Xiaoyong Chen v. Holder

424 F. App'x 53

• Court: Court of Appeals for the Second Circuit
• Decided: June 15, 2011
• Docket: 10-1393-ag
• Status: Unpublished

Opinion

SUMMARY ORDER

Petitioner, Xiaoyong Chen, a native and citizen of the People’s Republic of China, seeks review of a March 16, 2010 decision of the BIA denying his motion to rescind an in absentia order and reopen his removal proceedings. In re Xiaoyong Chen, No. A075 405 071 (B.I.A. March 16, 2010). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

When, as here, an alien files a motion that seeks both to rescind an in absentia order of deportation and to reopen 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 address separately each of Chen’s motions below, reviewing the BIA’s decision for abuse of discretion. See Alrefae, 471 F.3d at 357; Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).

I. Motion to Rescind

An in absentia order of deportation may be rescinded outside the 180-day time limitation “if the alien demonstrates that he or she did not receive notice” of his removal hearing. 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2). Where, as here, the notice of hearing “ ‘is sent by certified mail through the United States Postal Service and there is proof of attempted delivery and notification of certified mail, a strong presumption of effective service arises.’” See Alrefae, 471 F.3d at 357 (quoting Matter of Grijalva, 21 I. & N. Dec. 27, 37 (B.I.A.1995)). The presumption of effective service may be rebutted, if, in addition to evidence of non-delivery, there is “ ‘substantial and probative evidence ... demonstrating ... that nondelivery was not due to the respondent’s failure to provide an address where he could receive mail.’ ” Fuentes-Argueta v. INS, 101 F.3d 867, 871 (2d Cir.1996) (quoting Grijalva, 21 I. & N. Dec. at 37) (internal alterations omitted).

Chen points to no evidence, and there is none in the record, that would compel the conclusion that the non-delivery of the notice of hearing was not due to his own failure to provide a correct address. Accordingly, the BIA did not abuse its discretion in concluding that Chen failed to rebut the presumption of adequate notice.

II. Motion to Reopen

In denying Chen’s motion to reopen, the BIA did not err in applying a 90-day time limit, and, because the motion was untimely, mandating a showing of changed country conditions. See Maghradze, 462 F.3d at 156 (holding that the BIA did not err in denying a motion to reopen, accompanied by a motion to rescind, based on a lack of evidence of changed country conditions). None of the evidence proffered by Chen would require a finding of changed country conditions, either with respect to his claims concerning sterilization or with respect to his claims concerning the Chinese government’s treatment of underground churches. Accordingly, the BIA did not abuse its discretion in denying the motion to reopen.

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).