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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 23rd 4 day of August, two thousand twelve.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 BARRINGTON D. PARKER,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 _____________________________________

12

13 TIAN HE CHEN,

14 Petitioner, 

15

16 v. 11-5246

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Scott E. Bratton, Margaret Wong &

24 Associates, Cleveland, Ohio. 

25

26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

27 General; David V. Bernal, Assistant

28 Director; Dara S. Smith, Trial

29 Attorney, Office of Immigration

30 Litigation, United States Department

31 of Justice, Washington, D.C.
1

2 UPON DUE CONSIDERATION of this petition for review of a

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

4 ORDERED, ADJUDGED, AND DECREED that the petition for review

5 is DENIED. 

6 Petitioner Tian He Chen, a native and citizen of the

7 People’s Republic of China, seeks review of a December 6,

8 2011, order of the BIA denying his motion to reopen and

9 affirming the July 13, 2010, decision of Immigration Judge

10 (“IJ”) Brigitte LaForest denying his motion to rescind a

11 removal order entered in absentia. In re Tian He Chen, No.

12 A073 671 561 (B.I.A. Dec. 6, 2011), aff’g No. A073 671 561

13 (Immig. Ct. N.Y.C. July 13, 2010). We assume the parties’

14 familiarity with the underlying facts and procedural history

15 in this case. 

16 We review the agency’s denial of motions to rescind and

17 reopen for abuse of discretion. See Debeatham v. Holder,

18 602 F.3d 481, 484 (2d Cir. 2010) (per curiam). An order of

19 removal entered in absentia may be rescinded only upon:

20 (1) a motion filed within 180 days after the date of the

21 order of removal if the alien demonstrates that the failure

22 to appear was because of exceptional circumstances; or (2) a

23 motion to reopen filed at any time if the alien demonstrates

2
1 that he did not receive notice as required and the failure

2 to appear was through no fault of his own. 8 U.S.C.

3 § 1229a(b)(5)(C). Because Chen filed his motion more than

4 12 years after the entry of the removal order, he was

5 required to demonstrate that he did not have notice of the

6 proceedings.

7 A rebuttable presumption that an alien received a

8 Notice to Appear (“NTA”) applies where the Government

9 establishes that notice was properly sent to the alien by

10 certified mail. See Bhanot v. Chertoff, 474 F.3d 71, 73 (2d

11 Cir. 2007) (per curiam) (holding that when the government

12 sent notice of petitioner’s changed hearing date to his most

13 recent address, a presumption of receipt applied); see also

14 Matter of Grijalva, 21 I. & N. Dec. 27, 37 (B.I.A. 1995)

15 (“[W]here service of a notice of a deportation proceeding is

16 sent by certified mail through the United States Postal

17 Service and there is proof of attempted delivery and

18 notification of certified mail, a strong presumption of

19 effective service arises.”). Here the record includes a

20 return receipt showing that the NTA was delivered to the

21 address Chen provided in his asylum application (and signed

22 for by an individual named Chuck Lee). 

3
1 Chen argues that the incorrect address listed by the

2 travel agency he hired to prepare his application resulted

3 in him not receiving actual delivery of the NTA, and

4 consequently that his in absentia removal order should be

5 rescinded. Chen’s argument is unavailing as the error is

6 attributable to him and insufficient to “rebut the

7 presumption of proper notice.” Song Jin Wu v. INS, 436 F.3d

8 157, 162 (2d Cir. 2006); see also Hoodho v. Holder, 558 F.3d

9 184, 192 (2d Cir. 2009) (“[A] party who voluntarily chose an

10 attorney as his representative in an action cannot avoid the

11 consequences of the acts or omissions of this freely

12 selected agent.” (internal quotation marks, brackets, and

13 ellipses omitted)). The agency’s finding is consistent with

14 8 U.S.C. § 1229a(b)(5)(C)(ii) (providing for rescission of

15 an in absentia removal order where the alien can demonstrate

16 his failure to appear occurred “through no fault of [his

17 own]”), and the record demonstrates that Chen was, or should

18 have been, aware of the improper address when he signed and

19 dated his asylum application and swore that the contents of

20 the application were “true and correct.”

21 Finally, to the extent that Chen challenges the

22 agency’s decision not to exercise its sua sponte reopening

4
1 authority, we are without jurisdiction to review that

2 discretionary decision. See Ali v. Gonzales, 448 F.3d 515,

3 518 (2d Cir. 2006) (per curiam) (a reviewing court lacks

4 jurisdiction to review a decision of the BIA not to reopen a

5 case sua sponte under 8 C.F.R. § 1003.2(a) because such a

6 decision is “entirely discretionary”). 

7 For the foregoing reasons, the petition for review is

8 DENIED. As we have completed our review, any stay of

9 removal that the Court previously granted in this petition

10 is VACATED, and any pending motion for a stay of removal in

11 this petition is DISMISSED as moot. Any pending request for

12 oral argument in this petition is DENIED in accordance with

13 Federal Rule of Appellate Procedure 34(a)(2) and Second

14 Circuit Local Rule 34.1(b).

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe, Clerk

17

18

5