Noorani v. Ashcroft ( 2003 )


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  •                                                                          United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    April 14, 2003
    FOR THE FIFTH CIRCUIT                        Charles R. Fulbruge III
    Clerk
    No. 02-60668
    Summary Calendar
    AMIN NOORANI,
    Petitioner,
    versus
    JOHN ASHCROFT, UNITED STATES
    ATTORNEY GENERAL,
    Respondent.
    Petition for Review of an Order of the
    Board of Immigration Appeals
    (BIA No. A29 818 728 )
    _______________________________________________________
    Before REAVLEY, SMITH and STEWART, Circuit Judges.
    PER CURIAM:*
    Amin Noorani, a native and citizen of India, petitions for review of a final order of
    deportation. He contends the Immigration Judge (IJ) erred by denying his application for
    *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
    should not be published and is not precedent except under the limited circumstances
    set forth in 5TH CIR. R. 47.5.4.
    adjustment of status pursuant to 
    8 U.S.C. § 1255
    (a) because the IJ incorrectly determined
    that he was likely to become a public charge. See 
    8 U.S.C. § 1182
    (a)(4)(C). We do not
    reach that issue because the Board of Immigration Appeals (BIA) abused its discretion by
    failing to rule on Noorani’s motion to supplement the record with additional evidence.
    Accordingly, we reverse and remand to the BIA for proceedings consistent with this
    opinion.
    1.    Noorani’s motion was entitled a “Motion to Supplement the Record.” The motion
    asked the BIA to consider Noorani’s previously unavailable 1999 tax return when
    reviewing the IJ’s decision to exclude Noorani on the ground that he is likely to
    become a public charge. Thus, it was clearly a motion to reopen the proceedings
    for the introduction of material, previously unavailable evidence. 
    8 C.F.R. § 3.2
    (c)(1). Such motions filed during the pendency of an appeal to the BIA are
    treated as motions to remand. 
    Id.
     § 3.2(c)(4). As this regulation provides that the
    BIA may rule on a motion to remand with respect to its content and not its title, we
    are not troubled by Noorani calling his motion a “Motion to Supplement the
    Record.”
    2.    In any event, the BIA did not decline to rule on Noorani’s motion on the basis that
    it did not comport with formal requirements. Instead, the BIA adopted the opinion
    of the IJ without ruling on the motion at all. We will not assume the BIA denied
    the motion on formal grounds where it dispensed altogether with the formality of
    issuing a ruling. See Ubau-Marenco v. INS, 
    67 F.3d 750
    , 757-58 n.9 (9th
    2
    Cir.1995), overruled on other grounds by Fisher v. INS, 
    79 F.3d 955
    , 963 (9th
    Cir.1996) (en banc) (holding that the Immigration and Naturalization Act does not
    allow courts to take judicial notice of facts not in the administrative record).
    3.   We review the BIA’s denial of a motion to reopen for abuse of discretion. See
    Osuchukwu v. INS, 
    744 F.2d 1136
    , 1141 (5th Cir. 1984). “The Board . . . has no
    duty to write an exegesis on every contention. What is required is merely that it
    consider the issues raised, and announce its decision in terms sufficient to enable a
    reviewing court to perceive that it has heard and thought and not merely reacted.”
    
    Id. at 1142-43
    . In the present case, the record does not indicate that the BIA
    considered the motion at all, and it certainly did not announce its decisions in
    terms sufficient to enable a reviewing court to evaluate it.
    4.   Thus, the BIA abused its discretion by failing to rule on Noorani’s motion to
    supplement the record, which should have been treated as a motion to remand. 
    8 C.F.R. § 3.2
    (c)(4). Accordingly, we remand the case to the BIA to allow that
    agency to evaluate Noorani’s motion. In so doing, we express no opinion on the
    merits of the petition.
    5.   We do note that if the 1999 tax return with required attachments should satisfy the
    affidavit of support income requirements, it would be a serious mistake to deport
    the only means of support for Noorani’s wife and three children.
    VACATED and REMANDED.
    3