15-1866 Ruballos v. Sessions BIA Ferris, IJ A094 091 857 

### 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 TO A SUMMARY 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **10 th**  **day of March, two thousand seventeen.** 4 5 **PRESENT:** 6 **RICHARD C. WESLEY,** 7 **DENNY CHIN,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **MARCO RUBALLOS,** 13 Petitioner **,** 14 15 **v. 15-1866** 16 **NAC** 17 **JEFFERSON B.**  **SESSIONS, III,**  **UNITED** 18 **STATES ATTORNEY GENERAL,** 19 Respondent **. 1**  ***** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Bruno J. Bembi, Hempstead, N.Y. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 25 Assistant Attorney General; Erica B. 26 Miles, Senior Litigation Counsel; 27 Aric A. Anderson, Trial Attorney, 28

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jefferson B. Sessions, III, is automatically substituted for former A ttorney General Loretta E. Lynch.2 Office of Immigration Litigation, 1 United States Department of Justice, 2 Washington, D.C. 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review is 7 GRANTED in part and DENIED in part. 8 Petitioner Marco Ruballos, a native and citizen of El 9 Salvador, seeks review of a May 6, 2015, decision of the BIA 10 affirming a November 13, 2013, decision of an Immigration Judge 11 (“IJ”) denying Ruballos’s motion to rescind his in absentia 12 removal order. In re Marco T. Ruballos , No. A094 091 857 13 (B.I.A. May 6, 2015), aff’g No. A094 091 857 (Immig. Ct. N.Y. 14 City Nov. 13, 2013). We assume the parties’ familiarity with 15 the underlying facts and procedural history in this case. 16 Under the circumstances of this case, we have reviewed the 17 IJ’s decision as supplemented by the BIA. See Yan Chen v. 18 Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). We review the 19 denial of a motion to rescind an in absentia removal order under 20 the same abuse of discretion standard applicable to motions to 21

reopen. See Alrefae v. Chertoff , 471 F.3d 353, 357 (2d Cir. 22 2006). 23 243 “An order entered in a bsentia in deportation proceedings 1 may be rescinded only upon a motion to reopen filed . . . [a]t 2 any time if the alien demonstrates that he or she did not receive 3 notice . . . .” 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2); 8 U.S.C. 4 § 1229a(b)(5)(C)(ii). There is a receipt presumption, 5 however, for notices sent by regular mail, which “is weaker than 6 that accorded to notice sent by certified mail.” Matter of 7

M-R-A- , 24 I. & N. Dec. 665, 673 (B.I.A. 2008). “[W]hen an 8 Immigration Judge adjudicates a respondent’s motion to reopen 9 to rescind an in absentia order of removal based on a claim that 10 a Notice to Appear or Notice of Hearing sent by regular mail 11 to the most recent address provided was not received, all 12 relevant evidence submitted to overcome the weaker presumption 13 of delivery must be considered.” Id. at 673-74 (emphasis 14 added). Relevant factors include the following: “(1) the 15 respondent’s affidavit; (2) affidavits from family members or 16 other individuals who are knowledgeable about the facts 17 relevant to whether notice was received; (3) the respondent’s 18 actions upon learning of the in absentia order, and whether due 19 diligence was exercised in seeking to redress the situation ; 20 (4) any prior affirmative application for relief, indicating 21 that the respondent had an incentive to appear; (5) any prior 224 application for relief filed with the Immigration Court or any 1 prima facie evidence in the record or the respondent’s motion 2 of statutory eligibility for relief, indicating that the 3 respondent had an incentive to appear; (6) the respondent’s 4 previous attendance at Immigration Court hearings, if 5 applicable; and (7) any other circumstances or evidence 6 indicating possible nonreceipt of notice.” Id. at 674. 7 (emphasis added). Even if the presumption is rebutted, “aliens 8 who fail to provide a written up date of a change of address are 9 deemed to have constructively received notice” if they have been 10 notified of the change of address requirements and the 11 consequences of failing to appear. See Maghradze v. Gonzales , 12 462 F.3d 150, 154 (2d Cir. 2006). 13 We conclude that the IJ abused her discretion by 14 considering only one of the many required factors in determining 15 whether Ruballos had rebutted the receipt presumption attached 16 to his notice. See Matter of M-R-A- , 24 I. & N. Dec. at 674. 17 The IJ, relying on Iavorksi v. INS , 232 F.3d 124 (2d Cir. 2000), 18 denied Ruballos’s motion solely on diligence grounds; however, 19 Iavorksi concerns equitable tolling of the 90-day deadline for 20 motions to reopen based on ineffective assistance of counsel, 21 and Ruballos’s motion to rescind was not subject to any time 225 limitation, see 232 F.3d at 134; 8 U.S.C. § 1229a(b)(5)(C)(ii); 1 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2). Although diligence is 2 relevant to determining whether the receipt presumption has 3 been rebutted, it is only one of many factors that “must be 4 considered.” Matter of M-R-A- , 24 I. & N. Dec. at 674. 5 The BIA further erred by concluding that Ruballos had 6 constructive notice of his 1998 hearing because the hearing 7 notice was properly mailed to the Mahopac address provided in 8 his 1996 asylum application. We have approved of application 9 of the doctrine of constructive notice only when an alien has 10 previously been given notice of the change of address 11 requirements and the consequences of failing to appear. See 12 Maghradze , 462 F.3d at 153-54. Here, Ruballos was not notified 13 of the change of address requ irements and the consequences of 14 failing to appear; his 1996 asylum application contains no such 15 instructions or warnings, and nothing else in the record 16 suggests that they were provided prior to the mailing of the 17 notice. Therefore, the BIA’s supplementary ruling that 18 Ruballos had constructive notice of his hearing notice was also 19 an abuse of discretion. See id

. 20 Lastly, we decline to consider Ruballos’s unexhausted 21 argument that he was improperly ordered removed when he was a 226 Temporary Protected Status registrant and a member of the class 1 in American Baptist Churches v. Thornburgh , 760 F. Supp. 796 2 (N.D. Cal. 1991). See Lin Zhong v. U.S. Dep’t of Justice , 480 3 F.3d 104, 122 (2d Cir. 2007) (providing that judicially imposed 4 issue exhaustion is mandatory). 5 For the foregoing reasons, the petition for review is 6 GRANTED in part and DENIED in part, and the case is REMANDED 7 for further proceedings consistent with this order. As we have 8 completed our review, the stay of removal that the Court 9 previously granted in this petition is VACATED. Any pending 10 request for oral argument in this petition is DENIED in 11 accordance with Federal Rule of Appellate Procedure 34(a)(2), 12 and Second Circuit Local Rule 34.1(b). 13
FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15