21- 6592 S haripov v. Garland BIA Poczter , IJ A2 00 911 450 

### 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. At a stated term of the United States Court of Appeals for the Second 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 22 nd da y of April, two thousand 3 twenty-four. 4 5 PRESENT: 6 RICHARD C. WESLEY, 7 RAYMOND J. LOHIER, JR., 8 MARIA ARAÚJO KAHN, 9 Circuit Judges. 10

_____________________________________ 11 12 NUSRATULLO SHARIPOV , 13 Petitioner , 14 15 v. 21-6592 16 NAC 17 MERRICK B. GARLAND, UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent
. 20

_____________________________________ 21 22 23 242 FOR PETITIONER : Tatiana S. Aristova , Khavinson & Associates, 1 P.C., Plainsboro, NJ. 2 3 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 4 Attorney General ; Linda S. Wernery, 5 Assistant Director; Gregory M. Kelch , Senior 6 Trial Attorney, Office of Immigration 7 Litigation, United States Department of 8 Justice, Washington, D C. 9 UPON DUE CONSIDERATION of this petition for review of a Board of 10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 11 DECREED that the petitio n for review is DENIE D in part and DISMISSED in part. 12
Petitioner Nusratullo Sharipov , a native of the Soviet Union and citizen of 13 Tajikistan , seeks review of an October 29 , 2021 decision of the BIA denying his 14 motion to reopen and affirming a February 7 , 2019 decision of an Immigration 15 Judge (“IJ”) , which den ied his motion to rescind an in absentia removal order. In 16

re Nusratullo Sharipov , No. A 200 911 450 (B.I.A. Oct. 29, 2021), aff’g No. A 200 911 17
450 (Immig r . Ct. N.Y. C. Feb . 7 , 2019). We assume the parties’ familiarity with the 18 underlying facts and procedural history. 19 In 2019, the IJ scheduled a removal hearing by mailing a hearing notice to 20 Sharipov’s counsel. Sharipov did not appear at the hearing and was ordered 21 removed in absentia. Nearly 10 months later, Sharipov, through new counsel, 223 moved to rescind the removal order, arguing that he did not have notice of the 1 hearing because the immigration court had the wrong address for him

. He later 2 added a request for reopening based on an I

- 130 immediate relative petition that 3 his wife had filed on his behalf. We have considered both the IJ’s and the BIA’s 4
decisions

. Wangchuck v. Dep’t of Homeland Sec ., 448 F.3d 524, 528 (2d Cir. 2006). 5 We review the agency’s denial of these motions for abuse of discretion. See Alrefae 6 v. Chertoff , 471 F.3d 353, 357 (2d Cir. 2006) (motion to rescind); Ali v. Gonzales , 448 7 F.3d 515, 517 (2d Cir. 2006) (motion to reopen)

. 8 We find no abuse of discretion in the agency’s denial of Sharipov’s motion 9 to rescind. The agency may rescind an in absentia order at any time if the 10 noncitizen did not receive notice of the hearing. 8 U.S.C. § 1229a(b)(5)(C) (ii) ; 8 11 C.F.R. § 1003.23(b)(4)(ii)

. The record reflects , and Sharipov does not dispute , that 12 the hearing notice was sent to his counsel , who appeared at the hearing. An alien 13 may be removed in absentia if he fails to appear “after written notice

. . . has been 14 provided to the alien or the alien’s counsel of record .” 8 U.S.C. § 1229a(b)(5)(A) 15 (emphasis added). Because counsel received the notice, the notice requirement 16
was satisfied

. See Song Jin Wu v. INS , 436 F.3d 157, 162 (2d Cir. 2006) (determining, 174 under prior version of the statute, that petitioner failed to rebut presumption of 1 proper notice when attorney of record received notice of the hearing). 2 Sharipov argues that the agency nevertheless abused its discretion because 3 his attorney gave the immigration court the wrong address for him

. He has not 4 cited any authority for his argument that the IJ was required to reject a change of 5 address form signed only by his counsel. On the contrary, the Immigration Court 6
Practice Manual contemplates that attorney will submit change of address forms 7
on their client’s behalf. See Immigration Court Practice Manual, ch. 2.2, 8 https://www.justice.gov/eoir/reference

- materials/ic/chapter

- 2/2 (last visited Oct. 9 31, 2023) (“ When submitted by an attorney or accredited representative, acting as 10 a practitioner of record, the EOIR

- 33/IC must be submitted electronically through 11 ECAS for all cases eligible for electronic filing and in paper in all other cases.”). 12 Moreover, Sharipov has not demonstrated that he lacked oral notice of the 13
address on file , and he failed to correct the alleged error . At the last hearing 14 before the in absentia removal order was entered, the IJ confirmed Sharipov’s 15
address . The IJ’s decision denying the motion to rescind states that the audio 16 recording confirmed that the address was translated. Sharipov has not presented 17
sufficient evidence to contradict that determination. 185 Because Sharipov’s attorney received notice, and because Sharipov had 1
notice of the address on file and did not correct the alleged error or remain in 2 contact with his counsel, the agency did not abuse its discretion in denying the 3
motion to rescind

. See 8 U.S.C. § 1229a(b)(5)(C)(ii); Song Jin Wu , 436 F.3d at 162 4 (concluding that notice to counsel was sufficient where there was “no evidence 5 that delivery was improper or that nondelivery was not due to [petitioner’s] 6 failure to provide his correct address”). 7 Nor did the BIA abuse its discretion by denying the motion to reopen. 8 Sharipov does not dispute that the motion was untimely filed more than 90 days 9
after the final administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 10 § 1003.2(c)(2 ). Moreover, a motion to reopen to seek adjustment of status does 11
not fall into a statutory or regulatory exception to the filing deadline. See 8 U.S.C. 12 § 1229a(c)(7)(C)(ii) , (iv) ( listing exceptions) ; 8 C.F.R. § 1003.2(c)(3)(ii) (same); 13 Matter of Yauri , 25 I. & N. Dec. 103, 105 (B.I.A. 2009) (“[U]ntimely motions to reopen 14 to pursue an application for adjustment of status . . . do not fall within any of the 15 statutory or regulatory exceptions to the time limits for motions to reopen . . . and 16
will ordinarily be denied.” (quotation marks omitted) ). T o the extent the BIA 17 declined to reopen sua sponte despite the untimely filing, we lack jurisdiction to 186 review that “entirely discretionary” decision. Ali , 448 F.3d at 518; Li Chen v. 1 Garland , 43 F.4th 244, 249 (2d Cir. 2022)

. 2 For the foregoing reasons, the petition for review is DENIE D in part and 3 DISMISSED in part. All pending motions and applications are DENIED and 4 stays VACATED. 5
FOR THE COURT: 6 Catherine O ’ Hagan Wolfe , 7 Clerk of Court 8