P urs uan t t o F ede ral Ru le of App ell ate Pr oce dur e 4 3(c )(2 ), Att orn ey * Gen era l E ric H. Ho lde r J r., is au tom ati cal ly sub sti tut ed for fo rme r A tto rne y Gen era l M ich ael B. Mu kas ey as res pon den t i n t his ca se. 08

- 31 45

- ag W eng v . H o lder B IA A73 572 973 

## UNITE D STA TES C OURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY O RDE R

RUL ING S B Y S UMM

ARYOR DER DONO T H

AVE PR ECE DEN TIAL E FFE CT. C ITATION T O A SU MMA RY OR DER FIL E D O N O R AFT ER JANUAR Y 1 , 2 007 , I S P ERM ITT ED AND IS GO VER NED BYFE DER

AL RUL E O F APP ELL ATE PR OCE DUR E 3 2.1 AND T HIS COURT ’S LOCAL RUL E 32. 1.1 . WHE N CIT INGA SUM MAR Y ORDE R IN A D OCU

MEN T F ILE D W ITHTH IS COURT, A PARTY MUS T CIT E E ITHER THE FE DER AL APP END IX OR AN ELE CTR ONI C DATA

BAS E (WI TH THE NOTATI ON “SU MMA RY ORD ER” ). A PARTY CIT INGA SUM MAR Y ORDE R MUS T S ERV

E A CO PY OF IT ON ANYPA RTYNO T R

EPR ESE NTE D B Y C OUN SEL . 

### 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 23 24 25 26 27

### 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 1 2 UPON DUE CONSIDERATION of this petition for review of a 1 3 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 4 ORDERED, ADJUDGED, AND DECREED, that the petition for review 1 5 is DENIED. 1 6 Petitioner Zhen Shui Weng, a native and citizen of the 1 7 People’s Republic of China, seeks review of the May 29, 2008 1 8 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 2 0 the parties’ familiarity with the underlying facts and 2 1 procedural history of the case. 2 2 We treat motions to reissue as motions to reopen, 2 3 reviewing the agency’s denial of a motion to reissue for 2 4 abuse of discretion, and the agency’s findings of fact under 2 5 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, 2 7 the BIA did not abuse its discretion in denying Weng’s 2 8 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 1 0 receive notice of a hearing, see Lopes v. Gonzales , 468 F.3d 1 1 81, 85 (2d Cir. 2006), it is the agency’s service of the 1 2 order, not the alien’s receipt of the order, that is 1 3 dispositive in this case, see Ping Chen , 502 F.3d at 77. 1 4 Evidence of non-receipt is not irrelevant; however, it 1 5 serves only as circumstantial evidence as to the question of 1 6 whether the order was actually served. Id. Moreover, “the 1 7 BIA may reasonably accord less weight to an affidavit of 1 8 non-receipt than to its own records establishing that the 1 9 order was in fact mailed.” Ping Chen , 502 F.3d at 77. 2 0 As the BIA properly mailed its July 2007 decision to 2 1 Weng’s attorney of record, the BIA did not abuse in 2 2 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.

For the foregoing reasons, the petition for review is 4 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 1 0 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 1 Circuit Local Rule 34(b). 1 2 FOR THE COURT: 1 3 Catherine O’Hagan Wolfe, Clerk 14 15 16 17