Filed: Jun. 15, 2011
Latest Update: Feb. 22, 2020
Summary: 10-1393-ag Chen v. Holder BIA A075 405 071 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 “SU
Summary: 10-1393-ag Chen v. Holder BIA A075 405 071 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 “SUM..
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10-1393-ag
Chen v. Holder
BIA
A075 405 071
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 15th day of June, two thousand eleven.
5
6 PRESENT:
7 ROGER J. MINER,
8 GUIDO CALABRESI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 ______________________________________
12
13 XIAOYONG CHEN, AKA XIAO-YONG CHEN,
14 Petitioner,
15 10-1393-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Theodore N. Cox, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Daniel E. Goldman, Senior
27 Litigation Counsel; Jonathan
28 Robbins, Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
32
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, Xiaoyong Chen, a native and citizen of the
7 People’s Republic of China, seeks review of a March 16, 2010
8 decision of the BIA denying his motion to rescind an in
9 absentia order and reopen his removal proceedings. In re
10 Xiaoyong Chen, No. A075 405 071 (B.I.A. March 16, 2010). We
11 assume the parties’ familiarity with the underlying facts
12 and procedural history of the case.
13 When, as here, an alien files a motion that seeks both
14 to rescind an in absentia order of deportation and to reopen
15 proceedings based on new evidence, we treat the motion as
16 comprising distinct motions to rescind and to reopen. See
17 Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); see
18 also Maghradze v. Gonzales,
462 F.3d 150, 152 n.1 (2d Cir.
19 2006). We address separately each of Chen’s motions below,
20 reviewing the BIA’s decision for abuse of discretion. See
21
Alrefae, 471 F.3d at 357; Kaur v. BIA,
413 F.3d 232, 233 (2d
22 Cir. 2005) (per curiam).
23
2
1 I. Motion to Rescind
2 An in absentia order of deportation may be rescinded
3 outside the 180-day time limitation “if the alien
4 demonstrates that he or she did not receive notice” of his
5 removal hearing. 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2).
6 Where, as here, the notice of hearing “‘is sent by certified
7 mail through the United States Postal Service and there is
8 proof of attempted delivery and notification of certified
9 mail, a strong presumption of effective service arises.’”
10 See Alrefae, 471 F.3d at 357 (quoting Matter of Grijalva, 21
11 I. & N. Dec. 27, 37 (B.I.A. 1995)). The presumption of
12 effective service may be rebutted, if, in addition to
13 evidence of non-delivery, there is “‘substantial and
14 probative evidence . . . demonstrating . . . that
15 nondelivery was not due to the respondent’s failure to
16 provide an address where he could receive mail.’” Fuentes-
17 Argueta v. INS,
101 F.3d 867, 871 (2d Cir. 1996) (quoting
18 Grijalva, 21 I. & N. Dec. at 37) (internal alterations
19 omitted).
20 Chen points to no evidence, and there is none in the
21 record, that would compel the conclusion that the
22 non-delivery of the notice of hearing was not due to his own
3
1 failure to provide a correct address. Accordingly, the BIA
2 did not abuse its discretion in concluding that Chen failed
3 to rebut the presumption of adequate notice.
4 II. Motion to Reopen
5 In denying Chen’s motion to reopen, the BIA did not err
6 in applying a 90-day time limit, and, because the motion was
7 untimely, mandating a showing of changed country conditions.
8 See Maghradze, 462 F.3d at 156 (holding that the BIA did not
9 err in denying a motion to reopen, accompanied by a motion
10 to rescind, based on a lack of evidence of changed country
11 conditions). None of the evidence proffered by Chen would
12 require a finding of changed country conditions, either with
13 respect to his claims concerning sterilization or with
14 respect to his claims concerning the Chinese government’s
15 treatment of underground churches. Accordingly, the BIA did
16 not abuse its discretion in denying the motion to reopen.
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
4
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
5
