Yun-Zhen Ma v. Holder , 358 F. App'x 283 ( 2009 )

08-4532-ag
Ma v. Holder
BIA
Chew, IJ
A073 524 435
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
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BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 28 th day of December, two thousand nine.
PRESENT:
JON O. NEWMAN,
RALPH K. WINTER,
REENA RAGGI,
Circuit Judges.
_________________________________________
YUN-ZHEN MA,
Petitioner,
v. 08-4532-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, 1 UNITED STATES
DEPARTMENT OF JUSTICE,
Respondents.
_________________________________________
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as a respondent in this case.
FOR PETITIONER: Norman Kwai Wing Wong, New York, New
York.
FOR RESPONDENTS: Tony West, Assistant Attorney
General; Leslie McKay, Assistant
Director; Kelly J. Walls, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED in part and DISMISSED in part.
Petitioner Yun-Zhen Ma, a native and citizen of the
People’s Republic of China, seeks review of the August 19,
2008 order of the BIA, affirming the May 2, 2007 decision of
Immigration Judge (“IJ”) George T. Chew, denying her motion
to reopen. In re Yun-Zhen Ma, No. A073 524 435 (BIA Aug.
19, 2008), aff’g No. A073 524 435 (Immig. Ct. N.Y. City May
2, 2007). 1 We assume the parties’ familiarity with the
1
While this appeal was pending, the BIA denied Ma’s
simultaneous motion to reconsider its August 19, 2008 order.
Because Ma did not petition for review of the denial of her
motion for reconsideration, we review only the August 19,
2008 order. See Alam v. Gonzales, 438 F.3d 184, 186 (2d
Cir. 2006); see also Stone v. INS, 514 U.S. 386, 393-94
(1995) (requiring alien to petition for review of motion to
reconsider); Khouzam v. Ashcroft, 361 F.3d 161, 167 (2d Cir.
2004) (holding that BIA had jurisdiction to reconsider
initial decision after petition for review was filed).
2
underlying facts and procedural history of the case.
1. Standard of Review
Motions to rescind in absentia removal orders are
distinct from motions to reopen removal proceedings based
on, inter alia, 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). Because Ma sought both
types of relief, we treat her motion as comprising separate
applications to rescind and to reopen. Alrefae v. Chertoff,
471 F.3d 353, 357 (2d Cir. 2006); see also Maghradze v.
Gonzales, 462 F.3d 150, 152 n.1 (2d Cir. 2006).
When the BIA agrees with the decision of the IJ and
supplements the IJ’s decision, we review the decision of the
IJ as supplemented by the BIA. See Yan Chen v. Gonzales,
417 F.3d 268, 271 (2d Cir. 2005). We review the denial of
both a motion to rescind and a motion to reopen for abuse of
discretion. See Alrefae, 471 F.3d at 357; Kaur v. BIA, 413
F.3d 232, 233-34 (2d Cir. 2005). When the BIA considers
relevant evidence of country conditions in evaluating a
motion to reopen, we review the BIA’s factual findings for
substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d
138, 169 (2d Cir. 2008).
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2. Motion to Rescind
Ma submits that her in absentia deportation order may
be rescinded because “she did not receive notice” of her
deportation hearing. 8 C.F.R. § 1003.23(b)(4)(iii)(A).
When, as in this case, “‘service of a notice of a
deportation proceeding is sent by certified mail through the
United States Postal Service and there is proof of attempted
delivery and notification of certified mail, a strong
presumption of effective service arises.’” Alrefae, 471
F.3d at 359 (quoting In re Grijalva, 21 I. & N. Dec. 27, 37
(BIA 1995)). The presumption “may be overcome . . . [when
the movant] present[s] substantial and probative evidence
such as documentary evidence from the Postal Service, third
party affidavits, or other similar evidence demonstrating
that there was improper delivery or that nondelivery was not
due to the respondent’s failure to provide an address where
he could receive mail.” In re Grijalva, 21 I. & N. Dec. at
37.
We need not decide whether the BIA improperly engaged
in de novo factfinding by determining that the IJ’s failure
to address Ma’s notice challenge was harmless, see 8 C.F.R.
§ 1003.1(d)(3)(i), because we conclude that it would be
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futile, in any event, to remand this case to the BIA, see
Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d
Cir. 2005) (“[W]e are not required to remand where there is
no realistic possibility that, absent the errors, the IJ or
BIA would have reached a different conclusion.”). The
record contains evidence that the Immigration Court sent Ma
notice of her hearing by certified mail to the address of
record for her attorney and Ma never provided any evidence
to the agency demonstrating nondelivery or her attorney’s
failure to notify her of the hearing. See In re Grijalva,
21 I. & N. Dec. at 37. 2
In her brief to this court, Ma suggests that certified
mail addressed to her “previous attorney, Mr. Porges” was
insufficient to put her on notice. Pet’r’s Br. at 16. But
there is no indication in the record that Ma retained other
counsel before the notice was mailed or that she informed
2
We have jurisdiction to consider whether Ma
demonstrated that she had not received notice of her
February 1996 hearing because, although she abandoned any
such argument before the BIA, the BIA found that Ma’s
attorney of record had received notice of her hearing by
certified mail and noted that she did not assert that her
attorney had failed to notify her of her hearing date. See
Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 296-97
(2d Cir. 2006) (holding that when BIA addresses issues not
raised by petitioner, those issues are considered exhausted
and may be reviewed by this court).
