See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Motions to reopen deportation proceedings in which an alien has been ordered deported in absentia are governed by different rules depending on whether the movant seeks to rescind the in absentia deportation order or to present new evidence of eligibility for relief. See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-, 22 I. & N. Dec. 349, 353-55 (BIA 1998). Accordingly, when, as here, an alien seeks both rescission of an in absentia deportation order, as well as reopening of deportation proceedings based on new evidence, the motion is treated as comprising distinct motions to rescind and to reopen.

In his petition for review, Grigous argues that he seeks a motion to reopen his proceedings to apply for asylum under the general motion to reopen procedures set forth in 8 C.F.R. § 1003.23(b), not a motion to reopen to rescind his in absentia removal order under 8 U.S.C. § 1229(b)(5)(C). See Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006) (explaining that, under certain circumstances, a petitioner who has been ordered removed in absentia may seek reopening to apply for discretionary relief under the general reopening regulations without seeking rescission of the in absentia removal order under 8 U.S.C. § 1229a(b)(5)(C)). Grigous does not raise his previous argument that the in abstentia order should be rescinded because the government failed to provide him with notice of the date of the hearing.

Different requirements pertain to each type of motion to reopen, and thus, although both are technically motions to reopen, for purposes of clarity we shall refer to the former as a "motion to rescind" and the latter as a "motion to reopen." 436 F.3d 157, 161 n. 1 (2d Cir. 2006) (internal citations omitted). We follow the Wu analysis, and construe the single motion filed here as if it were two separate motions — a "motion to rescind" and a "motion to reopen."

Because counsel received the notice, the notice requirement was satisfied. See Song Jin Wu v. INS, 436 F.3d 157, 162 (2d Cir. 2006) (determining, under prior version of the statute, that petitioner failed to rebut presumption of proper notice when attorney of record received notice of the hearing).

When the agency orders an alien removed in absentia, a motion to reopen is governed by different rules depending on whether the movant seeks reopening to rescind the order or to present new evidence of eligibility for relief from removal. See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-, 22 I. & N. Dec. 349, 353-55 (B.I.A. 1998). Wang sought to both rescind his in absentia removal order for lack of notice and to reopen proceedings to apply for asylum based on his conversion to Catholicism.

Motions to reopen in absentia removal orders are governed by different rules depending on whether the movant seeks to rescind the order or present new evidence of eligibility for relief from removal. See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-, 22 I. & N. Dec. 349, 353-55 (BIA 1998). Accordingly, when, as here, an alien files a motion that seeks both rescission of an in absentia removal order, as well as reopening of removal proceedings based on new claims for eligibility for relief, we treat the motion as comprising distinct motions to rescind and to reopen.

Motions to reopen in absentia orders are governed by different rules depending on whether the movant seeks to rescind the order or present new evidence. See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S- 22 I. N. Dec. 349, 353-55 (BIA 1998) (en banc). Accordingly, when, as here, an alien files a motion that seeks both rescission of an in absentia exclusion order, as well as reopening of proceedings based on new evidence, the Court treats the motion as comprising distinct motions to rescind and to reopen.

As an initial matter, we note that motions to reopen in absentia deportation orders are governed by different rules depending on whether the movant seeks to rescind the order or present new evidence. See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re MS- 22 I. N. Dec. 349, 353-55 (BIA 1998) (en banc). Accordingly, where, as here, an alien files a motion that seeks both rescission of an in absentia removal order, as well as reopening of removal proceedings based on new evidence, we treat the motion as comprising distinct motions to rescind and to reopen.

8 U.S.C. § 1229a(b)(5)(A). An in absentia order may only be rescinded if (1) the alien files a motion to reopen within 180 days of the order of deportation and sets forth exceptional circumstances justifying his failure to appear, or (2) demonstrates that he did not receive proper notice of the deportation hearing. 8 U.S.C. § 1229a(b)(5)(C); see also Song Jin Wu v. INS, 436 F.3d 157, 160 (2d Cir. 2006). The BIA has held that a failure to provide a new address to the court does not automatically subject an alien to an in absentia order.

Moreover, to the extent that the government asks us to affirm the BIA's decision based on reasons not provided by the BIA, we decline to do so. See Wu v. I.N.S., 436 F.3d 157, 164 (2d Cir. 2006) ("It is not the function of a reviewing court in an immigration case to scour the record to find reasons why a BIA decision should be affirmed. Rather, we take the Board's decision as we find it, and if the reasoning it advances for denying a petitioner's claim cannot support the result, we will vacate the decision.").