Sedha

MEMORANDUM *

Jagmohan Sedha and his children, Amit and Ritu, appeal the Board of Immigration Appeals’ (BIA) denial of their motion to reopen their deportation proceedings, which were conducted in abstentia. 1 Sedha alleges that he and his children did not receive proper notice of the original deportation proceedings and therefore are eligible for rescission of the deportation order. We grant the petition for review and remand this case to the BIA for further proceedings.

A deportation order granted in abstentia is subject to rescission if notice was not provided in the manner established by 8 U.S.C. § 1252b (1995). Notice of the time and place of the proceedings must be sent to the alien’s address, unless notice is given in person or sent to the alien’s counsel of record. The only exception to this requirement is triggered by an alien’s failure to provide the address required under 8 U.S.C. § 1252b(a)(1)(F).

The 1996 Amendments substantially clarified Congress’ intent, making clear that the hearing notice must be sent to “the last address provided by the alien in accordance with subsection (a)(1)(F).” 8 U.S.C. § 239 (a)(1)(F). Interpreting this provision, the BIA has concluded…

dissenting.

I would deny the petition because the BIA was not shown to have abused its discretion in denying the motion to reopen. The petitioners failed to come forward with any evidence that they did not receive notice of hearing. The notice was sent by certified mail to petitioners’ address of record, where the return receipt was signed for. In their motion to reopen, petitioners failed to submit a declaration, an affidavit, or any other evidence attesting that the notice was sent to the wrong address, that they did not receive the notice, or that it was signed for by someone other than one of the petitioners. If they subsequently changed their address without notifying *879 the immigration court or the INS, they did so at their own peril.