Singh v. Gonzales, (2nd Cir. 2007)

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04-2177-ag

S i n g h v. Gonzales

BIA

A 7 2 473 982

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

A F T E R JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND

F E D E R A L RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

C I T E S A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

M U S T EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)."

U N L E S S THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

W I T H O U T PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE

P A R T Y CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

W I T H THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE

A V A I L A B I L I T Y OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT

D A T A B A S E AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

A t a stated term of the United States Court of Appeals

f o r the Second Circuit, held at the Daniel Patrick Moynihan

U n i t e d States Courthouse, 500 Pearl Street, in the City of

N e w York, on the 10th day of July, two thousand seven.

PRESENT:

H O N . JOSEPH M. McLAUGHLIN,

H O N . JOSÉ A. CABRANES,

H O N . REENA RAGGI,

C i r c u i t Judges.

P A R M J I T SANDHU SINGH,

Petitioner,

0 4 - 2 1 7 7 - a g (L);

v. 05-3406-ag (con)

NAC

A L B E R T O R. GONZALES, 1

Respondent.

F O R PETITIONER: T e r e s a Salazar, San Francisco,

California.

P u r s u a n t to Federal Rule of Appellate Procedure 43(c)(2), Attorney

G e n e r a l Alberto R. Gonzales is automatically substituted for former Attorney

G e n e r a l John Ashcroft.

F O R RESPONDENT: K e v i n J. O'Connor, United States A t t o r n e y , District of Connecticut, L i s a E. Perkins, William J. Nardini, A s s i s t a n t United States Attorneys, H a r t f o r d , Connecticut.

U P O N DUE CONSIDERATION of these petitions for review of d e c i s i o n s of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED, that the petitions f o r review are DENIED and Respondent's motion to dismiss is D I S M I S S E D as moot.

P e t i t i o n e r Parmjit Sandhu Singh, a native and citizen o f India, seeks review of the following orders of the BIA: ( 1 ) the April 2, 2004 denial of his motion to reissue the B I A ' s October 1995 order denying his application for asylum a n d withholding of deportation, In re Parmjit Sandhu Singh, N o . A72 473 982 (B.I.A. Apr. 2, 2004); and (2) the May 31, 2 0 0 5 denial of his motion to reconsider the April 2004 o r d e r , id. (B.I.A. May 31, 2005). We assume the parties' f a m i l i a r i t y with the underlying facts and procedural history o f the case.

A s a preliminary matter, Respondent has filed a motion t o dismiss these petitions for review. The memorandum of l a w in support of said motion, however, fails to allege in a n y meaningful way that we lack the authority, or that it is u n n e c e s s a r y , to consider the petitions for review on their merits. Instead, the memorandum directly addresses Singh's a r g u m e n t s on their merits and explicitly requests that we d e n y the petitions for review. In light of the foregoing, a n d in the interest of judicial economy, we construe R e s p o n d e n t ' s memorandum as a brief on the merits and analyze S i n g h ' s claims without regard to the motion to dismiss.

W e review the BIA's denial of a motion to reissue a p r e v i o u s decision in the same manner as a motion to reopen.

C f . Jin Bo Zhao v. INS, 452 F.3d 154, 156 (2d Cir. 2006) ( p e r curiam). The BIA's denial of a motion to reopen or r e c o n s i d e r is reviewed for an abuse of discretion. See Kaur v . BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An a b u s e of discretion may be found where the BIA's decision " p r o v i d e s no rational explanation, inexplicably departs from e s t a b l i s h e d policies, is devoid of any reasoning, or c o n t a i n s only summary or conclusory statements; that is to s a y , where the Board has acted in an arbitrary or capricious manner." Id. at 233-34.

S i n g h argues that the BIA abused its discretion in d e n y i n g his motion to reissue when his uncontested affidavit s u f f i c i e n t l y demonstrated that he was not served a copy of t h e BIA's October 1995 decision. The regulations provide t h a t proper "service" consists of physically presenting or m a i l i n g a document to the appropriate party or parties. See 8 C.F.R. § 1003.13. When, as here, service was not by c e r t i f i e d mail, a rebuttable presumption of receipt arises s o long as the record establishes that the document was a c c u r a t e l y "addressed and mailed in accordance with normal o f f i c e procedures." Bhanot v. Gonzales, 474 F.3d 71, 73 (2d C i r . 2007) (citing Lopes v. Gonzales, 468 F.3d 81, 85 (2d C i r . 2006)).

T h e BIA did not abuse its discretion in denying Singh's m o t i o n to reissue. The record reflects that the transmittal s h e e t attached to the BIA's October 1995 order was properly a d d r e s s e d to Singh at the address he provided on his pro se n o t i c e of appeal. Moreover, the only evidence of non r e c e i p t that Singh provided the BIA in support of his motion t o reissue was his sworn declaration. This bare allegation o f non-receipt was insufficient to rebut the presumption of r e c e i p t , particularly in light of the properly addressed t r a n s m i t t a l sheet. See Bhanot, 474 F.3d at 74; see also D a l i p Singh v. Gonzales, 469 F.3d 863, 870 (9th Cir. 2006) ( " S i n g h ' s affidavits alleging nonreceipt and implying n o n m a i l i n g are insufficient to overcome the BIA's factual f i n d i n g ­ based on the transmittal sheet's evidence of m a i l i n g ­ that the decision was properly mailed.").

F u r t h e r m o r e , we decline to consider Singh's arguments r e g a r d i n g the BIA's denial of his motion to reconsider the A p r i l 2004 order because "we are certain, given the facts," t h a t remand would be futile. Iavorski v. INS, 232 F.3d 124, 1 3 4 (2d Cir. 2000); Xiao Ji Chen v. U.S. Dep't of Justice, 4 7 1 F.3d 315, 335 (2d Cir. 2006). Singh's motion to r e c o n s i d e r failed to allege any errors of fact or law in the B I A ' s April 2004 order, and instead improperly tried to i n t r o d u c e new evidence of non-receipt of the October 1995 decision. See Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F . 3 d 83, 90 (2d Cir. 2001) (distinguishing between motions t o reconsider and motions to reopen). Therefore, even if the B I A had addressed the arguments raised in the motion, it w o u l d have had substantial grounds for denying the motion.

F o r the foregoing reasons, the petitions for review are D E N I E D and Respondent's motion to dismiss is DISMISSED as moot. Having completed our review, any stay of removal that t h e Court previously granted in these petitions are VACATED, a n d any pending motion for a stay of removal in these p e t i t i o n s are DISMISSED as moot. Any pending request for o r a l argument in these petitions is DENIED in accordance w i t h Federal Rule of Appellate Procedure 34(a)(2), and S e c o n d Circuit Local Rule 34(d)(1).

F O R THE COURT: Catheri n e O'Hagan Wolfe, Clerk By:

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