10-688-ag
    Francis v. Holder
                                                                                  BIA
                                                                           Montante, IJ
                                                                          A076 024 171
                         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 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 the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 23rd day of May, two thousand eleven.

    PRESENT:
             JOHN M. WALKER, JR.,
             PETER W. HALL,
             DENNY CHIN,
                  Circuit Judges.
    _______________________________________

    IRVING FRANCIS,
             Petitioner,

                        v.                                 10-688-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:               Nita Dobroshi, The Law Offices of
                                  Spar & Bernstein, P.C., New York,
                                  New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Aviva L. Poczter, Senior
                                  Litigation Counsel; Christopher P.
                       McGreal, Trial Attorney, Office of
                       Immigration Litigation, Civil
                       Division, United States Department
                       of Justice, Washington, D.C.

     UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is GRANTED, in part, and DENIED, in part.

     Petitioner Irving Francis, a native and citizen of
Trinidad, seeks review of a January 29, 2010, order of the
BIA affirming the September 8, 2008, decision of Immigration
Judge (“IJ”) Philip J. Montante, Jr. denying his motion to
rescind an in absentia removal order and reopen his
proceedings. In re Irving Francis, No. A076 024 171 (B.I.A.
Jan. 29, 2010), aff’g No. A076 024 171 (Immig. Ct. Buffalo
Sept. 8, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.

     Under the circumstances of this case, we review both
the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 

, 237 (2d Cir.
2008) (internal quotations omitted). We review the agency’s
denial of motions to rescind or reopen for abuse of
discretion. See Kaur v. BIA, 

, 233 (2d Cir.
2005) (per curiam); Alrefae v. Chertoff, 

, 357
(2d Cir. 2006).

     The agency abused its discretion in denying Francis’s
motion to rescind as it failed to consider all of the
evidence in the record. An in absentia order of removal may
be rescinded if an alien demonstrates that he did not
receive notice of the hearing. 8 U.S.C. § 1229a(b)(5)(C).
In such cases, “the central issue . . . is whether the alien
actually received the notice,” and not “whether the notice
was properly mailed.” 

(quotation
omitted). While the agency may presume that mail sent to an
alien’s address is received, the agency has an obligation to
“consider all relevant evidence, including circumstantial
evidence, offered to rebut th[e] presumption.” 

                             2
     Here, the agency failed to consider that when the
immigration court mailed the in absentia order to the
address on Francis’s Notice to Appear, the letter was
returned because its recipient did not live at the address.
Additionally, the IJ abused his discretion by refusing to
consider Francis’s divorce decree–which was submitted as
evidence that at the relevant time he lived in Brooklyn—on
the ground that the removal of a staple to permit the
document to be photocopied, undermined the evidentiary value
of the decree. The IJ provided no analysis or legal basis
for this conclusion. See 

(explaining that an abuse of discretion may be found where
the agency’s decision “provides no rational explanation . .
. [and] is devoid of any reasoning . . .”). Accordingly,
because it did not consider all of Francis’s evidence, the
agency abused its discretion in concluding that Francis had
not rebutted the presumption of receipt. See 

-60 (concluding that the agency abused its
discretion when it did not address all of the evidence
submitted to rebut the presumption of receipt of notice).
We therefore remand to the agency to consider all of the
evidence.

     Having found an abuse of discretion in the agency’s
fact-finding process, we do not address whether Francis was
obligated to notify the immigration court that he resided at
a different address from that on his Notice to Appear
because any such obligation did not form a separate basis
for the agency’s decision. Having concluded that the agency
abused its discretion in evaluating whether Francis received
notice, we additionally vacate the agency’s decision insofar
as it dismissed Francis’s motion for lack of due diligence.
The agency may thus reconsider that discretionary issue in
light of its reconsideration of the merits of Francis’s
motion. Accordingly, we vacate the agency’s denial of
Francis’s motion to rescind his in absentia removal order
for lack of notice and remand for reconsideration. We
express no opinion on the ultimate outcome of those
proceedings.

     We deny the petition for review in all other respects.
Francis’s due process claim fails because he has failed to
demonstrate prejudice; the record demonstrates that the BIA
accepted Francis’s counsel’s account of what happened at the

                             3
hearing on appeal. See Garcia-Villeda v. Mukasey, 

, 149 (2d Cir. 2008) (an alien alleging a due process
violation must demonstrate “cognizable prejudice”).

     Moreover, the agency did not abuse its discretion in
denying rescission under 8 U.S.C. § 1229a(b)(5)(C)(i) or
reopening under 8 U.S.C. § 1229a(c)(7) because the motion
was untimely. The agency evaluated and reasonably
discounted Francis’s evidence that he relied on an attorney
to respond to his Notice to Appear. Francis’s I-130
application indicated that he was represented by a different
attorney. Francis’s complaint to the bar association did
not confirm the existence of his attorney; the association
had no record of the attorney, and Francis’s purported
receipts from his attorney did not establish that the
attorney agreed to assist him by responding to the Notice to
Appear. Accordingly, the agency’s denial of equitable
tolling with respect to the motion to reopen, or rescission
based on equitable circumstances, was not an abuse of
discretion. See 

.

     For the foregoing reasons, the petition for review is
GRANTED, in part and DENIED, in part, the order of removal
is VACATED, and the case is REMANDED to the BIA for
proceedings consistent with this decision. Any pending
request for oral argument in this petition is DENIED in
accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




                             4