Anoop Singh v. Loretta Lynch

Filing

OPINION filed : The petition for review is DISMISSED. Decision not for publication. Alan E. Norris (AUTHORING), Alice M. Batchelder, and Jeffrey S. Sutton, Circuit Judges.

Case: 15-3502

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0073n.06
No. 15-3502
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANOOP SINGH,
Petitioner,
v.
LORETTA E. LYNCH, U.S. Attorney General,
Respondent.

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FILED
Feb 03, 2016
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
OF A DECISION OF THE
BOARD OF IMMIGRATION
APPEALS
OPINION

BEFORE: NORRIS, BATCHELDER, and SUTTON, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. Petitioner Anoop Singh is a citizen of India who
entered the United States on June 3, 2001, as a non-immigrant crewmember. His D-2 visa
allowed him to remain in the country until June 12, 2001. The sole issue in this appeal is whether
petitioner received proper notice of a hearing regarding his asylum-only application. Because he
failed to appear, the Immigration Judge denied him asylum, withholding of removal, and
protection under the Convention Against Torture in absentia. Seven years later, on November 9,
2012, petitioner filed a motion to reopen his proceedings. That motion was denied by the
Immigration Judge. Petitioner sought review with the Board of Immigration Appeals (“the
Board”). The Board dismissed his appeal and the matter is now before us.
We review a motion to reopen proceedings under the deferential abuse-of-discretion
standard; the Board abuses that discretion when its decision lacks “rational explanation,
inexplicably depart[s] from established policies, or rest[s] on an impermissible basis such as

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invidious discrimination against a particular race or group.” Thompson v. Lynch, 788 F.3d 638,
642 (6th Cir. 2015) (quoting Camaj v. Holder, 625 F.3d 988, 991 (6th Cir. 2010)). When the
Board provides its own reasoning for affirming the denial of relief, we review only its decision.
Id. (citing Cordava v. Gonzales, 245 F. App’x 508, 511-12 (6th Cir. 2007)). To the extent that
the Board adopts the reasoning of the Immigration Judge, we also review that decision. AlGhorbani v. Holder, 585 F.3d 980, 991 (6th Cir. 2009). Motions to reopen are disfavored in
deportation proceedings. INS v. Abudu, 485 U.S. 94, 107 (1988).
An alien applying for asylum must be provided with “notice of the time and place of the
proceeding.” 8 C.F.R. § 1208.2(c)(3)(ii). If the alien fails to appear, his “request for asylum and
withholding of removal . . . shall be denied.” Id. The motion must include documentary evidence
that notice was not received. 8 C.F.R. § 1208.2(c)(3)(ii)(A).
On May 11, 2005, the Department of Homeland Security (“DHS”) served petitioner with
an I-863 form by first-class mail notifying him that his application for asylum was being referred
to an Immigration Judge for a hearing. (A.R. 156.) On May 16, 2005, a letter sent to the same
address informed him that the hearing would be held on July 22, 2005. (A.R. 154.) This
correspondence was addressed to him at 609 North Morton St., St. Johns, Michigan. (A.R. 154.)
He provided this address by letter on February 4, 2004, and the DHS subsequently updated his
file to reflect that change. (A.R. 73, 77.) In her decision denying petitioner’s motion to reopen,
the Immigration Judge noted that neither correspondence was returned by the post office as
undeliverable, giving rise to a presumption that petitioner received the documents. (A.R. 12.)
The presumption of delivery by regular mail is weaker than notice sent by certified mail and “all
evidence submitted to overcome the weaker presumption of delivery must be considered.”
Matter of M-R-A-, 24 I&N Dec., 665, 674 (BIA 2008).
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In the declaration accompanying his motion to reopen, petitioner averred that he and his
wife1 had moved to Flushing, New York in 2004, and then to California in 2005. (A.R. 105.) He
alleges that he never received a hearing notice and also asserts that he had never abandoned his
asylum claim. In addition to his declaration, petitioner submitted the following: an interim New
York driver’s license dated August 17, 2004 (A.R. 123); a change of address form sent to the
Immigration Court dated September 16, 2005, informing the court that he had moved from
Wyoming, Michigan , to California (A.R. 91-92.); a letter from USCIS, dated February 23, 2006,
confirming notification of his California address (A.R. 127); a change of status inquiry dated
November 15, 2006 (A.R. 129); and a California identification card obtained on September 13,
2005, listing his California address.
The Board considered this evidence but concluded that the Immigration Judge “correctly
found that the applicant’s declaration was not credible and that he did not overcome the
presumption of delivery.” (A.R. 9.) It noted that the New York interim license did not contain an
address or photograph of petitioner. Moreover, the letter from Ms. Gottschalk’s attorney stating
that the couple only lived together for a short time cast doubt on petitioner’s claim that the
couple relocated to New York. As for the identification card from California, the Board observed
that it was dated September 13, 2005, which was after the disputed notices were sent. Although
not mentioned by the Board, the Immigration Judge noted that the government had provided
documentary proof that petitioner had provided a change of address form on May 17, 2005,
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Petitioner married a United States citizen, Elizabeth Gottschalk on January 16, 2003. (A.R.
153.) She filed a petition on his behalf for permanent residency on the same day. Id. However,
on May 3, 2004, counsel for Ms. Gottschalk informed the United States Citizenship and
Immigration Services (“USCIS”) she wished to withdraw her I-130 Alien Relative Petition
because “the couple resided together for only a very brief period of time during the course of
their marriage.” (A.R. 80.)
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indicating that he had relocated from St. Johns, Michigan, to Wyoming, Michigan. (A.R. 85-86.)
This evidence belies his assertion that he lived in New York or California and not in Michigan
when the disputed notices related were sent.
After independently reviewing the administrative record, we conclude that the Board did
not abuse its discretion when it dismissed the appeal. As we stated at the outset of this opinion, to
find otherwise would require us to conclude that the Board’s decision lacks “rational
explanation.” Thompson, 788 F.3d at 642. It does not. For the reasons outlined by the
Immigration Judge and the Board, petitioner’s declaration is not credible. It states that he moved
with his wife to New York in 2004 and then to California. The documentary evidence indicates
that petitioner lived in Michigan at the time the disputed notices were sent to his St. John’s
address. He relocated to Wyoming, Michigan after the forms were mailed. (A.R. 85-86.)
Moreover, his wife’s attorney indicated that the couple had lived together only briefly. We have
already summarized the other factors relied upon by the Board and will not repeat them here.
Suffice it to say that sufficient evidence supports the decision.
The petition for review is dismissed.

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