23-6727 Vaghari v. Bondi BIA Dodd, IJ A203 677 457/458/459
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 25th day of September, two thousand 4 twenty-five. 5 6 PRESENT: 7 GERARD E. LYNCH, 8 DENNY CHIN, 9 MARIA ARAÚJO KAHN, 10 Circuit Judges. 11 _____________________________________ 12 13 BAKABHAI JOITABHAI VAGHARI, 14 KETAN KUMAR VAGHARI, 15 MADHUBEN VAGHARI, 16 Petitioners, 17 18 v. 23-6727 19 NAC 20 PAMELA BONDI, UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 1 FOR PETITIONERS: Jatinder S. Grewal, Esq., Pannun The Firm, 2 P.C., East Elmhurst, NY. 3 4 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 5 Attorney General; Keith I. McManus, 6 Assistant Director; Leslie McKay, Senior 7 Litigation Counsel, Office of Immigration 8 Litigation, United States Department of 9 Justice, Washington, DC.
10 UPON DUE CONSIDERATION of this petition for review of a Board of
11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
12 DECREED that the petition for review is GRANTED, and the matter is
13 REMANDED.
14 Petitioners Bakabhai Joitabhai Vaghari, Madhuben Vaghari, and their child,
15 natives and citizens of India, seek review of a June 14, 2023, decision of the BIA
16 dismissing their appeal of an April 6, 2021, decision of an Immigration Judge (“IJ”)
17 denying their motion to reconsider the denial of their motion to rescind their in
18 absentia removal orders. In re Bakabhai Joitabhai Vaghari, et al., Nos. A 203 677
19 457/458/459 (B.I.A. June 14, 2023), aff’g Nos. A 203 677 457/458/459 (Immig. Ct. N.Y.
20 City Apr. 6, 2021). We assume the parties’ familiarity with the underlying facts
21 and procedural history.
2 1 We have reviewed the BIA’s decision and the portions of the IJ’s decisions
2 that the BIA relied on. See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528
3 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005).
4 We review the agency’s decision for abuse of discretion. See Alrefae v. Chertoff,
5 471 F.3d 353, 357 (2d Cir. 2006). “An abuse of discretion may be found . . . where
6 the Board’s decision provides no rational explanation, inexplicably departs from
7 established policies, is devoid of any reasoning, or contains only summary or
8 conclusory statements; that is to say, where the Board has acted in an arbitrary or
9 capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Just., 265 F.3d 83, 93 (2d Cir.
10 2001) (citations omitted). We find an abuse of discretion here because the agency
11 misstated the dispositive issue and failed to consider relevant factors and
12 evidence.
13 “Any alien who, after written notice . . . , does not attend a [removal]
14 proceeding . . . shall be ordered removed in absentia if the Service establishes by
15 clear, unequivocal, and convincing evidence that the written notice was so
16 provided and that the alien is removable . . . .” 8 U.S.C. § 1229a(b)(5)(A). “Such
17 an order may be rescinded,” as relevant here, “upon a motion to reopen filed at
18 any time if the alien demonstrates that the alien did not receive notice in
3 1 accordance with paragraph (1) or (2) of section 1229(a).” Id. § 1229a(b)(5)(C)(ii);
2 see also 8 C.F.R. § 1003.23(b)(4)(ii). “[W]hen considering the motion to reopen, the
3 central issue no longer is whether the notice was properly mailed (as it is for the
4 purpose of initially entering the in absentia order), but rather whether the alien
5 actually received the notice.” Alrefae, 471 F.3d at 359 (quotation marks omitted)
6 (emphasis in original).
7 The agency did not err in presuming that Vaghari received his notice of
8 hearing because it was mailed to the address of record in the immigration court.
9 “[I]n the context of regular mail, a presumption of receipt is proper so long as the
10 record establishes that the notice was accurately addressed and mailed in
11 accordance with normal office procedures.” Lopes v. Gonzales, 468 F.3d 81, 85 (2d
12 Cir. 2006). This presumption is not overcome by Vaghari’s assertion that he was
13 unaware that he had to update his address with the immigration court because the
14 information was provided in Hindi, rather than his native Gujarati. The
15 translator noted that Vaghari’s Hindi was perfect, and there is no requirement that
16 a notice to appear “be provided in any particular language.” Id.
