Noorani v. Ashcroft

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should not be published and is not precedent except under the limited circumstances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
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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.
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