11-5246 BIA Chen v. Holder A073 671 561


### 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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 23 rd** **day of August, two thousand twelve.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 **BARRINGTON D. PARKER,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **TIAN HE CHEN,** 13 Petitioner**,** 14 15 **v. 11-5246** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Scott E. Bratton, Margaret Wong &** 23 **Associates, Cleveland, Ohio.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 26 **General; David V. Bernal, Assistant** 27 **Director; Dara S. Smith, Trial** 28 **Attorney, Office of Immigration** 29 **Litigation, United States Department** 30 **of Justice, Washington, D.C.** 311 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Tian He Chen, a native and citizen of the 6 People’s Republic of China, seeks review of a December 6, 7 2011, order of the BIA denying his motion to reopen and 8 affirming the July 13, 2010, decision of Immigration Judge 9 (“IJ”) Brigitte LaForest denying his motion to rescind a 10 removal order entered in absentia

. In re Tian He Chen, No. 11 A073 671 561 (B.I.A. Dec. 6, 2011), aff’gNo. A073 671 561 12 (Immig. Ct. N.Y.C. July 13, 2010). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 We review the agency’s denial of motions to rescind and 16 reopen for abuse of discretion. See Debeatham v. Holder, 17 602 F.3d 481, 484 (2d Cir. 2010) (per curiam). An order of 18 removal entered in absentiamay be rescinded only upon: 19 (1) a motion filed within 180 days after the date of the 20 order of removal if the alien demonstrates that the failure 21 to appear was because of exceptional circumstances; or (2) a 22 motion to reopen filed at any time if the alien demonstrates 23

2that he did not receive notice as required and the failure 1 to appear was through no fault of his own. 8 U.S.C. 2 § 1229a(b)(5)(C). Because Chen filed his motion more than 3 12 years after the entry of the removal order, he was 4 required to demonstrate that he did not have notice of the 5 proceedings. 6 A rebuttable presumption that an alien received a 7 Notice to Appear (“NTA”) applies where the Government 8 establishes that notice was properly sent to the alien by 9 certified mail. See Bhanot v. Chertoff, 474 F.3d 71, 73 (2d 10 Cir. 2007) (per curiam) (holding that when the government 11 sent notice of petitioner’s changed hearing date to his most 12 recent address, a presumption of receipt applied) ; see also 13 Matter of Grijalva , 21 I. & N. Dec. 27, 37 (B.I.A. 1995) 14 (“[W]here service of a notice of a deportation proceeding is 15 sent by certified mail through the United States Postal 16 Service and there is proof of attempted delivery and 17 notification of certified mail, a strong presumption of 18 effective service arises.”). Here the record includes a 19 return receipt showing that the NTA was delivered to the 20 address Chen provided in his asylum application (and signed 21 for by an individual named Chuck Lee). 22

3Chen argues that the incorrect address listed by the 1 travel agency he hired to prepare his application resulted 2 in him not receiving actual delivery of the NTA, and 3 consequently that his in absentia removal order should be 4 rescinded. Chen’s argument is unavailing as the error is 5 attributable to him and insufficient to “rebut the 6 presumption of proper notice.”Song Jin Wu v. INS, 436 F.3d 7 157, 162 (2d Cir. 2006); see also Hoodho v. Holder, 558 F.3d 8 184, 192 (2d Cir. 2009) (“[A] party who voluntarily chose an 9 attorney as his representative in an action cannot avoid the 10 consequences of the acts or omissions of this freely 11 selected agent.” (internal quotation marks, brackets, and 12 ellipses omitted)). The agency’s finding is consistent with 13 8 U.S.C. § 1229a(b)(5)(C)(ii) (providing for rescission of 14

an in absentia removal order where the alien can demonstrate 15 his failure to appear occurred “through no fault of [his 16 own]”), and the record demonstrates that Chen was, or should 17 have been, aware of the improper address when he signed and 18 dated his asylum application and swore that the contents of 19 the application were “true and correct.” 20 Finally, to the extent that Chen challenges the 21 agency’s decision not to exercise its sua sponte reopening 22

4authority, we are without jurisdiction to review that 1 discretionary decision. See Ali v. Gonzales , 448 F.3d 515, 2 518 (2d Cir. 2006) (per curiam) (a reviewing court lacks 3 jurisdiction to review a decision of the BIA not to reopen a 4

case sua sponteunder 8 C.F.R. § 1003.2(a) because such a 5 decision is “entirely discretionary”). 6 For the foregoing reasons, the petition for review is 7 DENIED. As we have completed our review, any stay of 8 removal that the Court previously granted in this petition 9 is VACATED, and any pending motion for a stay of removal in 10 this petition is DISMISSED as moot. Any pending request for 11 oral argument in this petition is DENIED in accordance with 12 Federal Rule of Appellate Procedure 34(a)(2) and Second 13 Circuit Local Rule 34.1(b). 14

FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16 17 18

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