16-1061 Quishpin v. Sessions BIA Cheng, IJ A088 769 715 

### 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 **6 th**  **day of April, two thousand seventeen.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **JOSÉ A. CABRANES,** 8 **BARRINGTON D. PARKER,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **SEGUNDO PABLO QUISHPIN,** 13 Petitioner **,** 14 15 **v. 16-1061** 16 **NAC** 17 **JEFFERSON B. SESSIONS III, UNITED** 18 **STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** H. Raymond Fasano, New York, NY. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 25 Assistant Attorney General; Terri J. 26 Scadron, Assistant Director; Lisa M. 27 Damiano, Trial Attorney, Office of 28 Immigration Litigation, United 29 States Department of Justice, 30 Washington, DC. 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Segundo Pablo Quishpin, a native and citizen of 5 Ecuador, seeks review of a March 8, 2016, decision of the BIA 6 affirming a September 22, 2014, decision of an Immigration Judge 7 (“IJ”) denying Quishpin’s motion to rescind his removal order 8 entered in absentia. In re Segundo Pablo Quishpin , No. A088 9 769 715 (B.I.A. Mar. 8, 2016), aff’g No. A088 769 715 (Immig. 10 Ct. N.Y. City Sept. 22, 2014). We assume the parties’ 11 familiarity with the underlying facts and procedural history 12 in this case. 13 We have reviewed both the IJ’s and the BIA’s opinions “for 14 the sake of completeness.” Wangchuck v. Dep’t of Homeland 15

Sec. , 448 F.3d 524, 528 (2d Cir. 2006). We review the agency’s 16 denial of a motion to rescind for abuse of discretion. Alrefae 17

v. Chertoff , 471 F.3d 353, 357 (2d Cir. 2006). 18 An order of removal entered in absentia “may be rescinded 19 . . . upon a motion to reopen filed at any time if the alien 20 demonstrates that the alien did not receive notice . . . and 21 the failure to appear was through no fault of the alien.” 22 8 U.S.C. § 1229a(b)(5)(C)(ii). When the Government 233 establishes that a hearing notice was sent to an alien in 1 accordance with established procedures, the agency may apply 2 a “slight presumption of receipt.” Silva-Carvalho Lopes v. 3 Mukasey , 517 F.3d 156, 160 (2d Cir. 2008). “[T]o determine 4 whether the slight presumption of receipt of regular mail has 5

more probably than not been overcome,” the agency “must consider 6 all of the petitioner’s evidence (circumstantial or otherwise) 7 in a practical fashion, guided by common sense.” Id. The 8 agency may consider, among other factors and evidence, the 9 following: 10 (1) the respondent’s affidavit; (2) affidavits from 11 family members or other individuals who are 12 knowledgeable about the facts relevant to whether 13 notice was received; (3) the respondent’s actions upon 14 learning of the in absentia order, and whether due 15 diligence was exercised in seeking to redress the 16 situation; (4) any prior affirmative application for 17 relief, indicating that the respondent had an 18 incentive to appear; (5) any prior application for 19 relief filed with the Immigration Court or any prima 20 facie evidence in the record or the respondent’s 21 motion of statutory eligibility for relief, 22 indicating that the respondent had an incentive to 23 appear; (6) the respondent’s previous attendance at 24 Immigration Court hearings, if applicable; and (7) any 25 other circumstances or evidence indicating possible 26 nonreceipt of notice. 27 28 Matter of M-R-A- , 24 I. & N. Dec. 665, 674 (B.I.A. 2008). 29 The agency reasonably applied the slight presumption that 30 Quishpin received notice of his hearing given evidence that the 31 agency sent a hearing notice to the address he had provided 324 immigration officials. See Silva-Carvalho Lopes , 517 F.3d at 1 160. And the agency did not err in concluding that Quishpin 2 failed to rebut this presumption. Quishpin and his brother 3 submitted affidavits that made conclusory assertions of 4 nonreceipt. But they did not explain why Quishpin had provided 5 a Queens address on his release from immigration detention in 6 2010 if he was living in the Bronx, or describe any action he 7 took in his removal proceedings in the almost five years that 8 passed between his personal receipt of the Notice to Appear, 9 which placed him in removal proceedings and informed him of his 10 responsibility to update his address, and his filing of a motion 11 to rescind. For aliens who receive notice of their obligation 12 to inform the immigration court of any change in address and 13 of the consequences of failing to do so in a Notice to Appear, 14 the “requirement that an alien ‘receive’ notice [is] 15 constructively satisfied if notice is properly provided and the 16 alien changes address without informing the [agency].” 17 Maghradze v. Gonzales , 462 F.3d 150, 154 (2d Cir. 2006). 18 The agency also reasonably found troubling that Quishpin 19 failed to inquire into the status of his removal proceedings 20 or apply for relief in those proceedings for five years. See 21

Matter of M-R-A- , 24 I. & N. Dec. at 674. And although he 22 applied for asylum, withholding of removal, and relief under 235 the Convention Against Torture (“CAT”) in conjunction with his 1 motion to rescind, the agency reasonably concluded that his 2 claim—that an unnamed individual had threatened him to induce 3 him to join a gang more than five years earlier—was insufficient 4 to demonstrate his prima facie eligibility for that relief. * 5 Therefore, given that Quishpin failed to inquire about or apply 6 for relief in his proceedings for years and then failed to 7 establish his prima facie eligibility for relief, he did not 8 demonstrate that he had incentive to appear at his hearing and 9 would have done so had he received notice. See Matter of 10

M-R-A- , 24 I. & N. Dec. at 674. 11 Accordingly, because Quishpin failed to provide any basis 12 to conclude that he had not received the hearing notice sent 13

to his address of record, the agency did not abuse its discretion 14 in declining to rescind his in absentia removal order. See 15 8 U.S.C. § 1229a(b)(5)(C)(ii); see also Silva-Carvalho Lopes , 16 *See 8 U.S.C. § 1158(a)(2)(B) (requiring asylum application to be filed within one year of arrival); see also Ci Pan v. U.S. Att’y General , 449 F.3d 408, 412-13 (2d Cir. 2006) (recognizing that unfulfilled threats do not constitute persecution); INS v. Elias-Zacarias , 502 U.S. 478, 482 (1992)(holding that forced recruitment is not basis for asylum absent evidence of targeting on account of political opinion); Matter of S-E-G- , 24 I. & N. Dec. 579, 582-88 (BIA 2008) (holding that individuals resistant to gang recruitment were not a cognizable particular social group); Mu-Xing Wang v. Ashcroft , 320 F.3d 130, 144 (2d Cir. 2003) (holding that CAT relief requires evidence that someone in applicant’s “particular alleged circumstances is more likely than not to be tortured”).6 517 F.3d at 160; Matter of M-R-A- , 24 I. & N. Dec. at 674. 1 For the foregoing reasons, the petition for review is 2 DENIED. As we have completed our rev iew, any stay of removal 3 that the Court previously granted in this petition is VACATED, 4 and any pending motion for a stay of removal in this petition 5 is DISMISSED as moot. Any pending request for oral argument 6 in this petition is DENIED in accordance with Federal Rule of 7 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 8 34.1(b). 9

FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11