08-6120-ag
    Sanchez-Perez v. Holder



                              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
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         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 15th day of January, two thousand ten.

    PRESENT:
                      WILFRED FEINBERG,
                      ROBERT A. KATZMANN,
                                Circuit Judges,
                      T.S. ELLIS III,*
                                District Judge.


    Jose Abraham Sanchez-Perez,

                      Petitioner,

                      v.                                  08-6120-ag

    Eric H. Holder, Jr.,
    U.S. Attorney General,** et al.,

                      Respondents.


             *
          T.S. Ellis III, Senior Judge of the United States District
    Court for the Eastern District of Virginia, sitting by
    designation.
             **
           Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
    United States Attorney General Eric H. Holder, Jr., is
    substituted for former Attorney General Michael B. Mukasey as
    Respondent in this case.
FOR PETITIONER:        Jose Abraham Sanchez-Perez, pro se, Bronx,
                       NY.

FOR RESPONDENTS:       Tony West, Assistant Attorney General, Civil
                       Division; Barry J. Pettinato, Assistant
                       Director, Office of Immigration Litigation;
                       Terri León-Benner, Trial Attorney, Office of
                       Immigration Litigation, Civil Division, U.S.
                       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 and

motion for a stay of removal are DENIED.

     Petitioner Jose Abraham Sanchez-Perez, a native and citizen

of the Dominican Republic, seeks review of the November 14, 2008

order of the BIA denying his motion to reopen.     In re Jose

Abraham Sanchez-Perez, No. A073 510 370 (B.I.A. Nov. 14, 2008).

We assume the parties’ familiarity with the underlying facts and

procedural history of the case.

     We review the BIA’s denial of a motion to reopen for abuse

of discretion.     Ali v. Gonzales, 

, 517 (2d Cir. 2006)

(citing INS v. Doherty, 

, 322-23 (1992)).

     Sanchez-Perez filed his motion to reopen, challenging the

BIA’s affirmation of the immigration judge’s (“IJ”) decision

denying a motion to reopen his proceedings following entry of a

deportation order entered in absentia in 1997. Sanchez-Perez

asserted that his application to adjust status should be reviewed



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because he had not received notice of the hearing, following

which the IJ entered the in absentia order.

     The BIA denied Sanchez-Perez’s motion to reopen filed on

September 16, 2008, as untimely filed following the prior BIA

order, entered June 11, 2008, affirming the IJ’s denial of the

motion to reopen the proceedings.   As Sanchez-Perez filed the

motion more than 90 days after the prior BIA order and provided

no explanation for any delay or exception from the timing

requirement, it was not an abuse of discretion for the BIA to

deny the motion.   See 8 C.F.R. § 1003.2(c)(2), (3).

     Moreover, the administrative record establishes that there

is no merit to Sanchez-Perez’s underlying claim that he had not

received notice of the hearing, thus entitling him to reopening

or rescission of the in absentia order.   The hearing notice in

the record was personally served on Sanchez-Perez and his counsel

at a hearing and Sanchez-Perez’s affidavit confirms that he

received the notice.   Contrary to his argument in this Court,

there is no requirement that notice be made by certified mail.

See 8 U.S.C. § 1229(a)(2)(A) (providing that service by mail is

required where “personal service is not practicable.”).   Because

Sanchez-Perez moved to reopen his proceedings ten years after

entry of the in absentia order, any motion to reopen or rescind

was untimely given that the record clearly establishes that he

had received notice of the hearing.   See 8 U.S.C. § 1252b(c)(3)

(1996) (providing, absent lack of notice, a 180-day period for
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challenging an in absentia order via a motion to reopen or

rescind); 8 C.F.R. 1003.2(c)(2), (3) (providing absent a relevant

exception, a 90-day period for a filing a motion to reopen).

     We have considered all of Sanchez-Perez’s arguments and

determined them to be without merit.

     For the foregoing reasons, the petition for review and

motion for a stay of removal are DENIED.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk


                              By:__________________________




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