d Cir.2006) (per curiam) (holding that “on a motion to

18   reopen, the BIA must consider all relevant evidence, including

19   circumstantial evidence, offered to rebut” the “presumption of

20   receipt to a notice sent by regular mail”); see also Alrefae,

21   471 F.3d at 360; In re M-R-A-, 24 I. & N. Dec. 665, 674 (BIA

22   2008).    Furthermore, the BIA did not violate Ahmed’s right to



                                          -4-
1    due process, as we have held that it is “within the bounds of

2    due process to establish a presumption of adequate notice”

3    when “there is evidence that attempts were made to deliver the

4    petitioner’s notice by certified mail.”   See Fuentes-Argueta,

5    101 F.3d at 872.   Because Ahmed was sent proper notice of his

6    deportation hearing, we need not address the BIA’s alternate

7    finding that it would deny Ahmed’s motion as a matter of

8    discretion because he failed to exercise due diligence in

9    seeking reopening.

10       For the foregoing reasons, the petition for review is

11   DENIED.   As we have completed our review, any pending motion

12   for a stay of removal in this petition is DISMISSED as moot.

13   Any pending request for oral argument in this petition is

14   DENIED in accordance with Federal Rule of Appellate Procedure

15   34(a)(2), and Second Circuit Local Rule 34.1(b).

16                                FOR THE COURT:
17                                Catherine O’Hagan Wolfe, Clerk




                                   -5-