17 However, the agency erred by not considering whether Vaghari’s affidavit
18 and other evidence rebutted the presumption of receipt. “[T]he BIA must
4 1 consider all of the petitioner’s evidence (circumstantial or otherwise) in a practical
2 fashion, guided by common sense, to determine whether the slight presumption
3 of receipt of regular mail has more probably than not been overcome.” Silva-
4 Carvalho Lopes v. Mukasey, 517 F.3d 156, 160 (2d Cir. 2008). The evidence to be
5 considered includes, but is not limited to “(1) the [movant]’s affidavit;
6 (2) affidavits from family members or other individuals who are knowledgeable
7 about the facts relevant to whether notice was received; (3) the [movant]’s actions
8 upon learning of the in absentia order, and whether due diligence was exercised
9 in seeking to redress the situation; (4) any prior affirmative application for relief,
10 indicating that the [movant] had an incentive to appear; (5) any prior application
11 for relief filed with the Immigration Court or any prima facie evidence in the
12 record or the [movant’s] motion of statutory eligibility for relief, indicating that
13 the [movant] had an incentive to appear; (6) the [movant’s] previous attendance at
14 Immigration Court hearings, if applicable; and (7) any other circumstances or
15 evidence indicating possible nonreceipt of notice.” Matter of M–R–A–, 24 I. & N.
16 Dec. 665, 674 (B.I.A. 2008).
17 The IJ’s decision identifies the issue as whether “the Court properly served
18 [Vaghari] with a notice of the hearing” and reasons that because Vaghari was
5 1 notified through his notice to appear of his obligation to update the court with his
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23-6727 Vaghari v. Bondi BIA Dodd, IJ A203 677 457/458/459
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 25th day of September, two thousand 4 twenty-five. 5 6 PRESENT: 7 GERARD E. LYNCH, 8 DENNY CHIN, 9 MARIA ARAÚJO KAHN, 10 Circuit Judges. 11 _____________________________________ 12 13 BAKABHAI JOITABHAI VAGHARI, 14 KETAN KUMAR VAGHARI, 15 MADHUBEN VAGHARI, 16 Petitioners, 17 18 v. 23-6727 19 NAC 20 PAMELA BONDI, UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 1 FOR PETITIONERS: Jatinder S. Grewal, Esq., Pannun The Firm, 2 P.C., East Elmhurst, NY. 3 4 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 5 Attorney General; Keith I. McManus, 6 Assistant Director; Leslie McKay, Senior 7 Litigation Counsel, Office of Immigration 8 Litigation, United States Department of 9 Justice, Washington, DC.
10 UPON DUE CONSIDERATION of this petition for review of a Board of
11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
12 DECREED that the petition for review is GRANTED, and the matter is
13 REMANDED.
14 Petitioners Bakabhai Joitabhai Vaghari, Madhuben Vaghari, and their child,
15 natives and citizens of India, seek review of a June 14, 2023, decision of the BIA
16 dismissing their appeal of an April 6, 2021, decision of an Immigration Judge (“IJ”)
17 denying their motion to reconsider the denial of their motion to rescind their in
18 absentia removal orders. In re Bakabhai Joitabhai Vaghari, et al., Nos. A 203 677
19 457/458/459 (B.I.A. June 14, 2023), aff’g Nos. A 203 677 457/458/459 (Immig. Ct. N.Y.
20 City Apr. 6, 2021). We assume the parties’ familiarity with the underlying facts
21 and procedural history.
2 1 We have reviewed the BIA’s decision and the portions of the IJ’s decisions
2 that the BIA relied on. See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528
3 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005).
4 We review the agency’s decision for abuse of discretion. See Alrefae v. Chertoff,
5 471 F.3d 353, 357 (2d Cir. 2006). “An abuse of discretion may be found . . . where
6 the Board’s decision provides no rational explanation, inexplicably departs from
7 established policies, is devoid of any reasoning, or contains only summary or
8 conclusory statements; that is to say, where the Board has acted in an arbitrary or
9 capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Just., 265 F.3d 83, 93 (2d Cir.
10 2001) (citations omitted). We find an abuse of discretion here because the agency
11 misstated the dispositive issue and failed to consider relevant factors and
12 evidence.
