Opinion
No. 06-1956-ag NAC.
October 9, 2007.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
FOR PETITIONER: Jose L. DelCastillo, Hartford, Connecticut. FOR RESPONDENTS: John L. Ratcliffe, Acting United States Attorney for the Eastern District of Texas, Paul E. Naman, Assistant United States Attorney, Beaumont, Texas.
PRESENT: HON. SONIA SOTOMAYOR HON. ROBERT A. KATZMANN, HON. REENA RAGGI, Circuit Judges.
Arif Mehmood, a citizen of Pakistan, seeks review of a March 27, 2006 order of the BIA denying his motion to reopen his removal proceedings. In re Arif Mehmood, No. A73 577 035 (BIA Mar. 27, 2006). We assume the parties' familiarity with the underlying facts and procedural history of the case.
_____We review the BIA's denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An abuse of discretion may be found where the BIA's decision "provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner." Kaur, 413 F.3d at 233-34; Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001).
Pursuant to 8 C.F.R. § 1003.2(c)(2), a motion to reopen must be filed within 90 days of the entry of the final decision in the underlying proceeding. However, claims of ineffective assistance of counsel may provide a sufficient basis for the equitable tolling of the 90-day period if the movant shows that his due process rights were violated by the conduct of counsel, and that he exercised "due diligence in pursuing the case during the period [he] seeks to toll." Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam); Iavorski v. INS, 232 F.3d 124, 134-35 (2d Cir. 2000).
In this case, there is no dispute that Mehmood's November 2005 motion to reopen was untimely because the BIA issued its decision dismissing his appeal in December 2002. In his motion, Mehmood argued that his prior counsel was ineffective because he failed to file a brief in support of his appeal to the BIA or to notify him of the outcome of his appeal. The BIA concluded, however, that the deadline for filing should not be equitably tolled because, according to the record, the BIA's December 2002 order dismissing his appeal was mailed to the address that Mehmood provided on his notice of appeal and because Mehmood failed to establish that he did not receive it.
Although not discussed by the BIA, we find no evidence in the record that counsel was retained for purposes of Mehmood's BIA appeal where he listed no "Attorney or Representative" on his Notice of Appeal.
Pursuant to the Immigration and Nationality Act, proper service consists of physically presenting or mailing a document to the appropriate party or parties. 8 C.F.R. § 1003.13. When served by regular mail, as in this case, a rebuttable presumption of receipt arises so long as the record establishes that the document was accurately addressed and mailed in accordance with normal office procedures. See Bhanot v. Chertoff, 474 F.3d 71, 73 (2d Cir. 2007) (per curiam); Lopes v. Gonzales, 468 F.3d 81, 85 (2d Cir. 2006) (per curiam). In Lopes, we granted the petition for review because the BIA failed to consider "circumstantial evidence" in the record that might have rebutted the presumption of receipt. Id. at 82, 86.
In this case, the record contains a copy of the EOIR transmittal memo listing the same address Mehmood listed on his notice of appeal. A copy of the BIA decision, dated December 26, 2002, also lists the same address. Thus, the presumption of receipt applies in this case because the evidence suggests that the BIA's decision was "accurately addressed and mailed in accordance with normal office procedures." Id. at 85. Mehmood's only argument that can be read as an attempt to rebut the presumption is his assertion that he relocated after the Notice of Appeal was delivered. However, Mehmood had a statutory responsibility to notify the EOIR of his change of address. See 8 U.S.C. § 1229(a)(1)(F) (an alien has the obligation to inform the Attorney General in writing as to any change in the alien's address or telephone number). Thus, we cannot find, contrary to the BIA, that Mehmood rebutted the presumption of receipt. Accordingly, we find no abuse of discretion in the BIA's denial of Mehmood's motion.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.