10-2567-ag
    Phagoo v. Holder
                                                                                  BIA
                                                                               Hom, IJ
                                                                          A073 564 910
                        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 17th day of August, two thousand twelve.

    PRESENT:
             JON O. NEWMAN,
             ROSEMARY S. POOLER,
             GERARD E. LYNCH,
                  Circuit Judges.1
    _____________________________________

    KIRTIMATI PHAGOO,
             Petitioner,

                       v.                                  10-2567-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Judy Resnick, Law Office of Judy
                                  Resnick, Far Rockaway, N.Y.



             1
           The Honorable Roger J. Miner, who had originally
    been assigned to this panel, died on February 18, 2012.                     The
    Honorable Jon O. Newman has substituted for him on the
    panel.
FOR RESPONDENT:        Tony West, Assistant Attorney
                       General; Greg D. Mack, Senior
                       Litigation Counsel; Richard
                       Zanfardino, 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

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

    Kirtimati Phagoo, a native and citizen of Guyana, seeks

review of a June 21, 2010, order of the BIA affirming the

April 2, 2010, decision of Immigration Judge (“IJ”) Sandy K.

Hom, which denied Phagoo’s motion to rescind an in absentia

deportation order and to re-open her proceedings.    In re

Phagoo, No. A073 564 910 (B.I.A. June 21, 2010), aff’g No.

A73-564-910 (Immig. Ct. N.Y.C. Apr. 2, 2010).   We assume the

parties’ familiarity with the underlying facts of this case

and the arguments raised on appeal.

    Under the circumstances of this case, we review the

IJ’s decision as the final agency determination.    See Li v.

Mukasey, 

, 146 (2d Cir. 2008).   “[W]e . . .

construe [Phagoo’s] motion to rescind the in absentia

removal order and to reopen proceedings on the basis of new


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evidence as comprising two distinct motions, which we review

under different substantive standards.”    Alrefae v.

Chertoff, 

, 357 (2d Cir. 2006).    “When the BIA

has applied the correct law, we review the decision to deny

a motion to reopen or a motion to rescind for abuse of

discretion.”   Maghradze v. Gonzales, 

, 152 (2d

Cir. 2006).

    In denying Phagoo’s motion to rescind her in absentia

deportation order, the IJ did not err in concluding that

Phagoo failed to demonstrate that she did not receive proper

notice of her deportation proceedings.    Even though Phagoo

claimed in her affidavit that she never received notice of

the proceedings, postal receipts suggested otherwise.    Cf.

Lopes v. Gonzalez, 

, 85 (2d Cir. 2006) (per

curiam).

    Moreover, the IJ did not improperly conclude that

Phagoo failed to demonstrate “changed country conditions” in

Guyana that would have permitted her to file a motion to

reopen that would have otherwise been untimely.    8 U.S.C. §

1229a(c)(7)(C)(ii).




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    Accordingly, the petition for review is DENIED and

Phagoo’s motion for a stay is DISMISSED as moot.   In

addition, Phagoo’s request for oral argument in this case is

denied.   See Fed. R. App. P. 34(a)(2).



                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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