Jun Xia v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 18, 2024
• Docket: 18-71504
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUN XIA, No. 18-71504

Petitioner, Agency No. A206-658-574

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted November 14, 2024** San Francisco, California

Before: GOULD, SUNG, and DE ALBA, Circuit Judges.

Jun Xia, a native and citizen of China, petitions for review of the Board of

Immigration Appeals’ (“BIA”) dismissal of his appeal of the immigration judge’s

(“IJ”) denial of his motion to reopen proceedings and rescind his in absentia

removal order. We have jurisdiction under 8 U.S.C. § 1252(a)(1).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We review the BIA’s denial of a motion to reopen for abuse of discretion.

Hernandez-Galand v. Garland, 996 F.3d 1030, 1034 (9th Cir. 2021). We retain

jurisdiction to review the BIA’s decision denying sua sponte reopening “for the

limited purpose of reviewing the reasoning behind the decision[] for legal or

constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). We

deny the petition for review in part and dismiss in part for lack of jurisdiction.

1. Xia was admitted to the United States on August 13, 2012 as a

nonimmigrant visitor with permission to stay until November 12, 2012. Xia filed

an application for asylum, withholding of removal, and protection under the

Convention Against Torture in May 2014. After his asylum interview, the

government referred Xia’s application to an IJ.

2. On April 2, 2015, the Department of Homeland Security personally

served Xia with a Notice to Appear (“NTA”), charging him with removability

under 8 U.S.C. § 1227(a)(1)(B) for overstaying his visa. The NTA indicated that

Xia’s hearing date and time were to be determined, and the notice required Xia to

inform the immigration court of any change of address. On June 15, 2015, a notice

of hearing was mailed to Xia’s address in Monterey Park, California. Xia failed to

appear for his hearing on October 4, 2016, and the IJ ordered him removed in

absentia.

2 3. On July 17, 2017, Xia filed a motion to reopen his proceedings and

rescind his in absentia removal order, contending that he lacked proper notice. Xia

also contended in a later response that the NTA was defective because it did not

list the time or date of his hearing. The IJ denied Xia’s motion to reopen, and Xia

appealed to the BIA. The BIA affirmed the IJ’s denial of the motion to reopen

because Xia did not demonstrate that he did not receive his notice of hearing. The

BIA also held that Xia’s NTA was not defective because notification of hearing

can occur after the NTA’s issuance. Finally, the BIA held that Xia’s situation was

not an “exceptional” situation justifying exercise of sua sponte reopening of

proceedings.

4. An in absentia removal order can be rescinded if the petitioner

demonstrates lack of proper notice. 8 U.S.C. § 1229a(b)(5)(C)(ii). A notice of

hearing is deemed sufficient notice if mailed to the most recent address provided

by the petitioner. 8 U.S.C. § 1229a(b)(5)(A). Although weaker than the strong

presumption for notice sent by certified mail, a presumption of delivery exists for a

notice of hearing sent through regular mail. Mejia-Hernandez v. Holder, 633 F.3d

818, 822 (9th Cir. 2011) (citing Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002)).

To rebut this presumption, the petitioner must submit sufficient evidence that the

petitioner did not receive notice, and the case “must be evaluated based on its own

3 particular circumstances and evidence.” Matter of M-R-A-, 24 I&N Dec. 665, 674

(BIA 2008).

5. We held in Salta that “[w]here a petitioner actually initiates a

proceeding to obtain a benefit, appears at an earlier hearing, and has no motive to

avoid the hearing, a sworn affidavit from [the petitioner] that neither []he nor a

responsible party residing at h[is] address received the notice should ordinarily be

sufficient to rebut the presumption of delivery” for notices sent by regular mail.

314 F.3d at 1079. We noted in Sembiring v. Gonzales that the test for whether an

individual “has produced sufficient evidence to overcome the presumption of

effective service by regular mail is practical and commonsensical rather than

rigidly formulaic.” 499 F.3d 981, 988 (9th Cir. 2007).

6. The BIA did not abuse its discretion by finding Xia was provided

proper notice. Xia initiated proceedings to obtain asylum and submitted sworn

affidavits that he did not receive his notice of hearing. See Salta, 314 F.3d at 1079.

Xia undermines the probative value of his own affidavits, however, by stating in

his amended affidavit that he moved two times between 2015 and 2017, yet never

filed a change of address form to notify the immigration court prior to the notice of

hearing being mailed.1 Xia’s application for asylum, filed a year prior to the notice

1 Xia asserts that he mailed a change of address to the court after moving in December 2016, but there is no evidence of this in the record. Even if Xia had

4 of hearing, listed his Monterey Park address as his current residence, and the NTA

served personally to Xia listed the same address as his residence. The notice of

hearing was consequently mailed to Xia’s Monterey Park address because it was

Xia’s address on record. Based on the foregoing circumstances and evidence, the

BIA did not abuse its discretion in denying Xia’s motion to reopen and rescind his

in absentia removal order.

7. An NTA indicating that the hearing date and time are to be

determined cannot be the basis for rescission of an in absentia removal order under

8 U.S.C. § 1229a(b)(5)(C)(ii) if a notice of hearing is later sent. See Campos-

Chaves v. Garland, 602 U.S. __, 144 S. Ct. 1637, 1647–49 (2024). Because the

notice of hearing here was sent to Xia, his in absentia removal order may not be

rescinded. See id.

8. Because Xia alleges no legal or constitutional errors, we lack

jurisdiction to review the agency’s decision to deny sua sponte reopening of his

proceedings. See Bonilla, 840 F.3d at 588.

PETITION DENIED in part; DISMISSED in part.

filed a change of address form in December 2016, it would have been over a year after the notice of hearing was mailed in June 2015.