Alrefae v. Chertoff

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 Alrefaes 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), affg 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 Alrefaes 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 Alrefaes claim that exceptional circumstances prevented him from appearing at his hearing. We also hold that the IJ erred in denying Alrefaes 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 Alrefaes 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 BIAs order and REMAND this case to the BIA for further proceedings.