Singh v. Gonzales, 03-72197.

• Decision Date: 24 June 2005
• Docket Number: No. 03-72197.,No. 03-74613.,03-72197.,03-74613.
• Citation: 412 F.3d 1117
• Parties: Gulzar SINGH, Petitioner, v. Alberto R. GONZALES, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

412 F.3d 1117

Gulzar SINGH, Petitioner, v. Alberto R. GONZALES, Attorney General,^* Respondent.

No. 03-72197.

No. 03-74613.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 15, 2005.

Filed June 24, 2005.

Martin Resendez Guajardo, Law Office of Martin Resendez Guajardo, San Francisco, California, for the petitioner.

Andrew C. MacLachlan, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A76-458-043.

Before LAY,^** B. FLETCHER, and HAWKINS, Circuit Judges.

LAY, Circuit Judge.

Petitioner Gulzar Singh seeks review of two orders issued by the Board of Immigration migration Appeals ("Board"). The first order was issued May 6, 2003, and it affirmed an Immigration Judge's ("IJ") denial of Singh's motion to reopen removal proceedings and rescind a removal order which was entered against Singh in absentia. The second Board order issued on December 8, 2003. This granted Singh's motion for reconsideration of the first decision, but then again denied Singh's request to reopen removal proceedings. We reverse and remand this matter to the Board, with further orders to remand this matter to the IJ and to allow Singh to reopen removal proceedings.

Mr. Singh is a native and citizen of India who entered the U.S. on May 8, 1997, pursuant to a non-immigrant visitor visa. Singh remained in the U.S. past the authorized period of time and filed an application for asylum with the former Immigration and Naturalization Service ("INS" or "Service").

A few months later, on March 30, 1998, Singh wrote a letter to the asylum office in San Francisco withdrawing his asylum application. The letter stated, "I now wish to withdraw my Political Asylum claim. I believe that I should try to reside in a different city in my home country." Singh did not state when he intended to depart the U.S., nor did he provide a forwarding address. The asylum office mailed a notice to Singh's address of record on April 16, 1998, confirming termination of his asylum application. Singh then departed the U.S. on May 1, 1998, and returned to India. The asylum office was never notified of his departure.

Over two months after Singh's departure, on July 23, 1998, the asylum office served a notice to appear ("NTA") upon Singh by certified mail (return receipt requested) to his last known address in the U.S. The NTA alleged that Singh was removable as an alien who remained in the country longer than permitted under the terms of his visa. He was ordered to appear at a hearing before an IJ on October 21, 1998.¹ When Singh did not appear, the IJ ordered him removed in absentia.

Singh re-entered the U.S. as a non-immigrant visitor on March 6, 1999. Over three years later, on March 12, 2002, Singh filed a motion to reopen removal proceedings and to rescind the in absentia removal order. Singh alleged that he was not present in the U.S. when the hearing occurred because he had already returned to India. The IJ denied Singh's motion, finding that notice was properly provided to Singh at the only address he had ever provided to the Immigration Court. Thus, Singh could not reopen for lack of proper notice, and at any rate, his motion was time-barred. Singh appealed. The Board affirmed the IJ's decision without opinion on May 6, 2003. Singh filed a timely petition for review of the Board's decision.

On June 3, 2003, Singh also filed a motion with the Board for reconsideration of its May 6, 2003, decision. This time, Singh argued that the IJ lacked jurisdiction to hold the October 21, 1998, hearing and to enter the removal order in absentia. Singh pointed out that he left the U.S. on May 1, 1998, prior to the time jurisdiction vested with the IJ (i.e., before the NTA was filed with the Immigration Court on August 27, 1998).²

The Board agreed to reconsider its decision on the motion to reopen because Singh "correctly argue[d] that neither the Immigration Judge nor this Board had jurisdiction to adjudicate his March 12, 2002, motion to reopen."³ The Board cited the rule that "[a] motion to reopen shall not be made by or on behalf of a person who is the subject of ... removal proceedings subsequent to his departure from the United States. See 8 C.F.R. § 1003.2(d)." Since Singh's motion to reopen was filed after he departed the U.S., the Board reasoned that it never should have considered Singh's motion to reopen. The Board vacated its May 6, 2003 decision affirming the IJ's decision without opinion.

Next, the Board addressed whether the IJ lacked jurisdiction to enter the removal order in absentia on October 21, 1998. The Board concluded the NTA was properly effected through delivery to Singh's last known address by certified mail; because this mailing was not returned, Singh must have received the NTA. The Board also found there was no evidence of Singh's departure date from the U.S., such as airline tickets.⁴ It concluded that the October 21, 1998, removal order in absentia was properly entered. The original in absentia removal order was deemed "final to the same extent as though no motion to reopen had [ever] been filed." Singh filed a timely petition to review this (second) decision of the Board. Both petitions have been consolidated.

Denials of motions to reopen are reviewed for an abuse of discretion. See Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002). The Board's determination of a purely legal question is reviewed de novo. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1187 (9th Cir.2001) (en banc). Where the Board's interpretation of a statute is clearly erroneous or inconsistent with the plain meaning of the statute, deference to the BIA's interpretation is not warranted. Id.

I. The Board's Jurisdiction to Consider Singh's Motion to Reopen Removal Proceedings

The Board vacated its May 6, 2003, decision without opinion based on lack of jurisdiction pursuant to 8 C.F.R. § 1003.2(d). That regulation states:

(d) Departure, deportation, or removal. A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.

The Board interpreted this regulation to mean that any time a petitioner files a motion to reopen after departing the country, the motion is barred. The Board's interpretation forgets a fundamental premise: the scope of this regulation is clearly limited to persons who depart the U.S. after removal proceedings have already commenced against them. Removal proceedings would have to commence before a motion to reopen or reconsider is procedurally possible. Thus, the plain language of this regulation is limited to persons who depart the U.S. after removal proceedings have already commenced against them. The regulation does not encompass the novel factual situation presented here — i.e., a petitioner who first departs the U.S., then becomes the subject of removal proceedings, returns, and files a motion to reopen.

The Board's interpretation of this regulation also conflicts with established law. Under the Board's reading of the regulation in this case, the clause "who is the subject of ... removal proceedings" modifies the phrase "subsequent to his or her departure." However, the well-settled interpretation of this regulation is that the clause "who is the subject of ... removal proceedings" modifies the term "person." The sentence as a whole is taken to mean that a person who leaves the U.S. after removal proceedings have already been initiated is barred from filing a motion to reopen.⁵ The clause "who is the subject of... removal proceedings" cannot modify two things at the same time, thus the Board's interpretation of 8 C.F.R. § 1003.2(d) was clearly erroneous. Mr. Singh was not the "subject of ... removal proceedings" at the time he left the U.S., so § 1003.2(d) did not operate to remove the Board's jurisdiction to consider Singh's motion to reopen.

In light of the Board's incorrect basis for vacating its May 6, 2003, order, we reject the Board's conclusion that the original in absentia removal order should be deemed "final to the same extent as though no motion to reopen had [ever] been filed." Singh appealed the denial of his motion to reopen, and that appeal is before this court.

II. The IJ's Denial of Singh's Motion to Reopen

We also conclude that the IJ's denial of Singh's motion to reopen was an abuse of discretion.⁶ Under 8 U.S.C. § 1229a(b)(5)(C)(ii), a removal order may be rescinded "upon a motion to reopen ... if the alien demonstrates that [he] did not receive notice in accordance with paragraph (1) or (2) of section 1229(a)," which provides that the alien must be...