Singh

MEMORANDUM *

Petitioner, Barjinder Singh, seeks review of the Board of Immigration Appeals’ (BIA) denial of his motion to reopen to adjust his status and its denial of his motion to reconsider that decision. Singh contends that the BIA abused its discretion in denying his motion to reopen as untimely without considering all of the evidence contained in the record, including his own sworn statement as well as that of his counsel, that he was entitled to equitable tolling of the filing deadline because the BIA did not timely notify him of the agency’s final decision.

We have recently held that the BIA abuses its discretion when it fails to consider affidavits of non-receipt submitted by an alien and his attorney in order to rebut the presumption of service. See Singh v. Gonzales, 494 F.3d 1170, 1172-73 (9th Cir. *716 2007) (hereinafter “Dalip Singh”) (explaining that “[h]ad the BIA considered and specifically addressed the effect of Singh’s and his counsel’s affidavits of non-receipt, it may well have concluded that the presumption of mailing created by the cover letter was rebutted”). In the present case, as in Dalip Singh, Singh submitted evidence to rebut the presumption that…