Bosquet v. Holder , 346 F. App'x 635 ( 2009 )

SUMMARY ORDER

Petitioner Joseph Nick Bosquet, pro se, a native and citizen of Haiti, seeks review of the May 30, 2008 order of the BIA denying his motion to reconsider as untimely filed. We assume the parties’ familiarity with the underlying facts and the procedural history of the case.

This Court previously dismissed as untimely Bosquet’s petition for review of the January 18, 2008 order of the BIA denying his motion to reopen his removal proceedings. Accordingly, we review only the denial of reconsideration of that order.

This Court reviews the BIA’s denial of a motion to reconsider for abuse of discretion. Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006) (per curiam). Motions to reconsider must be filed •within thirty days of the date on which the BIA decision is mailed. 8 C.F.R. § 1003.2(b)(2). However, filing periods may be tolled based on equitable considerations if the alien shows due diligence during the period sought to be tolled. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008); Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam).

It is undisputed that Petitioner did not file his motion to reconsider within thirty days of the BIA’s January 18, 2008 order. However, the Government concedes that there is evidence in the record indicating that Bosquet did not receive notice of the order until March 2008, due to an incorrect or insufficient address on the envelope in which the order was likely mailed to him. The record indicates that Petitioner filed his motion to reconsider within thirty days of his alleged receipt of the January 18, 2008 order. Therefore, on the recommendation of the Government, we remand this matter to the BIA to consider in the first instance whether the time limitation on motions to reconsider should be equitably tolled.

For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for further proceedings consistent with this order. As we have completed our review, we hereby ORDER a stay of removal pending the issuance of a new decision by the BIA. 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(b).