08-4494-ag
Zheng v. Holder
BIA
Bukszpan, IJ
A070 902 071
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 Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 8 th day of June, two thousand ten.
PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
PETER W. HALL,
Circuit Judges.
_______________________________________
SHENGJIN ZHENG,
Petitioner,
v. 08-4494-ag
NAC
ERIC H. HOLDER, JR., 1 U.S. ATTORNEY
GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Scott E. Bratton, Margaret Wong &
Associates Co., LPA, Cleveland,
Ohio.
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Michael F. Hertz, Acting Assistant
Attorney General, Civil Division,
Linda S. Wernery, Assistant
Director, Susan Bennett Green, Trial
Attorney, Office of Immigration
Litigation, U.S. Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Shengjin Zheng, a native and citizen of China, seeks
review of the August 13, 2008 order of the BIA (1) affirming
the May 16, 2007 decision of Immigration Judge (“IJ”) Joanna
M. Bukszpan denying his motion to reopen removal
proceedings, and (2) denying his motion to remand. In re
Shengjin Zheng, No. A070 902 071 (B.I.A. Aug. 13, 2008),
aff’g No. A070 902 071 (Immig. Ct. N.Y. City May 16, 2007).
We assume the parties’ familiarity with the underlying facts
and procedural history of the case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review
the BIA’s denial of a motion to reopen or remand for abuse
of discretion. See Sanusi v. Gonzales, 445 F.3d 193, 200-01
2
(2d Cir. 2006); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.
2005).
I. Motion To Reopen
The BIA dismissed Zheng’s appeal, affirming both the
IJ’s determination that Zheng’s motion was untimely and her
discretionary denial of his motion to reopen. Because the
motion to reopen Zheng’s in absentia order was based on new
evidence, we apply the general standards governing motions
to reopen. See 8 C.F.R. §§ 1003.2(c), 1003.23(b); see
generally Grigous v. Gonzales, 460 F.3d 156, 160 (1st Cir.
2006). 2 Under those standards, we agree that Zheng’s motion
to reopen, filed nearly ten years after entry of the in
absentia order of removal, was untimely. See 8 C.F.R.
§ 1003.2(c)(2) (requiring that motion to reopen be filed
within 90 days of date of final administrative decision).
There are no time or number limitations for filing a
2
The BIA erred in concluding that Zheng’s motion to
reopen was untimely under the deadline requirements set
forth in 8 U.S.C. § 1229a(b)(5)(C). That statute applies
to an alien’s motion to rescind an in absentia order.
Nevertheless, remand based on this error would be futile
because Zheng’s motion was untimely pursuant to the
general motion to reopen deadlines set forth in 8 C.F.R.
§§ 1003.2(c) and 1003.23(b). See Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006)
(finding that remand is futile only when reviewing court
can “confidently predict” that IJ would reach same
decision absent relevant errors).
3
motion to reopen where the motion is “based on changed
circumstances arising in the country of nationality or in
the country to which deportation has been ordered, if such
evidence is material and was not available and could not
have been discovered or presented at the previous hearing.”
8 C.F.R. § 1003.2(c)(3)(ii). The BIA, however, properly
concluded that Zheng failed to demonstrate that his motion
satisfied the requirements of this exception. As in Matter
of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), and Matter of S-
Y-G-, 24 I. & N. Dec. 247 (BIA 2007), the BIA considered the
2006 U.S. State Department Country Conditions Report and
various administrative decisions issued to Chinese couples
who violated the family planning policy but determined that
such evidence was insufficient to establish material changed
country conditions or a reasonable possibility of
persecution, see Jian Hui Shao v. Mukasey, 546 F.3d 138, 169
(2d Cir. 2008). On this record, we cannot conclude that the
BIA abused its discretion in affirming the IJ’s denial of
Zheng’s untimely motion to reopen. 3
3
We need not consider Zheng’s argument that the BIA
erred in failing to consider his fear that he will face a
significant fine if he returns to China, as the argument
is unexhausted. See Lin Zhong v. U.S. Dep’t of Justice,
480 F.3d 104, 122 (2d Cir. 2007).
4
II. Motion to Remand
Under 8 U.S.C. § 1229a, “[a]ny alien who, after
written notice . . . has been provided to the alien or the
alien’s counsel of record, does not attend a proceeding
under this section, shall be ordered removed in absentia if
the [government] establishes by clear, unequivocal, and
convincing evidence that the written notice was so provided
and that the alien is removable.” 8 U.S.C.
§ 1229a(b)(5)(A). Generally, “[s]uch an order may be
rescinded only . . . upon a motion to reopen 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.” 8 U.S.C. § 1229a(b)(5)(C)(i).
In denying Zheng’s motion to remand, the BIA noted that
(1) the motion was untimely, as it was filed more than 180
days after the IJ’s in absentia order; and (2) Zheng failed
to explain why he did not appear for his October 1997 merits
hearing. This reasoning manifests no abuse of discretion.
See 8 U.S.C. § 1229a(b)(5)(C)(i); see also Alrefae v.
Chertoff, 471 F.3d 353, 358-59 (2d Cir. 2006).
Nevertheless, Zheng argues that denial of his motion to
remand was improper under Matter of G-Y-R-, 23 I. & N. Dec.
5
181 (BIA 2001), because he did not receive proper notice of
his merits hearing. See 8 C.F.R. § 1003.23(b)(4)(ii)
(permitting in absentia order of removal to be rescinded
upon motion to reopen at any time, so long as alien
demonstrates he did not receive proper notice). We are not
persuaded.
In April 1997, the agency sent a notice to appear
(“NTA”) to Zheng via certified mail using an address that he
provided on his asylum application approximately one month
earlier, and there is no evidence in the record that Zheng
did not receive that NTA. See Alrefae, 471 F.3d at 359
(noting that because sending NTA by certified mail and
providing proof of attempted delivery create presumption of
effective service, alien seeking relief from in absentia
removal order on ground that he did not receive notice must
“present[] substantial and probative evidence such as
documentary evidence from the Postal Service, third party
affidavits, or other similar evidence demonstrating that
there was improper delivery” (internal quotation marks
omitted)). Zheng’s hearing date was thereafter twice
changed, prompting two additional NTAs to be mailed to the
same address. Zheng asserts that he never received these
later NTAs and that he had moved from the address provided.
6
The April 1997 NTA, however, advised Zheng of his obligation
to “notify the Immigration Court immediately . . . whenever
[he] change[d] [his] address” and warned that the failure to
do so would relieve the government of its duty to provide
him with written notice. April 15, 1997 Notice to Appear at
2. In light of these facts and Zheng’s failure to adduce
any evidence indicating that he notified the government of
his purported change of address, we identify no abuse of
discretion in the BIA’s rejection of Zheng’s notice defense
to his failure to appear at his merits hearing.
Zheng’s assertion that the BIA erred in denying his
motion to remand by finding him ineligible for adjustment of
status is similarly unavailing. The BIA did not reach the
issue of Zheng’s eligibility for adjustment of status
because Zheng offered no explanation for his failure to
present his application for adjustment to the IJ. In these
circumstances, the BIA’s denial of the motion for remand was
not an abuse of discretion. See 8 C.F.R. § 1003.2(c)(1)
(noting that motion to reopen shall not be granted unless
evidence sought to be offered was unavailable and could not
have been presented at former hearing).
7
III. Conclusion
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).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
8