09-2148-ag

Chen v. Holder

BIA

A070 897 027

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 18 day of February, two thousand ten. th

5

6 PRESENT:

7 ROBERT D. SACK,

8 REENA RAGGI,

9 GERARD E. LYNCH,

10 Circuit Judges. 

11 _______________________________________

12

13 SHU MEI CHEN,

14 Petitioner, 

15

16 v. 09-2148-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Yung H. Hsu, New York, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General, Jennifer J. Keeney, Senior

27 Litigation Counsel, Judith R.

28 O’Sullivan, Trial Attorney, Office

29 of Immigration Litigation, Civil

30 Division, United States Department

31 of Justice, Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is DENIED.

5 Petitioner Shu Mei Chen, a native and citizen of the

6 People’s Republic of China, seeks review of the April 23,

7 2009, order of the BIA denying her motion to reopen. In re

8 Shu Mei Chen, No. A 070 897 027 (B.I.A. Apr. 23, 2009). We

9 assume the parties’ familiarity with the underlying facts

10 and procedural history of the case.

11 The BIA did not abuse its discretion in denying Chen’s

12 untimely motion to reopen proceedings that resulted in an

13 order of deportation entered when she failed to appear at

14 her March 1998 merits hearing. See Ali v. Gonzales, 448

15 F.3d 515, 517 (2d Cir. 2006). 

16 Motions to reopen in absentia orders are governed by

17 different rules depending on whether the movant seeks to

18 rescind the order or present new evidence. See Song Jin Wu

19 v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-, 22 I.

20 & N. Dec. 349, 353-55 (BIA 1998) (en banc). Accordingly,

21 when, as here, an alien files a motion that seeks both

22 rescission of an in absentia deportation order, as well as
3

1 reopening of deportation proceedings based on new evidence,

2 we treat the motion as comprising distinct motions to

3 rescind and to reopen. Alrefae v. Chertoff, 471 F.3d 353,

4 357 (2d Cir. 2006); see also Maghradze v. Gonzales, 462 F.3d

5 150, 152 n.1 (2d Cir. 2006). We address each motion in

6 turn.

7 I. Motion to Rescind 

8 When an IJ orders an alien deported in absentia, there

9 is no time limit on filing a motion to reopen if the alien

10 can establish that he had reasonable cause for his failure

11 to appear. Matter of N-B-, 22 I. & N. Dec. 590 (BIA 1999)

12 (en banc); Matter of Ruiz, 20 I. & N. Dec. 91, 92-93 (BIA

13 1989). “A motion to reopen exclusion hearings on the basis

14 that the [IJ] improperly entered an order of exclusion in

15 absentia must be supported by evidence that the alien had

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

17 § 1003.23(b)(4)(iii)(B). Here, however, the BIA correctly

18 found that Chen failed to demonstrate “reasonable cause.” 

19 Chen argues that she failed to appear because the travel

20 agency she was working with did not inform her of the

21 hearing date. However, the BIA found that she was

22 personally served with notice of the hearing. Moreover, the
4

1 BIA rejected Chen’s argument on the additional ground that,

2 in blaming her failure to appear on ineffective assistance

3 from her advisors, she failed to comply with the Lozada

4 requirements. See Chupina v. Holder, 570 F.3d 99, 101-02

5 (2d Cir. 2009) (discussing the requirements set forth in

6 Matter of Lozada, 19 I. & N Dec. 637, 639 (BIA 1988)). Chen

7 fails to address either of these dispositive findings, which

8 are well supported in the record. This failure is fatal to

9 her challenge to the BIA’s denial of her motion to rescind. 

10 See 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii);

11 Matter of Lozada, 19 I. & N. Dec. at 639.

12 II. Motion to Reopen

13 Nor did the BIA abuse its discretion in denying Chen’s

14 motion construed as a motion to reopen. The regulations

15 provide that “a party may file only one motion to reopen

16 deportation or exclusion proceedings . . . and that motion

17 must be filed no later than 90 days after the date on which

18 the final administrative decision was rendered in the

19 proceeding sought to be reopened, or on or before September

20 30, 1996, whichever is later.” 8 C.F.R. § 1003.2(c)(2). 

21 Chen’s March 2009 motion was indisputably untimely because

22 she filed it more than a decade after the IJ’s March 1998 in
5

1 absentia order. However, the time limitation does not apply

2 when the alien can establish materially “changed

3 circumstances arising in the country of nationality.” 8

4 C.F.R. § 1003.2(c)(3)(ii). 

5 Here, although Chen asserted in her motion that she was

6 eligible for asylum, the BIA correctly denied her motion

7 because she made no argument that country conditions in

8 China had changed. Before this Court, Chen waives any

9 challenge to the BIA’s denial of her motion for this reason. 

10 See Yueqing Zhang v. Gonzalez, 426 F.3d 540, 542 n.1, 546

11 n.7 (2d Cir. 2008). Accordingly, we have no reason to

12 disturb the BIA’s April 2009 order.

13 For the foregoing reasons, the petition for review is

14 DENIED. As we have completed our review, any pending motion

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

16 Any pending request for oral argument in this petition is

17 DENIED in accordance with Federal Rule of Appellate

18 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

19 FOR THE COURT: 

20 Catherine O’Hagan Wolfe, Clerk

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