14-2157 Perez-Saurez v. Lynch BIA Straus, IJ A075 204 658 

### 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 TO 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **24 th**  **day of November, two thousand fifteen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **DENNIS JACOBS,** 8 **PETER W. HALL,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **WILSON PEREZ-SAUREZ,** 13 Petitioner **,** 14 15 **v. 14-2157** 16 **NAC** 17 18 **LORETTA E. LYNCH, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Joshua Bardavid, New York, New York. 24 25 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Brianne 27 Whelan Cohen, Senior Litigation 28 Counsel; Mona Maria Yousif, Trial 292 Attorney, Office of Immigration 1 Litigation, United States 2 Department of Justice, Washington, 3 D.C. 4 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review is 8

DENIED. 9 Petitioner Wilson Perez-Saurez, a native and citizen of 10 Ecuador, seeks review of a May 29, 2014, decision of the BIA 11 affirming an October 24, 2012, decision of an Immigration Judge 12 (“IJ”) denying Perez-Saurez’s motion to rescind his in absentia 13 removal order. In re Wilson Perez-Saurez, No. A075 204 658 14 (B.I.A. May 29, 2014), aff’g No. A075 204 658 (Immig. Ct. 15 Hartford Oct. 24, 2012). We assume the parties’ familiarity 16 with the underlying facts and procedural history in this case. 17 Under the circumstances of this case, we have reviewed the 18 IJ’s decision as supplemented by the BIA. See Yan Chen v. 19 Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). We review the 20 denial of a motion to rescind an in absentia removal order for 21 abuse of discretion. Alrefae v. Chertoff , 471 F.3d 353, 357 22 (2d Cir. 2006). 233 An alien will be ordered removed in absentia if he does not 1 attend his removal hearing. 8 U.S.C. § 1229a(b)(5)(A). 2 However, an in absentia removal order may be rescinded at any 3 time if the alien demonstrates that he did not receive notice. 4 8 U.S.C. § 1229a(b)(5)(C). Perez-Saurez moved to reopen and 5 rescind his in absentia order fourteen years after it was 6 entered, contending that he did not receive notice of his 7 hearing. The agency did not abuse its discretion in denying 8 that motion. 9 Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii), for rescission 10 due to lack of notice, a movant must demonstrate that he did 11 not receive notice in accordance with 8 U.S.C. § 1229(a)(2). 12 Section 1229(a)(2)(A) requires notice of hearing in person, or, 13 when in-person service is not practicable, service by mail. 14 Service by mail is sufficient if there is proof of attempted 15 delivery to the last address p rovided by the alien. 8 U.S.C. 16 § 1229(c). If the Government establishes that notice was 17 properly sent to the alien, a rebuttable presumption of receipt 18 applies. Alrefae , 471 F.3d at 358-59. 19
Perez-Saurez conceded that hearing notice was mailed to the 20 address that the immigration court had on file, but argued that 214 he rebutted the presumption of receipt because he had not 1 provided the address on file and had never lived there. 2 However, Perez-Saurez filed two change of venue motions, both 3 of which listed the address to which the notice of hearing was 4 mailed and were signed by him; so, he did, in fact, provide the 5 mailing address. He cannot rebut the presumption of receipt 6 based on his own efforts to thwart delivery by not living at 7 the address he provided. See Maghradze v. Gonzales , 462 F.3d 8 150, 153-54 (2d Cir. 2006). The agency therefore did not abuse 9 its discretion in denying the motion to rescind. 10 Perez-Saurez does not deny that he received notice of his 11 hearing date. Instead, he argues that the initial charging 12 document, the Notice to Appear (“NTA”), was not properly served 13 because he was 17 years old at the time of service. As the 14
Government asserts, Perez-Saurez did not exhaust this argument. 15
See Foster v. INS , 376 F.3d 75, 77-78 (2d Cir. 2004). Because 16 Perez-Saurez did not raise this issue before the BIA, and the 17 Government has raised the failure to exhaust, we decline to 18 consider it. See Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 19 104, 124 (2d Cir. 2007). 20 Perez-Saurez argues that the BIA addressed the issue of 215 service of the NTA and thus we can consider it even if it was 1 not properly exhausted. See Xian Tuan Ye v. Dep’t of Homeland 2
Sec. , 446 F.3d 289, 296-97 (2d Cir. 2006) (holding that failure 3 to exhaust is excused where BIA considered a claim). However, 4 the BIA did not discuss the regulation allowing for service on 5 a minor older than 14 when the agency considered whether the 6 in absentia removal order should be rescinded: it discussed only 7 the alleged non-receipt of the hearing notice warranted 8 rescission. 9 The background section of the BIA order recited that 10 Perez-Saurez was served with an NTA and cited a case for the 11 proposition that service of an NTA on a minor older than 14 was 12 proper. However, the BIA did not rely on, or even consider, 13 that case or the relevant reg ulation when declining to reopen 14 proceedings. Because the BIA had already held that the 15 regulation was proper, it had no reason to consider that issue 16 sua sponte, and did not do so. It cited the precedential 17 decision; it did not address the merits of that decision, which 18 is the issue raised for the first time here. See Theodoropoulos 19
v. INS , 358 F.3d 162, 171 (2d Cir. 2004) (“[A]t least one of 20 the purposes served by the exhaustion requirement . . . is to 216 ensure that . . . the agency responsible for construing and 1 applying the immigration laws and implementing regulations[] 2 has had a full opportunity to consider a petitioner’s claims 3 before they are submitted for review by a federal court.”). We 4 conclude that there is no reason to deviate from the exhaustion 5 requirement in this case. Even assuming that service was 6 improper, the record shows that both Perez-Saurez and the adult 7 to whose custody he was released received notice sufficient to 8 satisfy due process. See Nolasco v. Holder , 637 F.3d 159, 164 9 (2d Cir. 2011). 10 For the foregoing reasons, the petition for review is 11 DENIED. As we have completed our rev iew, any stay of removal 12 that the Court previously granted in this petition is VACATED, 13 and any pending motion for a stay of removal in this petition 14 is DISMISSED as moot. Any pending request for oral argument 15 in this petition is DENIED in accordance with Federal Rule of 16 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 17 34.1(b). 18
FOR THE COURT: 19 Catherine O = Hagan Wolfe, Clerk 20