11-2994-ag

He v. Holder

BIA

A076 096 507

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 17th day of August, two thousand twelve.

PRESENT:

JOSÉ A. CABRANES,

GERARD E. LYNCH,

SUSAN L. CARNEY,

Circuit Judges.

_____________________________________

JING RONG HE,

Petitioner, 

 v. 11-2994-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_____________________________________

 

FOR PETITIONER: Meer M. M. Rahman, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney General;

Melissa Neiman-Kelting, Senior

Litigation Counsel; Stefanie Notarino

Hennes, Trial Attorney, Office of

Immigration Litigation, United States

Department of Justice, Washington, D.C.
2

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

DISMISSED in part and DENIED in part.

Petitioner Jing Rong He, a native and citizen of the

People’s Republic of China, seeks review of a June 28, 2011

decision of the BIA denying his motion to rescind and reopen. 

In re Jing Rong He, No. A076 096 507 (B.I.A. June 28, 2011). 

We assume the parties’ familiarity with the underlying facts

and procedural history of the case.

Motions to reopen removal proceedings in which an alien

was ordered removed in absentia are governed by different

rules depending on whether the movant seeks to rescind the in

absentia removal order or present new evidence of his

eligibility for relief. See Song Jin Wu v. INS, 436 F.3d 157,

163 (2d Cir. 2006); In re M-S-, 22 I. & N. Dec. 349, 353-55

(B.I.A. 1998) (en banc). Accordingly, where, as here, an

alien files a motion that seeks both rescission of an in

absentia removal order as well as reopening of removal

proceedings based on new evidence, we treat the motion as

comprising distinct motions to rescind and to reopen. See

Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); see

also Maghradze v. Gonzales, 462 F.3d 150, 152 n.1 (2d Cir.

2006). We review the denial of a motion to rescind an in
3

absentia removal order under the same abuse-of-discretion

standard applicable to motions to reopen. See Alrefae, 471

F.3d at 357; see also Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

2005) (per curiam). 

A. Motion to Rescind

We have reviewed both the IJ’s and the BIA’s opinions

“for the sake of completeness.” Zaman v. Mukasey, 514 F.3d

233, 237 (2d Cir. 2008) (per curiam). An order of removal

entered in absentia may be rescinded only upon: (1) a motion

filed within 180 days after the date of the order of removal

if the alien demonstrates that the failure to appear was

because of exceptional circumstances; or (2) a motion to

reopen filed at any time if the alien demonstrates that he did

not receive notice as required or demonstrates that he was in

federal or state custody and the failure to appear was through

no fault of his own. 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R. 

§ 1003.23(b)(4)(ii).

The agency did not abuse its discretion in denying He’s

motion to rescind because it reasonably determined that He

failed to establish that he had not received notice of his

October 1999 hearing. See 8 U.S.C. § 1229a(b)(5)(C)(ii). 

When notice is sent by regular mail, the agency may apply a

“slight” rebuttable presumption of receipt if “the record

establishes that the notice was accurately addressed and
4

mailed in accordance with normal office procedures.” Lopes v.

Gonzales, 468 F.3d 81, 85-86 (2d Cir. 2006) (per curiam)

(“Lopes I”). This presumption “does no more than to shift a

tie-breaking burden of proof to the alien claiming nonreceipt.” Lopes v. Mukasey, 517 F.3d 156, 160 (2d Cir. 2008)

(“Lopes II”). In turn, the agency has an obligation to

“consider all relevant evidence, including circumstantial

evidence, offered to rebut th[e] presumption.” Lopes I, 468

F.3d at 86.

Here, the record shows that He was served in August 1999

with a Notice to Appear (“NTA”) sent by regular mail to “5106

7th Avenue #3R Brooklyn, NY 11220-0000.” Because He does not

challenge the accuracy of the address listed on the NTA, and

because the NTA had been sent by regular mail in accordance

with established Department of Justice procedures, the agency

correctly determined that there was a “slight” rebuttable 

presumption of receipt of notice, see Lopes I, 468 F.3d at

85-86, and therefore properly shifted the burden to He to

rebut the presumption, see Lopes II, 517 F.3d at 160.

In finding that He failed to rebut this presumption, the

agency determined that the factors weighing against He’s claim

of non-receipt (i.e., that He had previously received

correspondence from the New York Asylum Office at the same

address to which the NTA was mailed, and that he waited more
5

than ten years, until after he became eligible for an

alternative form of relief, to seek to rescind the in absentia

removal order) outbalanced the sole factor weighing in favor

of He’s claim of non-receipt (i.e., He’s affidavit stating

that he did not receive notice of his hearing and that he had

“no motive or intent to evade the government”). See In re MR-A-, 24 I. & N. Dec. 665, 674-76 (B.I.A. 2008). Although He

argues that his affidavit should suffice to overcome the

presumption of receipt, the agency considered and balanced all

the factors relevant to He’s case, and reasonably concluded

that the factors adverse to He’s claim of non-receipt

outweighed the factors favorable to his claim. See id. at

674; Lopes I, 468 F.3d at 85-86 (stating that because “an

affidavit of non-receipt might be insufficient by itself to

rebut the presumption,” the BIA must consider “all relevant

evidence”). 

Furthermore, although He alleges that he became aware of

the in absentia order of removal only after he consulted with

an attorney about applying for adjustment of status in June

2010, and that he diligently moved to rescind the in absentia

removal order the following month, He did not submit an

affidavit from his attorney, or any other individual with

knowledge of the relevant facts, corroborating his account of

the circumstances that led him to discover the in absentia
6

removal order. Nor did He allege that he took any steps to

inquire about his asylum application, or his immigration

status generally, during the ten-year period before the

priority date on his mother’s visa petition became current.

See In re M-R-A-, 24 I. & N. at 674. 

Because the agency reasonably concluded that He failed to

rebut the slight presumption that he had received notice of

his October 1999 hearing, it did not abuse its discretion in

denying He’s motion to rescind the in absentia removal order.

See 8 U.S.C. § 1229a(b)(5)(C)(ii); see also Alrefae, 471 F.3d

at 359-60.

B. Motion to Reopen

An alien may file only one motion to reopen and must do

so within 90 days of the agency’s final administrative

decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). 

To the extent that the BIA construed He’s 2010 motion as a

motion to reopen to apply for adjustment of status, the BIA

properly found that the 2010 motion was untimely because it

was filed more than ten years after the IJ’s in absentia

removal order in 1999. See 8 U.S.C. § 1229a(c)(7)(C)(i). The

BIA also properly found that He’s eligibility for adjustment

of status did not constitute an exception to the applicable

time limitation on motions to reopen. See 8 U.S.C. 
7

§ 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3); see also In re

Yauri, 25 I. & N. Dec. 103, 105 (B.I.A. 2009). Further, even

if we were to construe his motion as one invoking the BIA’s

authority to reopen his proceedings sua sponte, we would lack

jurisdiction to review the BIA’s discretionary decision not to

exercise that authority. See Mahmood v. Holder, 570 F.3d 466,

469 (2d Cir. 2009); Ali v. Gonzales, 448 F.3d 515, 517 (2d

Cir. 2006). 

For the foregoing reasons, the petition for review is

DISMISSED in part and DENIED in part. As we have completed

our review, the pending motion for a stay of removal in this

petition is DISMISSED as moot.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk