Hua Guo Peng v. Holder

10-3621-ag
Peng v. Holder
BIA
A073 629 530
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 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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of New
4 York, on the 15th day of September, two thousand eleven.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _________________________________________
12
13 HUA GUO PENG,
14 Petitioner,
15
16 v. 10-3621-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Eric Zheng, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney General;
26 Anthony P. Nicastro, Senior Litigation
27 Counsel; Joanna L. Watson, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department of
30 Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Hua Guo Peng, a native and citizen of China,
6 seeks review of an August 11, 2010, decision of the BIA
7 denying his motion to rescind and reopen. In re Hua Guo Peng,
8 No. A073 629 530 (B.I.A. Aug. 11, 2010). We assume the
9 parties’ familiarity with the underlying facts and procedural
10 history of the case.
11 Motions to reopen removal proceedings in which an alien
12 was ordered removed in absentia are governed by different
13 rules depending on whether the movant seeks to rescind the in
14 absentia removal order or present new evidence of his
15 eligibility for relief. See Song Jin Wu v. INS, 436 F.3d 157,
16 163 (2d Cir. 2006); In re M-S-, 22 I. & N. Dec. 349, 353-55
17 (B.I.A. 1998) (en banc). Accordingly, when, as here, an alien
18 files a motion that seeks both rescission of an in absentia
19 removal order, as well as reopening of removal proceedings
20 based on new evidence, we treat the motion as comprising
21 distinct motions to rescind and to reopen. See Alrefae v.
22 Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); see also Maghradze
2
1 v. Gonzales, 462 F.3d 150, 152 n.1 (2d Cir. 2006). We review
2 the denial of a motion to rescind an in absentia removal order
3 under the same abuse of discretion standard applicable to
4 motions to reopen. See Alrefae, 471 F.3d at 357; see also
5 Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).
6 When the BIA considers relevant evidence of country conditions
7 in evaluating a motion to reopen, we review the BIA’s factual
8 findings under the substantial evidence standard. See Jian
9 Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). We
10 review de novo questions of law and the application of law to
11 undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99,
12 110-11 (2d Cir. 2008).
13 A. BIA’s Jurisdiction
14 The BIA did not err in exercising jurisdiction over
15 Peng’s motion. An immigration judge (“IJ”) may “reopen or
16 reconsider any case in which he or she has made a decision,
17 unless jurisdiction is vested with the Board of Immigration
18 Appeals.” 8 C.F.R. § 1003.23(b)(1); see also Matter of
19 Patino, 23 I. & N. Dec. 74, 76 (BIA 2001) (stating that “until
20 such time as an appeal is properly before the Board, the
21 Immigration Judge has continuing jurisdiction to entertain
22 motions regarding proceedings that were previously before the
3
1 Immigration Judge”). Jurisdiction to reopen, reconsider, or
2 rescind vests with the BIA in “any case in which it has
3 rendered a decision.” 8 C.F.R. § 1003.2(a). Because the BIA
4 issued a decision in Peng’s proceedings in 2007, jurisdiction
5 had vested with the BIA when he filed his second motion in
6 2009. See id.7 B. Motion to Rescind
8 Peng argues that his in absentia removal order should
9 have been rescinded because he did not receive notice of his
10 hearing due to his immigration consultant’s misconduct in
11 providing his own, not Peng’s, address on the asylum
12 application. An order of removal entered in absentia may be
13 rescinded at any time if the alien demonstrates that he did
14 not receive notice as required. 8 U.S.C. § 1229a(b)(5)(C)(ii);
15 8 C.F.R. § 1003.23(b)(4)(ii). Based on a prior decision of
16 this Court in Peng’s proceedings, the law of the case doctrine
17 is that Peng is presumed to have received notice of his
18 hearing by certified mail delivery of a Notice to Appear. See
19 United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 2002)
20 (“The law of the case ordinarily forecloses relitigation of
21 issues expressly or impliedly decided by the appellate
22 court.”) (internal quotation marks omitted). A presumption of
4
1 receipt may be overcome by an assertion of non-delivery or
2 improper delivery if supported by “substantial and probative
3 evidence such as documentary evidence from the Postal Service,
4 third party affidavits, or other similar evidence . . . . ”