13 “Any alien who, after written notice . . . , does not attend a [removal]
14 proceeding . . . shall be ordered removed in absentia if the Service establishes by
15 clear, unequivocal, and convincing evidence that the written notice was so
16 provided and that the alien is removable . . . .” 8 U.S.C. § 1229a(b)(5)(A). “Such
17 an order may be rescinded,” as relevant here, “upon a motion to reopen filed at
18 any time if the alien demonstrates that the alien did not receive notice in
3 1 accordance with paragraph (1) or (2) of section 1229(a).” Id. § 1229a(b)(5)(C)(ii);
2 see also 8 C.F.R. § 1003.23(b)(4)(ii). “[W]hen considering the motion to reopen, the
3 central issue no longer is whether the notice was properly mailed (as it is for the
4 purpose of initially entering the in absentia order), but rather whether the alien
5 actually received the notice.” Alrefae, 471 F.3d at 359 (quotation marks omitted)
6 (emphasis in original).
7 The agency did not err in presuming that Vaghari received his notice of
8 hearing because it was mailed to the address of record in the immigration court.
9 “[I]n the context of regular mail, a presumption of receipt is proper so long as the
10 record establishes that the notice was accurately addressed and mailed in
11 accordance with normal office procedures.” Lopes v. Gonzales, 468 F.3d 81, 85 (2d
12 Cir. 2006). This presumption is not overcome by Vaghari’s assertion that he was
13 unaware that he had to update his address with the immigration court because the
14 information was provided in Hindi, rather than his native Gujarati. The
15 translator noted that Vaghari’s Hindi was perfect, and there is no requirement that
16 a notice to appear “be provided in any particular language.” Id.
17 However, the agency erred by not considering whether Vaghari’s affidavit
18 and other evidence rebutted the presumption of receipt. “[T]he BIA must
4 1 consider all of the petitioner’s evidence (circumstantial or otherwise) in a practical
2 fashion, guided by common sense, to determine whether the slight presumption
3 of receipt of regular mail has more probably than not been overcome.” Silva-
4 Carvalho Lopes v. Mukasey, 517 F.3d 156, 160 (2d Cir. 2008). The evidence to be
5 considered includes, but is not limited to “(1) the [movant]’s affidavit;
6 (2) affidavits from family members or other individuals who are knowledgeable
7 about the facts relevant to whether notice was received; (3) the [movant]’s actions
8 upon learning of the in absentia order, and whether due diligence was exercised
9 in seeking to redress the situation; (4) any prior affirmative application for relief,
10 indicating that the [movant] had an incentive to appear; (5) any prior application
11 for relief filed with the Immigration Court or any prima facie evidence in the
12 record or the [movant’s] motion of statutory eligibility for relief, indicating that
13 the [movant] had an incentive to appear; (6) the [movant’s] previous attendance at
14 Immigration Court hearings, if applicable; and (7) any other circumstances or
15 evidence indicating possible nonreceipt of notice.” Matter of M–R–A–, 24 I. & N.
16 Dec. 665, 674 (B.I.A. 2008).
17 The IJ’s decision identifies the issue as whether “the Court properly served
18 [Vaghari] with a notice of the hearing” and reasons that because Vaghari was
5 1 notified through his notice to appear of his obligation to update the court with his
2 address, reopening was not warranted. The IJ thus misidentified the issue. The
3 “central issue” in considering a motion to rescind an in absentia removal order is
4 “whether the alien actually received the notice.” Alrefae, 471 F.3d at 359. The IJ
5 then failed to discuss the relevant issue or evidence. The BIA’s decision did not
6 cure these errors. While it identified the correct inquiry as whether Vaghari
7 received the notice, and cited Matter of M–R–A– for the factors to consider in
8 determining if a movant established nonreceipt, it did not address Vaghari’s
9 evidence or explain why it did not rebut the presumption of delivery. Id. at 360
10 (finding that “IJ erred in rejecting [the] claim of nonreceipt by failing to explain
11 why [the movant’s affidavit] had not rebutted the presumption of receipt”).
12 Accordingly, we remand for further consideration of that evidence, including
13 Vaghari’s claims that he promptly informed Immigration and Customs
14 Enforcement of his address change at a check-in and had a friend check the status
15 of his case, and the evidence that he attended all check-ins and promptly hired an
16 attorney to move to reopen once he knew a removal order had been issued. See
17 Lopes, 468 F.3d at 86 (remanding where agency failed to consider that petitioner
18 disclosed the removal order when applying to adjust status, had a pending
6 1 application for an immigration benefit, and notified the INS of a change in
2 address).
3 For the foregoing reasons, the petition for review is GRANTED and the
4 matter is REMANDED for further consideration. All pending motions and
5 applications are DENIED and stays VACATED.
6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court