Alrefae v. Chertoff

• Decision Date: 14 December 2006
• Docket Number: Docket No. 05-3253-AG.
• Citation: 471 F.3d 353
• Parties: Abdoh Ahmed ALREFAE, Petitioner, v. Michael CHERTOFF, Department of Homeland Security, Alberto R. Gonzales, United States Attorney General, Julie L. Myers, Assistant Secretary for the Bureau of Immigration and Customs Enforcement, Department of Homeland Security, William Cleary, Bureau of Immigration and Customs Enforcement Detention Removal Field Office Director,<SMALL><SUP>1</SUP></SMALL> Respondents.
• Court: U.S. Court of Appeals — Second Circuit

471 F.3d 353

Abdoh Ahmed ALREFAE, Petitioner, v. Michael CHERTOFF, Department of Homeland Security, Alberto R. Gonzales, United States Attorney General, Julie L. Myers, Assistant Secretary for the Bureau of Immigration and Customs Enforcement, Department of Homeland Security, William Cleary, Bureau of Immigration and Customs Enforcement Detention Removal Field Office Director,¹ Respondents.

Docket No. 05-3253-AG.

United States Court of Appeals, Second Circuit.

Argued: September 12, 2006.

Decided: December 14, 2006.

Eric W. Schultz, Sacks, Kolken & Schultz, Buffalo, NY, for petitioner.

Mary K. Roach, Assistant United States Attorney (Kathleen M. Mehltretter, Acting United States Attorney for the Western District of New York, on the brief), Buffalo, NY, for respondents.

Before: STRAUB, SOTOMAYOR and KATZMANN, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Abdoh Ahmed Alrefae, a citizen of Yemen, petitions for review of a June 2, 2004 order of the Board of Immigration Appeals ("BIA") affirming without opinion a July 15, 2003 decision of Immigration Judge ("IJ") Philip J. Montante, Jr., denying Alrefae's motion to rescind an in absentia order of removal and to reopen removal proceedings on the basis of new evidence. In re Abdoh Ahmed Alrefae, No. A 29 001 867 (B.I.A. June 2, 2004), aff'g No. A 29 001 867 (Immig. Ct. Buffalo July 15, 2003). In 1997, Alrefae became a lawful permanent resident on a conditional basis as a result of his marriage to a United States citizen. He was ordered removed in absentia after he and his wife failed to file a timely joint petition to remove the conditional basis of his permanent resident status and he subsequently failed to appear for his removal hearing. We hold that the IJ erred in denying Alrefae's motion to rescind by failing to explain why Alrefae had not rebutted the presumption that he received notice of his removal hearing and by improperly applying this presumption in evaluating Alrefae's claim that exceptional circumstances prevented him from appearing at his hearing. We also hold that the IJ erred in denying Alrefae's motion to reopen because he failed to explain why Alrefae was not prima facie eligible for removal of the conditional basis of his residency status, or why Alrefae's divorce, which did not become final until after his removal hearing, did not constitute new evidence. Because of these errors, we GRANT the petition for review, VACATE the BIA's order and REMAND this case to the BIA for further proceedings.

BACKGROUND

Aliens who attain permanent resident status by marriage to a citizen are initially granted that status on a conditional basis for two years. 8 U.S.C. § 1186a(a)(1); 8 C.F.R. §§ 216.1-.4. Within ninety days before the two-year anniversary of the granting of conditional permanent residence, the alien and his or her spouse must jointly petition, by filing a Form I-751, to remove the conditions on residence, and must attach documentary evidence establishing that the marriage was not entered into for purposes of evading United States immigration laws. 8 U.S.C. §§ 1186a(c)(1), (d); In re Stowers, 22 I. & N. Dec. 605, 609 (B.I.A.1999). Aliens who are unable to file jointly may seek a discretionary waiver of the joint filing requirement from the government on one or more of three bases enumerated at 8 U.S.C. § 1186a(c)(4). Stowers, 22 I. & N. Dec. at 609-10. Among the bases for a waiver is the "good-faith marriage" waiver, under which the alien must show that "the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to" file jointly. 8 U.S.C. § 1186a(c)(4)(B). If the government denies the waiver application, the alien may seek review of the denial before the IJ in the course of removal proceedings. 8 C.F.R. § 216.5(f).

Alrefae entered the United States on a nonimmigrant visa in July 1992 and remained here after the visa expired. On May 31, 1995, Alrefae married Tracy Reilly, a United States citizen, but apparently took no action to adjust his immigration status. On June 13, 1995, he received notice that removal proceedings had been initiated against him for overstaying his visa. In response, he conceded removability and requested voluntary departure, and on August 28, 1995, this request was granted. Alrefae thereafter filed a motion to reopen removal proceedings on the basis of his marriage and to adjust his status. This motion was granted on March 3, 1996, and on January 21, 1997, Alrefae attained permanent resident status on a conditional basis.