5 Matter of Grijalva, 21 I. & N. Dec. 27, 37 (BIA 1995); cf.
6 Lopes v. Gonzales, 468 F.3d 81, 86 (2d Cir. 2006) (providing
7 that a less stringent standard applies in the context of
8 regular mail, and that the agency’s failure to consider all
9 the evidence relevant to petitioner’s claim of non-receipt was
10 an abuse of discretion).
11 The BIA reasonably rejected Peng’s claim that he did not
12 receive the Notice to Appear because he submitted evidence
13 contradicting his argument that the Notice was sent to his
14 immigration consultant. See Matter of Grijalva, 21 I. & N.
15 Dec. at 37 (finding that “[a] bald and unsupported denial of
16 receipt of certified mail notices is not sufficient to support
17 a motion to reopen to rescind an in absentia order”).
18 Accordingly, the BIA did not abuse its discretion in declining
19 to rescind the in absentia removal order. See 8 U.S.C.
20 § 1229a(b)(5)(C).
21 C. Motion to Reopen
22 The BIA also did not abuse its discretion in denying
5
1 Peng’s motion to reopen as untimely. An alien may file only
2 one motion to reopen and must do so within 90 days of the
3 agency’s final administrative decision. 8 U.S.C.
4 § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). Although Peng’s
5 motion to reopen was indisputably untimely because it was
6 filed more than eleven years after the IJ’s in absentia
7 removal order, see 8 U.S.C. § 1229a(c)(7)(C)(i), there is no
8 time limitation for filing a motion to reopen if it is “based
9 on changed country conditions arising in the country of
10 nationality or the country to which removal has been ordered,
11 if such evidence is material and was not available and would
12 not have been discovered or presented at the previous
13 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
14 § 1003.2(c)(3)(ii).
15 The BIA did not abuse its discretion in finding that
16 Peng’s new membership in the China Democracy Party (“CDP”)
17 constituted a change in his personal circumstances, rather
18 than a change in country conditions sufficient to excuse the
19 untimely filing of his motion to reopen. See Li Yong Zheng v.
20 U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005)
21 (explaining that a change in “personal circumstances in the
22 United States” did not constitute a change in country
6
1 conditions excusing the filing deadline for motions to
2 reopen). We do not consider the evidence Peng discusses in
3 his brief because it was not included in the record before the
4 agency. See 8 U.S.C. § 1252(b)(4)(A) (providing that this
5 Court must “decide the petition only on the administrative
6 record on which the order of removal is based”). In any
7 event, the BIA did not err in finding that Peng’s evidence,
8 which included a World Journal article that was not translated
9 from Chinese to English, copies of photographs of unidentified
10 CDP protestors, and a list of CDP political prisoners, did not
11 identify a change in conditions in China. Because the record
12 does not compel the conclusion that the treatment of CDP
13 members in China had changed materially since the time of
14 Peng’s 1998 proceedings before the IJ, see 8 U.S.C.
15 § 1229a(c)(7)(C)(ii); see also Jian Hui Shao, 546 F.3d at 169,
16 the BIA did not abuse its discretion in denying Peng’s motion
17 to reopen as untimely, see 8 U.S.C. § 1229a(c)(7)(C)(i); see
18 also 8 C.F.R. § 1003.2(c)(3)(ii).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of removal
21 that the Court previously granted in this petition is VACATED,
22 and any pending motion for a stay of removal in this petition
7
1 is DISMISSED as moot. Any pending request for oral argument in
2 this petition is DENIED in accordance with Federal Rule of
3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
4 34(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8