Filed: Jan. 13, 2015
Latest Update: Mar. 02, 2020
Summary: 13-3016 Ng v. Holder BIA Lamb, IJ A088 440 430 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: 13-3016 Ng v. Holder BIA Lamb, IJ A088 440 430 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 ..
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13-3016
Ng v. Holder
BIA
Lamb, IJ
A088 440 430
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 13th day of January, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 SAU LAN NG,
14 Petitioner,
15
16 v. 13-3016
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Chunyu Jean Wang, Flushing, New
25 York.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Stephen J. Flynn, Assistant
29 Director; Karen Stewart, Attorney,
1 Office of Immigration Litigation,
2 Civil Division, United States
3 Department of Justice, Washington
4 D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Sau Lan Ng, a native and citizen of China, seeks review
11 of a July 24, 2013, decision of the BIA affirming the April
12 2, 2012, decision of an Immigration Judge (“IJ”), denying
13 her motion to rescind her in absentia removal order. In re
14 Sau Lan Ng, No. A088 440 430 (B.I.A. July 24, 2013), aff’g
15 No. A088 440 430 (Immig. Ct. N.Y. City Apr. 2, 2012). We
16 assume the parties’ familiarity with the underlying facts
17 and procedural history in this case.
18 Under the circumstances of this case, we have reviewed
19 the IJ’s and BIA’s decisions “for the sake of completeness.”
20 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
21 Cir. 2006). We review the denial of a motion to rescind an
22 in absentia removal order for abuse of discretion. Alrefae
23 v. Chertoff,
471 F.3d 353, 357 (2d Cir. 2006).
24 An in absentia removal order may be rescinded upon a
25 motion to reopen filed within 180 days after the date of the
2
1 removal order if the alien demonstrates that his failure to
2 appear was due to “exceptional circumstances.” 8 U.S.C. §
3 1229a(b)(5)(C)(i). “Exceptional circumstances are defined
4 as ‘circumstances (such as battery or extreme cruelty to the
5 alien or any child or parent of the alien, serious illness
6 of the alien, or serious illness or death of the spouse,
7 child, or parent of the alien, but not including less
8 compelling circumstances) beyond the control of the alien.’”
9 Alrefae, 471 F.3d at 358 (quoting 8 U.S.C. § 1229a(e)(1)).
10 The agency did not abuse its discretion in determining that
11 Ng failed to demonstrate such circumstances.
12 Ng does not dispute that she received oral and written
13 notice of the February 2, 2012, hearing. As the agency
14 concluded, her misreading of that notice did not constitute
15 exceptional circumstances beyond her control. See In re S-
16 M-, 22 I. & N. Dec. 49, 51 (BIA 1998); see also 8 U.S.C.
17 § 1229a(e)(1). The record does not support her contention
18 that the agency failed to consider the totality of the
19 circumstances. She does not point to any evidence that the
20 agency failed to consider that would have supported a
21 finding that her failure to appear was beyond her control.
22
3
1 Ng failed to exhaust before the BIA her argument that
2 the IJ erred in finding that she had conceded removability.
3 See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107
4 n.1, 122 (2d Cir. 2007). Nevertheless, we note that she
5 stated under oath that she entered the United States without
6 inspection or admission as charged in her Notice to Appear.
7 We do not consider her argument that she should have been
8 granted a continuance because she did not raise that
9 argument before the IJ, and the BIA declined to address it
10 on appeal. See Lin
Zhong, 480 F.3d at 122.
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
4
