Noorani v. Ashcroft

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 14, 2003
• Docket: 02-60668
• Status: Unpublished

Opinion

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.