Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney

*

General Eric H. Holder Jr., is automatically substituted for former Attorney

General Michael B. Mukasey as respondent in this case.

08-3145-ag

Weng v. Holder

BIA

A73 572 973

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

4 New York, on the 16 day of February, two thousand ten. th

5

6 PRESENT:

7 GUIDO CALABRESI,

8 ROSEMARY S. POOLER,

9 ROBERT A. KATZMANN,

10 Circuit Judges. 

11 _________________________________________

12

13 ZHEN SHUI WENG,

14 Petitioner, 

15

16 v. 08-3145-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,*

20 Respondent.

21 _________________________________________

22 

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2

1 FOR PETITIONER: Robert J. Adinolfi, Louis & Adinolfi,

2 LLC, New York, N.Y.

3

4 FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney

5 General; Linda S. Wernery, Assistant

6 Director; James E. Grimes, Senior

7 Litigation Counsel, Office of

8 Immigration Litigation, United States

9 Department of Justice, Washington,

10 D.C.

11

12 UPON DUE CONSIDERATION of this petition for review of a

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

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

15 is DENIED.

16 Petitioner Zhen Shui Weng, a native and citizen of the

17 People’s Republic of China, seeks review of the May 29, 2008

18 order of the BIA denying his motion to reissue. In re Zhen

19 Shui Weng, No. A73 572 973 (B.I.A. May 29, 2008). We assume

20 the parties’ familiarity with the underlying facts and

21 procedural history of the case.

22 We treat motions to reissue as motions to reopen,

23 reviewing the agency’s denial of a motion to reissue for

24 abuse of discretion, and the agency’s findings of fact under

25 the substantial evidence standard. See Ping Chen v. U.S.

26 Att’y Gen., 502 F.3d 73, 75 (2d Cir. 2007). In this case,

27 the BIA did not abuse its discretion in denying Weng’s

28 motion to reissue its July 2007 decision.
3

1 The agency’s regulations require the BIA to serve

2 decisions by “physically presenting or mailing [the]

3 document to the appropriate party.” 8 C.F.R. § 1003.13. 

4 “Once the BIA has performed its duty of serving the order,

5 the time for appeal and motions to reopen begins to run,

6 even if the order miscarries in the mail or the alien does

7 not receive it for some other reason that is not the BIA’s

8 fault.” Ping Chen, 502 F.3d at 76-77. Thus, contrary to a

9 case in which the alien asserts that he or she did not

10 receive notice of a hearing, see Lopes v. Gonzales, 468 F.3d

11 81, 85 (2d Cir. 2006), it is the agency’s service of the

12 order, not the alien’s receipt of the order, that is

13 dispositive in this case, see Ping Chen, 502 F.3d at 77. 

14 Evidence of non-receipt is not irrelevant; however, it

15 serves only as circumstantial evidence as to the question of

16 whether the order was actually served. Id. Moreover, “the

17 BIA may reasonably accord less weight to an affidavit of

18 non-receipt than to its own records establishing that the

19 order was in fact mailed.” Ping Chen, 502 F.3d at 77. 

20 As the BIA properly mailed its July 2007 decision to

21 Weng’s attorney of record, the BIA did not abuse in

22 according Weng’s attorney’s affidavit of non-receipt less
4

1 weight than its own records. See id. Accordingly, the BIA

2 did not abuse its discretion in denying Weng’s motion to

3 reissue. See id.

4 For the foregoing reasons, the petition for review is

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

6 removal that the Court previously granted in this petition

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

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

9 oral argument in this petition is DENIED in accordance with

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

11 Circuit Local Rule 34(b).

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe, Clerk

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