10-688-ag

Francis v. Holder

BIA

Montante, IJ

A076 024 171

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

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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

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ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 23rd day of May, two thousand eleven.

PRESENT:

 JOHN M. WALKER, JR.,

PETER W. HALL,

DENNY CHIN,

 Circuit Judges. 

_______________________________________

IRVING FRANCIS,

Petitioner, 

 v. 10-688-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: Nita Dobroshi, The Law Offices of

Spar & Bernstein, P.C., New York,

New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Aviva L. Poczter, Senior

Litigation Counsel; Christopher P.
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McGreal, Trial Attorney, Office of

Immigration Litigation, Civil

Division, United States Department

of Justice, Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is GRANTED, in part, and DENIED, in part.

Petitioner Irving Francis, a native and citizen of

Trinidad, seeks review of a January 29, 2010, order of the

BIA affirming the September 8, 2008, decision of Immigration

Judge (“IJ”) Philip J. Montante, Jr. denying his motion to

rescind an in absentia removal order and reopen his

proceedings. In re Irving Francis, No. A076 024 171 (B.I.A.

Jan. 29, 2010), aff’g No. A076 024 171 (Immig. Ct. Buffalo

Sept. 8, 2008). We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

Under the circumstances of this case, we review both

the IJ’s and the BIA’s opinions “for the sake of

completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

2008) (internal quotations omitted). We review the agency’s

denial of motions to rescind or reopen for abuse of

discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

2005) (per curiam); Alrefae v. Chertoff, 471 F.3d 353, 357

(2d Cir. 2006).

The agency abused its discretion in denying Francis’s

motion to rescind as it failed to consider all of the

evidence in the record. An in absentia order of removal may

be rescinded if an alien demonstrates that he did not

receive notice of the hearing. 8 U.S.C. § 1229a(b)(5)(C). 

In such cases, “the central issue . . . is whether the alien

actually received the notice,” and not “whether the notice

was properly mailed.” Alrefae, 471 F.3d at 359 (quotation

omitted). While the agency may presume that mail sent to an

alien’s address is received, the agency has an obligation to

“consider all relevant evidence, including circumstantial

evidence, offered to rebut th[e] presumption.” Id. at

359-60. 
3

Here, the agency failed to consider that when the

immigration court mailed the in absentia order to the

address on Francis’s Notice to Appear, the letter was

returned because its recipient did not live at the address. 

Additionally, the IJ abused his discretion by refusing to

consider Francis’s divorce decree–which was submitted as

evidence that at the relevant time he lived in Brooklyn—on

the ground that the removal of a staple to permit the

document to be photocopied, undermined the evidentiary value

of the decree. The IJ provided no analysis or legal basis

for this conclusion. See Kaur, 413 F.3d at 233-34

(explaining that an abuse of discretion may be found where

the agency’s decision “provides no rational explanation . .

. [and] is devoid of any reasoning . . .”). Accordingly,

because it did not consider all of Francis’s evidence, the

agency abused its discretion in concluding that Francis had

not rebutted the presumption of receipt. See Alrefae, 471

F.3d at 359-60 (concluding that the agency abused its

discretion when it did not address all of the evidence

submitted to rebut the presumption of receipt of notice). 

We therefore remand to the agency to consider all of the

evidence.

Having found an abuse of discretion in the agency’s

fact-finding process, we do not address whether Francis was

obligated to notify the immigration court that he resided at

a different address from that on his Notice to Appear

because any such obligation did not form a separate basis

for the agency’s decision. Having concluded that the agency

abused its discretion in evaluating whether Francis received

notice, we additionally vacate the agency’s decision insofar

as it dismissed Francis’s motion for lack of due diligence.

The agency may thus reconsider that discretionary issue in

light of its reconsideration of the merits of Francis’s

motion. Accordingly, we vacate the agency’s denial of

Francis’s motion to rescind his in absentia removal order

for lack of notice and remand for reconsideration. We

express no opinion on the ultimate outcome of those

proceedings.

We deny the petition for review in all other respects. 

Francis’s due process claim fails because he has failed to

demonstrate prejudice; the record demonstrates that the BIA

accepted Francis’s counsel’s account of what happened at the
4

hearing on appeal. See Garcia-Villeda v. Mukasey, 531 F.3d

141, 149 (2d Cir. 2008) (an alien alleging a due process

violation must demonstrate “cognizable prejudice”).

Moreover, the agency did not abuse its discretion in

denying rescission under 8 U.S.C. § 1229a(b)(5)(C)(i) or

reopening under 8 U.S.C. § 1229a(c)(7) because the motion

was untimely. The agency evaluated and reasonably

discounted Francis’s evidence that he relied on an attorney

to respond to his Notice to Appear. Francis’s I-130

application indicated that he was represented by a different

attorney. Francis’s complaint to the bar association did

not confirm the existence of his attorney; the association

had no record of the attorney, and Francis’s purported

receipts from his attorney did not establish that the

attorney agreed to assist him by responding to the Notice to

Appear. Accordingly, the agency’s denial of equitable

tolling with respect to the motion to reopen, or rescission

based on equitable circumstances, was not an abuse of

discretion. See Kaur, 413 F.3d at 233.

For the foregoing reasons, the petition for review is

GRANTED, in part and DENIED, in part, the order of removal

is VACATED, and the case is REMANDED to the BIA for

proceedings consistent with this decision. Any pending

request for oral argument in this petition is DENIED in

accordance with Federal Rule of Appellate Procedure

34(a)(2), and Second Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk