Pursuant to Federal Rule of Appellate Procedure 1

43(c)(2), Attorney General Eric H. Holder, Jr., is

automatically substituted for former Attorney General

Michael B. Mukasey.

08-3252-ag (L); 08-4061-ag (Con)

Yu v. Holder

BIA

Hom, IJ

A029 125 873

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 21 day of April, two thousand ten. st

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 GUIDO CALABRESI,

10 DEBRA ANN LIVINGSTON,

11 Circuit Judges. 

12 _______________________________________

13

14 JHEN SHING YU, aka HERAWAN SANUSI,

15 aka JIAN XIN YU,

16 Petitioner, 

17

18 v. 08-3252-ag (L);

19 08-4061-ag (Con)

20 NAC

21 ERIC H. HOLDER JR., UNITED STATES

22 ATTORNEY GENERAL,1

23 Respondent.

24 _______________________________________
2

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

2

3 FOR RESPONDENT: Michael F. Hertz, Acting Assistant

4 Attorney General; Emily Anne

5 Radford, Assistant Director; Aviva

6 L. Poczter, Senior Litigation

7 Counsel, Office of Immigration

8 Litigation, United States Department

9 of Justice, Washington, D.C.

10

11 UPON DUE CONSIDERATION of these consolidated petitions

12 for review of two Board of Immigration Appeals (“BIA”)

13 decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that

14 the petitions for review are DENIED. 

15 Petitioner Jhen Shing Yu, a native and citizen of the

16 People’s Republic of China, seeks review of: (1) the June

17 24, 2008, order of the BIA denying his appeal of an

18 Immigration Judge’s (“IJ’s”) April 2, 2008, order denying

19 his motion to reopen, In re Jhen Shing Yu, No. A029 125 873

20 (B.I.A. June 24, 2008), aff’g No. A029 125 873 (Immig. Ct.

21 N.Y. City Apr. 2, 2008); and (2) the August 8, 2008, order

22 of the BIA denying his subsequent motion to reopen, In re

23 Jhen Shing Yu, No. A029 125 873 (B.I.A. Aug. 08, 2008). We

24 assume the parties’ familiarity with the underlying facts

25 and procedural history in this case.

26 We review the BIA’s denial of a motion to reopen for

27 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
3

1 Cir. 2005) (per curiam). There is no dispute that Yu’s

2 March and July 2008 motions to reopen were untimely and

3 number-barred because he was ordered excluded in absentia in

4 June 1993. See 8 C.F.R. § 1003.2(c)(2) (providing that an

5 alien seeking to reopen proceedings may file one motion to

6 reopen no later than 90 days after the date on which the

7 final administrative decision was rendered). However, there

8 is no time limit for motions to reopen either alleging

9 asylum eligibility based on changed country conditions, see

10 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.

11 § 1229a(c)(7)(C)(ii), or seeking rescission of an in

12 absentia exclusion order based on “reasonable cause” for the

13 failure to appear, see 8 C.F.R. § 1003.23(b)(4)(iii)(B). 

14 I. Dkt. No. 08-3252-ag (L)

15 Motions to reopen in absentia orders are governed by

16 different rules depending on whether the movant seeks to

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

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

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

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

21 rescission of an in absentia exclusion order, as well as

22 reopening of proceedings based on new evidence, the Court
4

1 treats the motion as comprising distinct motions to rescind

2 and to reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d

3 Cir. 2006); see also Maghradze v. Gonzales, 462 F.3d 150,

4 152 n.1 (2d Cir. 2006).

5 A. Motion to Rescind

6 In order to reopen exclusion proceedings, an alien must

7 establish that he had “reasonable cause” for his absence

8 from the proceedings. See Matter of Haim, 19 I. & N. Dec.

9 641, 642 (BIA 1988). Failure to receive notice can

10 constitute such reasonable cause. 8 C.F.R. §

11 1003.23(b)(4)(iii). 

12 In his March 2008 motion to reopen, Yu claimed that his

13 attorney never informed him of his hearing because the

14 attorney himself did not receive notice. The BIA rejected

15 that argument, finding that notice had been properly served

16 by certified mail to the address counsel had provided. 

17 Before this Court, Yu does not challenge the BIA’s finding

18 that notice to his attorney constituted notice to him. See

19 Song Jin Wu, 436 F.3d at 162 (finding that notice to an

20 alien’s attorney of record constitutes notice to the alien). 

