Lalvay-Chacha v. Holder

10-4041-ag
Lalvay-Chacha v. Holder
BIA
Straus, IJ
A029 040 975
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.
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 11th day of April, two thousand twelve.
PRESENT:
BARRINGTON D. PARKER,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_______________________________________
SERAFIN LUIS LALVAY-CHACHA,
Petitioner,
v. 10-4041-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Michael Brown, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Linda S. Wernery, Assistant
Director; Walter Bocchini, Trial
Attorney, Office of Immigration
Litigation, Civil Division, 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.
Petitioner Serafin Luis Lalvay-Chacha, a native and
citizen of Ecuador, seeks review of a September 9, 2010,
order of the BIA affirming the December 7, 2009, decision of
Immigration Judge (“IJ”) Michael W. Straus denying his
motion to rescind an in absentia removal order and reopen
his proceedings. In re Serafin Luis Lalvay-Chacha, No. A029
040 975 (B.I.A. Sept. 9, 2010), aff’g No. A029 040 975
(Immig. Ct. N.Y. City Dec. 7, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
of this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions. Zaman v. Mukasey, 514
F.3d 233, 237 (2d Cir. 2008). We review the agency’s denial
of a motion to rescind for abuse of discretion. See Alrefae
v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006).
A deportation order entered in absentia may be
rescinded if the alien shows he did not receive notice of
the hearing. See Lopes v. Gonzales, 468 F.3d 81, 84 (2d
Cir. 2006) (per curiam) (“Lopes I”). There is a slight
presumption of receipt because the record shows the notice
was accurately addressed and mailed. Id. at 85-86. The
agency did not abuse its discretion in concluding that the
circumstantial evidence in this case did not rebut that
presumption.
The BIA reasonably noted that Lalvay-Chacha did not
show that he had an incentive to attend his immigration
court hearing, as he did not have any applications which
could have secured him relief from deportation pending at
the time. Cf. Lopes v. Mukasey, 517 F.3d 156, 160 (2d Cir.
2008) (“Lopes II”) (concluding that alien had incentive to
appear because he had a “vested interest” in an application
filed on his behalf). Moreover, while Lalvay-Chacha hired
an attorney and filed a motion to reopen promptly after he
received notice of the in absentia deportation order, the
record supports the BIA’s conclusion that he did not pursue
his case with sufficient diligence because he did not appeal
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the IJ’s denial of his first motion to reopen but rather
remained in the United States for nineteen years until he
was again placed in removal proceedings. See Lopes I, 468
F.3d at 86 (discussing actions which would suggest that an
alien “is not an absconder”).
For the foregoing reasons, the petition for review is
DENIED. 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 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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