Ahmed v. Holder ( 2010 )

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
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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
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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
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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
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