21 Rather, Yu asserts that his counsel never informed him of

22 his hearing date, which established “reasonable cause” for
5

1 his absence. However, as the BIA indicated, Yu’s March 2008

2 motion to rescind did not claim ineffective assistance of

3 counsel. Instead, Yu argued in that motion that former

4 counsel also never received notice, an argument he has

5 abandoned. The BIA did not abuse its discretion in denying

6 Yu’s March 2008 motion to rescind. See id.

7 B. Motion to Reopen

8 1. Adjustment of Status

9 The BIA also reasonably declined to reopen Yu’s

10 proceedings to allow him to pursue adjustment of status. 

11 Under the controlling regulation, 8 C.F.R. § 245.2 (2006),

12 United States Citizenship and Immigration Services (“USCIS”)

13 has sole jurisdiction to adjudicate an adjustment of status

14 application, with limited exceptions not relevant here. Yu

15 relies on our decision in Sheng Gao Ni v. BIA, 520 F.3d 125,

16 130 (2d Cir. 2008), to argue that the agency erred in

17 finding that it lacked jurisdiction over his adjustment of

18 status application. However, Yu’s reliance on Sheng Gao Ni

19 is misplaced, because that case involved timely motions to

20 reopen. Id. Because Yu’s motion was untimely, the agency

21 did not err in finding that it lacked jurisdiction to review

22 his adjustment of status application. See 8 C.F.R. § 245.2;
6

1 see also 8 U.S.C. § 1229a(c)(7)(C)(ii).

2 2. Changed Country Conditions

3 The BIA also did not abuse its discretion in finding

4 that Yu failed to demonstrate changed country conditions

5 excusing the time and numerical limitations for filing his

6 motion based on the birth of his two children in the United

7 States. See 8 C.F.R. § 1003.2(c)(3)(ii); see also Wei Guang

8 Wang v. BIA, 437 F.3d 270, 273-274 (2d Cir. 2006); Li Yong

9 Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d

10 Cir. 2005) (per curiam). Yu argues that the BIA failed to

11 properly consider the evidence that he submitted. However,

12 we have rejected the notion that the agency must “expressly

13 parse or refute on the record each individual argument or

14 piece of evidence offered by the petitioner,” Jian Hui Shao

15 v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008), and “presume

16 that [the agency] has taken into account all of the evidence

17 before [it], unless the record compellingly suggests

18 otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

19 315, 336 n.17 (2d Cir. 2006). Here, the record does not

20 compel the conclusion that the BIA failed to consider the

21 evidence Yu submitted. See Jian Hui Shao, 546 F.3d at 169-

22 72 (noting that “[w]e do not ourselves attempt to resolve
7

1 conflicts in record evidence, a task largely within the

2 discretion of the agency”); see also Wei Guang Wang, 437

3 F.3d at 275 (noting that while the BIA must consider

4 evidence such as “the oft-cited Aird affidavit, which [it]

5 is asked to consider time and again[,] . . . it may do so in

6 summary fashion without a reviewing court presuming that it

7 has abused its discretion”).

8 II. 08-4061-ag (Con)

9 In some circumstances, under the doctrine of equitable

10 tolling, ineffective assistance of counsel can extend the

11 filing deadline for an alien’s motion to reopen. See Cekic

12 v. INS, 435 F.3d 167, 171 (2d Cir. 2006). In order to

13 warrant equitable tolling, however, the alien is required to

14 demonstrate that he exercised “due diligence” in pursuing

15 his claims during “both the period of time before the

16 ineffective assistance of counsel was or should have been

17 discovered and the period from that point until the motion

18 to reopen is filed.” Rashid v. Mukasey, 533 F.3d 127, 132

19 (2d Cir. 2008).

20 The BIA did not act arbitrarily or capriciously in

21 concluding that Yu failed to exercise due diligence because

22 he waited more than fifteen years to file his March 2008
8

1 motion to reopen his exclusion proceedings and, further,

2 failed to assert that he received ineffective assistance of

3 counsel until after that motion to reopen had been denied. 

4 For the foregoing reasons, these petitions for review

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

6 removal that the Court previously granted is VACATED, and

7 any pending motion for a stay of removal is DISMISSED as

8 moot. Any pending request for oral argument is DENIED in

9 accordance with Federal Rule of Appellate Procedure

10 34(a)(2), and Second Circuit Local Rule 34.1(b).

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

13