Tian He Chen v. Holder

11-5246 BIA
Chen v. Holder A073 671 561
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
4 New York, on the 23rd day of August, two thousand twelve.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 TIAN HE CHEN,
14 Petitioner,
15
16 v. 11-5246
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Scott E. Bratton, Margaret Wong &
24 Associates, Cleveland, Ohio.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; David V. Bernal, Assistant
28 Director; Dara S. Smith, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Petitioner Tian He Chen, a native and citizen of the
7 People’s Republic of China, seeks review of a December 6,
8 2011, order of the BIA denying his motion to reopen and
9 affirming the July 13, 2010, decision of Immigration Judge
10 (“IJ”) Brigitte LaForest denying his motion to rescind a
11 removal order entered in absentia. In re Tian He Chen, No.
12 A073 671 561 (B.I.A. Dec. 6, 2011), aff’g No. A073 671 561
13 (Immig. Ct. N.Y.C. July 13, 2010). We assume the parties’
14 familiarity with the underlying facts and procedural history
15 in this case.
16 We review the agency’s denial of motions to rescind and
17 reopen for abuse of discretion. See Debeatham v. Holder,
18 602 F.3d 481, 484 (2d Cir. 2010) (per curiam). An order of
19 removal entered in absentia may be rescinded only upon:
20 (1) a motion filed within 180 days after the date of the
21 order of removal if the alien demonstrates that the failure
22 to appear was because of exceptional circumstances; or (2) a
23 motion to reopen filed at any time if the alien demonstrates
2
1 that he did not receive notice as required and the failure
2 to appear was through no fault of his own. 8 U.S.C.
3 § 1229a(b)(5)(C). Because Chen filed his motion more than
4 12 years after the entry of the removal order, he was
5 required to demonstrate that he did not have notice of the
6 proceedings.
7 A rebuttable presumption that an alien received a
8 Notice to Appear (“NTA”) applies where the Government
9 establishes that notice was properly sent to the alien by
10 certified mail. See Bhanot v. Chertoff, 474 F.3d 71, 73 (2d
11 Cir. 2007) (per curiam) (holding that when the government
12 sent notice of petitioner’s changed hearing date to his most
13 recent address, a presumption of receipt applied); see also
14 Matter of Grijalva, 21 I. & N. Dec. 27, 37 (B.I.A. 1995)
15 (“[W]here service of a notice of a deportation proceeding is
16 sent by certified mail through the United States Postal
17 Service and there is proof of attempted delivery and
18 notification of certified mail, a strong presumption of
19 effective service arises.”). Here the record includes a
20 return receipt showing that the NTA was delivered to the
21 address Chen provided in his asylum application (and signed
22 for by an individual named Chuck Lee).
3
1 Chen argues that the incorrect address listed by the
2 travel agency he hired to prepare his application resulted
3 in him not receiving actual delivery of the NTA, and
4 consequently that his in absentia removal order should be
5 rescinded. Chen’s argument is unavailing as the error is
6 attributable to him and insufficient to “rebut the
7 presumption of proper notice.” Song Jin Wu v. INS, 436 F.3d
8 157, 162 (2d Cir. 2006); see also Hoodho v. Holder, 558 F.3d
9 184, 192 (2d Cir. 2009) (“[A] party who voluntarily chose an
10 attorney as his representative in an action cannot avoid the
11 consequences of the acts or omissions of this freely
12 selected agent.” (internal quotation marks, brackets, and
13 ellipses omitted)). The agency’s finding is consistent with
14 8 U.S.C. § 1229a(b)(5)(C)(ii) (providing for rescission of
15 an in absentia removal order where the alien can demonstrate
16 his failure to appear occurred “through no fault of [his
17 own]”), and the record demonstrates that Chen was, or should
18 have been, aware of the improper address when he signed and
19 dated his asylum application and swore that the contents of
20 the application were “true and correct.”
21 Finally, to the extent that Chen challenges the
22 agency’s decision not to exercise its sua sponte reopening
4
1 authority, we are without jurisdiction to review that
2 discretionary decision. See Ali v. Gonzales, 448 F.3d 515,
3 518 (2d Cir. 2006) (per curiam) (a reviewing court lacks
4 jurisdiction to review a decision of the BIA not to reopen a
5 case sua sponte under 8 C.F.R. § 1003.2(a) because such a
6 decision is “entirely discretionary”).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot. Any pending request for
12 oral argument in this petition is DENIED in accordance with
13 Federal Rule of Appellate Procedure 34(a)(2) and Second
14 Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
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