Singh v. Mukasey
Opinion of the Court
SUMMARY ORDER
Gurpreet Singh, a native and citizen of India, seeks review of a June 25, 2007 order of the BIA, denying his motion to reopen his removal proceedings. In re Gurpreet Singh, No. A76-085-366 (B.I.A. June 25, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
This Court reviews the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An abuse of discretion may be found where the BIA’s decision “ ‘provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.’ ” Id. at 233-34 (quoting Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001)).
An alien may be ordered removed in absentia if he fails to appear at a scheduled hearing and the Government provides clear, unequivocal, and convincing evidence that the alien is removable and received written notice of the hearing. 8 U.S.C. § 1229a(b)(5)(A). The regulations provide that an alien wishing to file a motion to reopen removal proceedings in order to rescind an IJ’s in absentia order of removal, must do so within 180 days after the date of the order of removal, and provide evidence that his failure to appear was caused by “exceptional circumstances” beyond his control. 8 C.F.R. § 1003.23(b)(4)(ii). An order entered in absentia may also be rescinded at any time if the alien demonstrates that he did not receive notice of the hearing. Id. Mailing notice to either the alien or the alien’s counsel of record satisfies the notice requirement and creates a presumption of receipt. See Bhanot v. Chertoff, 474 F.3d 71, 73 (2d Cir. 2007) (citing Lopes v. Gonzales, 468 F.3d 81, 85 (2d Cir. 2006)); Song Jin Wu v. INS, 436 F.3d 157, 162 (2d Cir. 2006). However, the IJ must consider “all relevant evidence, including circumstantial evidence, offered to rebut th[e] presumption.” Alrefae v. Chertoff, 471 F.3d 353, 359 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, petitioner’s pending motion for a stay of removal in this petition is DISMISSED as moot.
. Our finding that the BIA did not err in concluding that Singh had failed to demonstrate ineffective assistance is dispositive of his claim that his prior attorney’s ineffective assistance constituted a due process violation.
Reference
- Full Case Name
- Gurpreet SINGH v. Michael B. MUKASEY, United States Attorney General
- Status
- Published