10-3729-ag

Zhen v. Holder

BIA

A029 806 331

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

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

New York, on the 10th day of November, two thousand eleven.

PRESENT:

JON O. NEWMAN,

ROBERT A. KATZMANN,

DENNY CHIN,

 Circuit Judges.

_________________________________________

ZTHING CHI ZHEN, AKA SHUN-JEN CHEN,

AKA ZHONG QI CHEN,

Petitioner, 

 v. 10-3729-ag

 NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_________________________________________

 

FOR PETITIONER: Theodore N. Cox, New York, N.Y.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Keith I. McManus, Senior

Litigation Counsel; Lindsay M.

Murphy, Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, DC
UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Zthing Chi Zhen, a native and citizen of the

People’s Republic of China, seeks review of an August 31,

2010, decision of the BIA denying his motion to reconsider. 

In re Zthing Chi Zhen, No. A029 806 331 (B.I.A. Aug. 31,

2010). We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

Since Zhen petitions for review of the denial of a

motion to reconsider, but not from the underlying decision

for which reconsideration is sought, we review only the

denial of his motion to reconsider. See Ke Zhen Zhao v.

U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001). 

The BIA’s denial of a motion to reconsider is reviewed for

abuse of discretion. See Jin Ming Liu v. Gonzales, 439 F.3d

109, 111 (2d Cir. 2006). Zhen’s only argument before the

Court is that the BIA abused its discretion in declining to

reconsider its denial of his motion to rescind an

immigration judge’s (“IJ”) in absentia exclusion order. 

A motion to rescind “an order of exclusion in absentia

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must be supported by evidence that the alien had reasonable

cause for his failure to appear.” 8 C.F.R.

§ 1003.23(b)(4)(iii)(B); see also Matter of Haim, 19 I. & N.

Dec. at 641, 642 (BIA 1988). Lack of notice of a hearing

may constitute “reasonable cause” for failure to appear at a

hearing. Cf. 8 C.F.R. § 1003.23(b)(4)(iii)(A) (permitting

rescission of an in absentia deportation order at any time

if the alien did not receive notice of his hearing). When

notice of a hearing is sent by regular mail, the agency may

apply “some presumption of receipt” if “the record

establishes that the notice was accurately addressed and

mailed in accordance with normal office procedures.” Lopes

v. Gonzales, 468 F.3d 81, 85 (2d Cir. 2006) (per curiam). 

This presumption “does no more than [] shift a tie-breaking

burden of proof to the alien claiming non-receipt.” Lopes

v. Mukasey, 517 F.3d 156, 160 (2d Cir. 2008). In turn, the

agency has an obligation to “consider all relevant evidence,

including circumstantial evidence, offered to rebut th[e]

presumption.” Alrefae v. Chertoff, 471 F.3d 353, 359-60 (2d

Cir. 2006)(quoting Lopes, 468 F.3d at 86) (alteration in

original). 

In this case, the record contains an October 22, 1990,

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hearing notice correctly addressed to Zhen’s address of

record. We decline to consider Zhen’s unexhausted

contention that the agency erred in finding that this

hearing notice gave rise to a rebuttable presumption of

receipt of notice, see Lin Zhong v. U.S. Dep’t of Justice,

480 F.3d 104, 119-20 (2d Cir. 2007), and we find that the

agency did not err in determining that Zhen failed to rebut

such a presumption. 

Aside from Zhen’s conclusory assertion in his affidavit

that he did not receive the hearing notice – a claim that he

failed to support with an affidavit in his first motion to

rescind – he provided no evidence demonstrating non-delivery

or improper delivery. Furthermore, while the existence of a

pending application may constitute circumstantial evidence

that “make[s] it less likely that” an alien was motivated to

avoid immigration proceedings, Lopes, 468 F.3d at 86, Zhen

did not have any applications pending for relief at the time

of his 1990 hearing, nor was he then eligible for the forms

of relief he sought in subsequent removal proceedings. The

agency also reasonably found Zhen’s ineffective assistance

of counsel claim to be without merit since there was no

evidence that any attorney entered an appearance in his

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exclusion proceedings or that the agency had sent an

attorney notice of Zhen’s hearing.

Thus, because the agency is not required to find a

movant’s general assertions of non-receipt sufficient to

rebut a presumption of receipt, Alrefae, 471 F.3d at 360,

and because Zhen failed to provide any additional evidence -

circumstantial or otherwise - of non-receipt, the BIA did

not abuse its discretion in declining to find any error in

its decision affirming the IJ’s denial of Zhen’s second

motion to rescind his in absentia exclusion order, see Jin

Ming Liu, 439 F.3d at 111.

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DENIED as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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