Perez-Saurez v. Lynch , 630 F. App'x 97 ( 2015 )

14-2157
Perez-Saurez v. Lynch
BIA
Straus, IJ
A075 204 658
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 24th day of November, two thousand fifteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 WILSON PEREZ-SAUREZ,
14 Petitioner,
15
16 v. 14-2157
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Joshua Bardavid, New York, New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Brianne
28 Whelan Cohen, Senior Litigation
29 Counsel; Mona Maria Yousif, Trial
1 Attorney, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 D.C.
56 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Wilson Perez-Saurez, a native and citizen of
11 Ecuador, seeks review of a May 29, 2014, decision of the BIA
12 affirming an October 24, 2012, decision of an Immigration Judge
13 (“IJ”) denying Perez-Saurez’s motion to rescind his in absentia
14 removal order. In re Wilson Perez-Saurez, No. A075 204 658
15 (B.I.A. May 29, 2014), aff’g No. A075 204 658 (Immig. Ct.
16 Hartford Oct. 24, 2012). We assume the parties’ familiarity
17 with the underlying facts and procedural history in this case.
18 Under the circumstances of this case, we have reviewed the
19 IJ’s decision as supplemented by the BIA. See Yan Chen v.
20 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the
21 denial of a motion to rescind an in absentia removal order for
22 abuse of discretion. Alrefae v. Chertoff, 471 F.3d 353, 357
23 (2d Cir. 2006).
2
1 An alien will be ordered removed in absentia if he does not
2 attend his removal hearing. 8 U.S.C. § 1229a(b)(5)(A).
3 However, an in absentia removal order may be rescinded at any
4 time if the alien demonstrates that he did not receive notice.
5 8 U.S.C. § 1229a(b)(5)(C). Perez-Saurez moved to reopen and
6 rescind his in absentia order fourteen years after it was
7 entered, contending that he did not receive notice of his
8 hearing. The agency did not abuse its discretion in denying
9 that motion.
10 Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii), for rescission
11 due to lack of notice, a movant must demonstrate that he did
12 not receive notice in accordance with 8 U.S.C. § 1229(a)(2).
13 Section 1229(a)(2)(A) requires notice of hearing in person, or,
14 when in-person service is not practicable, service by mail.
15 Service by mail is sufficient if there is proof of attempted
16 delivery to the last address provided by the alien. 8 U.S.C.
17 § 1229(c). If the Government establishes that notice was
18 properly sent to the alien, a rebuttable presumption of receipt
19 applies. Alrefae, 471 F.3d at 358-59.
20 Perez-Saurez conceded that hearing notice was mailed to the
21 address that the immigration court had on file, but argued that
3
1 he rebutted the presumption of receipt because he had not
2 provided the address on file and had never lived there.
3 However, Perez-Saurez filed two change of venue motions, both
4 of which listed the address to which the notice of hearing was
5 mailed and were signed by him; so, he did, in fact, provide the
6 mailing address. He cannot rebut the presumption of receipt
7 based on his own efforts to thwart delivery by not living at
8 the address he provided. See Maghradze v. Gonzales, 462 F.3d
9 150, 153-54 (2d Cir. 2006). The agency therefore did not abuse
10 its discretion in denying the motion to rescind.
11 Perez-Saurez does not deny that he received notice of his
12 hearing date. Instead, he argues that the initial charging
13 document, the Notice to Appear (“NTA”), was not properly served
14 because he was 17 years old at the time of service. As the
15 Government asserts, Perez-Saurez did not exhaust this argument.
16 See Foster v. INS, 376 F.3d 75, 77-78 (2d Cir. 2004). Because
17 Perez-Saurez did not raise this issue before the BIA, and the
18 Government has raised the failure to exhaust, we decline to
19 consider it. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
20 104, 124 (2d Cir. 2007).
21 Perez-Saurez argues that the BIA addressed the issue of
4
1 service of the NTA and thus we can consider it even if it was
2 not properly exhausted. See Xian Tuan Ye v. Dep’t of Homeland
3 Sec., 446 F.3d 289, 296-97 (2d Cir. 2006) (holding that failure
4 to exhaust is excused where BIA considered a claim). However,
5 the BIA did not discuss the regulation allowing for service on
6 a minor older than 14 when the agency considered whether the
7 in absentia removal order should be rescinded: it discussed only
8 the alleged non-receipt of the hearing notice warranted
9 rescission.
10 The background section of the BIA order recited that
11 Perez-Saurez was served with an NTA and cited a case for the
12 proposition that service of an NTA on a minor older than 14 was
13 proper. However, the BIA did not rely on, or even consider,
14 that case or the relevant regulation when declining to reopen
15 proceedings. Because the BIA had already held that the
16 regulation was proper, it had no reason to consider that issue
17 sua sponte, and did not do so. It cited the precedential
18 decision; it did not address the merits of that decision, which
19 is the issue raised for the first time here. See Theodoropoulos
20 v. INS, 358 F.3d 162, 171 (2d Cir. 2004) (“[A]t least one of
21 the purposes served by the exhaustion requirement . . . is to
5
1 ensure that . . . the agency responsible for construing and
2 applying the immigration laws and implementing regulations[]
3 has had a full opportunity to consider a petitioner’s claims
4 before they are submitted for review by a federal court.”). We
5 conclude that there is no reason to deviate from the exhaustion
6 requirement in this case. Even assuming that service was
7 improper, the record shows that both Perez-Saurez and the adult
8 to whose custody he was released received notice sufficient to
9 satisfy due process. See Nolasco v. Holder, 637 F.3d 159, 164
10 (2d Cir. 2011).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DISMISSED as moot. Any pending request for oral argument
16 in this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT:
20 Catherine O=Hagan Wolfe, Clerk
6