Yong-Shao Ma v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3081
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YONG-SHAO MA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A072-495-552)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 10, 2011
Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: March 17, 2011)
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OPINION
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PER CURIAM
Yong-Shao Ma, a native and citizen of China, has been in removal proceedings
since 1992, when he arrived illegally in the United States. In December 1992, Ma
received the Form-122 charging document, which informed him that he would be
required to appear for a hearing before an Immigration Judge (“IJ”). R. 27. The notice
did not specify the hearing date or time. Id. Ma was later mailed a September 13, 1993
hearing notice, scheduling a hearing before the IJ on September 28, 1993. R. 194. Ma
failed to appear and, on September 28, 1993, IJ issued an in absentia removal order.
Approximately fifteen years later,1 after being detained, Ma moved to reopen the
proceedings and to rescind the in absentia removal order pursuant to 8 C.F.R.
„ 1003.23(b)(4)(iii)(B). On December 12, 2008, the IJ issued a short, handwritten order
denying the motion. The IJ noted that Ma conceded service of the charging document
and that the hearing notice was sent to the address that Ma had most recently provided
(the address appearing on two pro se motions for a change of venue filed in February and
March 1993, R. 29, 201).2 The IJ concluded that Ma provided “meager evidence in
support of his motion” and did not “establish >reasonable cause=” for the September 1993
failure to appear. See 8 C.F.R. „ 1003.23(b)(4)(iii)(B) (“A motion to reopen exclusion
hearings on the basis that the Immigration Judge improperly entered an order of
exclusion in absentia must be supported by evidence that the alien had reasonable cause
for his failure to appear.”). Accordingly, the IJ denied the motion. Ma appealed and the
Board of Immigration Appeals (“BIA”) dismissed the appeal.
Ma presents a petition for review of the BIA‟s order. We have jurisdiction
1
In the intervening time, apparently in the late 1990‟s, Ma sought adjustment of
status based upon his first marriage. That application was rejected. Ma‟s first wife died
in 1998.
2
The IJ noted in his decision that the venue change Awas never granted.@
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pursuant to 8 U.S.C. § 1252(a). Review of the BIA‟s decision to deny the motion to
reopen is under a highly deferential abuse of discretion standard. See Guo v. Ashcroft,
386 F. 3d 556, 562 (3d Cir. 2004). The discretionary decision is not disturbed unless it is
found to be arbitrary, irrational, or contrary to law. See id.We cannot conclude that the BIA‟s decision was arbitrary, irrational, or contrary
to law. A motion to reopen seeking rescission of an in absentia removal order must be
filed within 180 days of the removal order and must demonstrate “exceptional
circumstances,” unless it is based upon lack of notice or the individual was in custody at
the time. See INA § 240(b)(5)(C)(i), (ii) [8 U.S.C. § 1229a(b)(5)(C)(i), (ii)]. Ma‟s
motion, filed fifteen years after the in absentia removal order, was clearly not filed within
180 days, and there is no evidence that Ma was in custody at the time. Accordingly, Ma
was required to establish that he did not receive notice of the September 1993 hearing.
See INA § 240(b)(5)(C)(ii) [8 U.S.C. § 1229a(b)(5)(C)(ii)] (a motion to reopen based on
lack of notice may be filed “at any time”).
As the BIA noted, the Immigration Court mailed the September 1993 hearing
notice to the address Ma provided in March 1993. Ordinary mail that is properly sent is
presumed to be received by the addressee. Santana-Gonzalez v. Attorney Gen. of the
United States, 506 F.3d 274, 278 (3d Cir. 2007). An individual may rebut that
presumption by producing sufficient contrary evidence, such as a sworn affidavit
supported by circumstantial evidence corroborating the claim of non-receipt. See id. At
280. The BIA ruled that Ma failed to present evidence sufficient to rebut the presumption
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of receipt. See Matter of M-R-A-, 24 I&N Dec. 665, 674 (BIA 2008).
Among other things, the BIA took note of the fact that Ma failed to submit a
personal affidavit in support of his motion and indeed, provided “no evidence of
nonreceipt of the September 13, 1993, notice of hearing.” Ma complains that the IJ
improperly “categorically” rejected an affidavit submitted by his fiancée, Mei Huang.
However, the IJ and the BIA acknowledged Huang‟s affidavit. Discounting the weight of
the evidence in the affidavit because it was based on hearsay was not impermissible. See
Kiareldeen v. Ashcroft, 273 F.3d 542, 549 (3d Cir. 2001). Furthermore, the affidavit
does not rebut the presumption that Ma received notice of the hearing; it reflects only that
Ma told Huang that he did not receive notice of the deportation order prior to his arrest in
2008. R. 83. In rejecting Ma‟s motion, the BIA also found it persuasive that Ma made
no effort to learn the status of his removal proceedings during the fifteen-year period
following his 1993 motion to change venue.
In short, evidence supports the conclusion that Ma did not prove that he failed to
receive notice of the 1993 hearing. Accordingly, the BIA did not err in affirming the IJ‟s
conclusion that Ma had not shown reasonable cause for his failure to appear at his
hearing. (Also, despite Ma‟s claim to the contrary, the IJ issued a reasoned decision that
addressed the pertinent issues.)
We note that Ma presents other arguments that do not relate to his receipt of the
hearing notice. One argument relates to the I-122 charging document, which he
undisputedly received. Ma cites the version of 8 C.F.R. § 235.6(a) that was effective at
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the time, which, he argues, required that the I-122 notice had to be read and explained to
him in a language he could understand, and that he had to be advised of his right to
representation by counsel. Ma argues that because the agency did not explain in his
native language the consequences of a failure to appear at a scheduled hearing, Ma=s
failure to appear should be excused and the proceedings should be reopened.
However, Ma‟s argument is unconvincing. Ma did not submit any evidence that
he was unable to read or understand the I-122 charging document. The record reflects
that Ma received and understood at least some of the hearing notices sent to him, because
he responded to them by seeking to change venue. R. 34. Indeed, Ma‟s March 1993
venue motion not only demonstrates that he was aware of one of the scheduled hearings,
but also reflects that Ma knew he had the right to obtain counsel, as he expressly states
that he attempted to hire an attorney but could not afford one. See id. Also, he did not
submit evidence to rebut the presumption that the agency complied with the regulation he
cites. See Kephart v. Richardson, 505 F.2d 1085, 1090 (3d Cir. 1974) (“A presumption
of regularity surrounds public officers to the extent that, in the absence of contrary
evidence, a reviewing court assumes that they have properly discharged their official
duties.”)
We have reviewed Ma‟s remaining arguments and conclude that they are without
merit. Accordingly, and for the reasons given above, we will deny his petition for
review.
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