Alrefae's permanent resident status was terminated on February 25, 1999, after he and Reilly failed to file a joint petition to remove the conditions on that status. Alrefae apparently took no action between 1999 and 2002 in response to the termination. On January 10, 2003, however, Alrefae appeared voluntarily at the Buffalo, New York office of the Immigration and Naturalization Service ("INS")² to register pursuant to the National Security Entry-Exit Registration System ("NSEERS") program.³ At the INS office, officials served Alrefae with a notice to appear for removal proceedings, but did not set a hearing date. On February 27, 2003, the INS mailed a notice of hearing date for March 28, 2003, to the address listed on the notice to appear. Alrefae failed to appear for his hearing and was ordered removed in absentia. A copy of the removal order was mailed to him that day.

Alrefae had filed for divorce from Reilly on December 14, 2002, claiming that she was abusive to him and addicted to drugs. He was granted a divorce on May 20, 2003, about two months after he failed to appear for his removal hearing. On June 18, 2003, Alrefae filed a "Motion to Rescind In Absentia Order of Removal and Reopen Proceedings," explaining that his wife had refused to file with him to remove the conditions on his residence because of "her mental state[,] which may be attributable to her addiction to illegal narcotics." He sought rescission of the removal order pursuant to 8 U.S.C. § 1229a(b)(5)(C), claiming that his failure to appear was the result of exceptional circumstances beyond his control — specifically, that he had not received the notice of his hearing date because "[u]pon information and belief, the notice was intercepted by a third party and was therefore never delivered to [him]." Alrefae also asserted that, according to an INS memorandum and under BIA precedent, he was entitled to request a continuance of the removal proceedings pending finalization of his divorce. He therefore claimed that there would have been no reason for him not to appear at the removal hearing had he received notice of it. Moreover, he stated that "on or about May 28, 2003," he had filed a Form I-751 petition with the INS to remove his conditional status along with a request for waiver of the joint filing requirement.⁴

On July 14, 2003, Alrefae filed a notarized letter with the Immigration Court stating that his home at "11 Tenbroek St., in Albany, New York" had been burglarized on February 25, 2003, and that soon thereafter he began receiving mail at the address of his friend Fuad Mansour.⁵ Alrefae also stated in the letter that Mansour had told him that he lost the mail, but would not sign an affidavit to this effect. Alrefae submitted along with the letter a police report concerning the burglary of his home.

The following day, July 15, 2003, the IJ denied Alrefae's motion. The IJ stated that the notice of hearing had not been returned to sender, giving rise to a presumption of delivery. Moreover, he observed that the notice had been sent to the address Alrefae had provided, and Alrefae had not subsequently filed a change of address form with the Immigration Court. For these reasons, the IJ concluded, Alrefae had failed to establish exceptional circumstances that would entitle him to rescission of the in absentia removal order. The IJ also stated that to prevail on a motion to reopen, Alrefae would have had to show prima facie eligibility for the underlying relief sought and present material previously unavailable evidence. Without further explaining his reasoning, the IJ denied Alrefae's motion to reopen.

Alrefae appealed the IJ's decision, and on June 2, 2004, the BIA affirmed without opinion. Alrefae filed a motion under 28 U.S.C. § 2241 in the United States District Court for the Western District of New York, seeking review of the BIA's order. This petition was transferred to this Court as a petition for review pursuant to the REAL ID Act of 2005, Pub.L. No. 109-13, § 106(a), 119 Stat. 231, 311 (codified at 8 U.S.C. § 1252) ("REAL ID Act").⁶ See Order, Alrefae v. Ridge, No. 04-cv-0449 (W.D.N.Y. June 24, 2005) (Docket Entry No. 12).

DISCUSSION

Where, as here, the BIA affirms an IJ's decision without opinion, we review the decision of the IJ as the final agency determination. Tu Lin v. Gonzales, 446 F.3d 395, 398 (2d Cir.2006). We review the denial of a motion to reopen for abuse of discretion, which may be found if the decision "provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements." Wei Guang Wang v. BIA, 437 F.3d 270, 273 (2d Cir.2006) (internal quotation marks omitted).

We note at the outset that we, unlike the parties, construe Alrefae's motion to rescind the in absentia removal order and to reopen proceedings on the basis of new evidence as comprising two distinct motions, which we review under different substantive standards. As we recently explained, although a motion to rescind is a type of motion to reopen, it is distinctive in that a "motion to reopen for purposes of rescinding an in absentia [removal] order . . . seeks to restart proceedings as if the previous proceedings never occurred." Maghradze v. Gonzales, 462 F.3d 150, 152 n. 1 (2d Cir.2006). Because "[d...