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the agency of this fact. Moreover, Ma’s allegation that
“Mr. Porges has been convicted of illegal and unethical
legal practices,” id. at 17, is insufficient to permit the
BIA to rescind her removal order. While ineffective
assistance of counsel may constitute “exceptional
circumstances” permitting rescission, see Aris v. Mukasey,
517 F.3d 595, 596, 600 (2d Cir. 2008), Ma’s motion was filed
well after the 180-day deadline for motions to rescind under
8 C.F.R. § 1003.23(b)(4)(iii)(A)(1), and we are directed to
no evidence showing that Ma exercised due diligence
justifying equitable tolling, see Iavorski v. INS, 232 F.3d
124, 134 (2d Cir. 2000).
Accordingly, to the extent Ma challenges the BIA’s
denial of her motion to rescind, we deny the petition for
review.
3. Motion to Reopen
We lack jurisdiction to consider Ma’s unexhausted claim
that the BIA violated her due process rights. See 8 U.S.C.
§ 1252(d)(1); see also Karaj v. Gonzales, 462 F.3d 113, 119
(2d Cir. 2006); Grullon v. Mukasey, 509 F.3d 107, 115 (2d
Cir. 2007) (finding that “there is no ‘manifest injustice’
exception to [8 U.S.C.] § 1252(d)’s exhaustion
6
requirement”). Accordingly, we dismiss the petition for
review to the extent that Ma raises a due process claim. 3
The agency did not abuse its discretion in denying Ma’s
motion to reopen as untimely. An alien must file a motion
to reopen “within 90 days of the date of entry of a final
administrative order of removal, deportation, or exclusion,
or on or before September 31, 1996, whichever is later.”
8 C.F.R. § 1003.23(b)(1). There is no dispute that Ma’s
April 2006 motion to reopen was untimely because it was
filed more than nine years after September 31, 1996.
Although there is no time limitation for an alien who did
not receive notice of her hearing to file a motion to
rescind an in absentia deportation order, see 8 C.F.R.
§ 1003.23(b)(4)(iii)(A)(2), the agency did not err in
applying the 90-day deadline insofar as she moved to reopen
proceedings based on new evidence. See Alrefae, 471 F.3d at
357.
3
We recognize that the BIA may not consider
constitutional arguments. Nevertheless, Ma was required to
exhaust such argument because the BIA was able to provide
her with the requested relief, i.e., consideration of her
motion to reopen to pursue her new asylum application. See
Theodoropoulos v. INS, 358 F.3d 162, 172-73 (2d Cir. 2004)
(recognizing that there may be limited exceptions to the
statutory exhaustion requirement for claims that would offer
the party no possibility of obtaining any type of relief).
7
There is also no time limit for filing a motion to
reopen if it is “based on changed country conditions arising
in the country of nationality or the country to which
removal has been ordered.” 8 C.F.R. § 1003.23(b)(4)(i). Ma
abandons any challenge to the agency’s finding that she
failed to demonstrate changed conditions in China excusing
the untimely filing of her motion to reopen. See Yueqing
Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.
2005) (deeming insufficiently argued issues waived).
Rather, Ma argues only that she established her prima facie
eligibility for relief based on the birth of her United
States citizen children, and this is insufficient to qualify
for the 8 C.F.R. § 1003.23(b)(4)(i) exception. See Yong
Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d
Cir. 2005) (distinguishing changed country conditions from
changed “personal circumstances in the United States”
(emphasis in original)); see also Wei Guang Wang v. BIA, 437
F.3d 270, 274 (2d Cir. 2006) (“[I]t would be ironic, indeed,
if petitioners . . . who have remained in the United States
illegally following an order of deportation, were permitted
to have a second and third bite at the apple simply because
they managed to . . . have children while evading
authorities. This apparent gaming of the system in an
8
effort to avoid deportation is not tolerated by the existing
regulatory scheme.”). Moreover, we have previously reviewed
the agency’s analysis of evidence similar to that which Ma
submitted in this case and concluded that the agency does
not err in finding that such evidence does not demonstrate
either material changed country conditions or a reasonable
possibility of forced sterilization. See Jian Hui Shao, 546
F.3d at 158-73.
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part. As we have completed
our review, any stay of removal that the Court previously
granted in this petition is VACATED, and any pending motion
for a stay of removal in this petition is DISMISSED as moot.
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate
Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:___________________________
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