Case: 09-60754 Document: 00511151975 Page: 1 Date Filed: 06/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 23, 2010
No. 09-60754
Summary Calendar Lyle W. Cayce
Clerk
YIHWA CHEN,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A072 406 872
Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
Yihwa Chen, a native and citizen of China, petitions for review of a final
order of the Board of Immigration Appeals (BIA), dismissing his appeal from the
Immigration Judge’s (IJ) denial of his motion to reopen his deportation
proceedings.
Chen failed to appear for his deportation hearing in January 1993 and was
ordered deported in absentia. He filed a motion to reopen in November 2007.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 09-60754
In claiming the BIA abused its discretion in denying his motion to rescind
the in absentia deportation order, Chen contends the BIA erred in finding he
received sufficient notice of the hearing date. The denial of a motion to reopen
is reviewed under a highly deferential abuse-of-discretion standard and “must
[be] affirm[ed] . . . as long as it is not capricious, without foundation in the
evidence, or otherwise so irrational that it is arbitrary rather than the result of
any perceptible rational approach”. Gomez-Palacios v. Holder, 560 F.3d 354, 358
(5th Cir. 2009). Although questions of law are reviewed de novo, factual findings
are reviewed “under the substantial-evidence test, meaning that this court may
not overturn the BIA’s factual findings unless the evidence compels a contrary
conclusion”. Id. (citing Chun v. INS, 115 F.3d 299, 302 (5th Cir. 1997)).
Because Chen was placed in deportation proceedings in 1992, prior to the
1 April 1997 effective date of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, his proceedings remain subject to the provisions of
former 8 U.S.C. § 1252b. In that regard, a deportation order entered in absentia
could be rescinded upon a motion to reopen filed at any time “if the alien
demonstrate[d] that the alien did not receive notice in accordance with
subsection (a)(2) of [that] section . . . .” 8 U.S.C. § 1252b(c)(3)(B).
The BIA found that Chen had received notice, based on his counsel of
record being present at the hearing in 1993. Chen does not challenge this
factual finding. Instead, he maintains there is no showing in the record that the
hearing notice was sent. The focus of the rescission inquiry, however, is not on
whether there is evidence the notice was sent but on actual receipt. Gomez-
Palacios, 560 F.3d at 360. The BIA’s finding that notice was given, based on
counsel’s appearance at the hearing, is supported by substantial evidence. See
id. at 361.
Applying the law to this fact, the BIA determined that notice to counsel
constituted notice to Chen. The BIA did not err in its application of law. See In
re Barocio, 19 I. & N. Dec. 255, 259 (BIA 1985) (stating notice to attorney
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No. 09-60754
constitutes notice to alien); see also 8 C.F.R. § 292.5(a) (when a person is
represented by an attorney of record, any required notice shall be given to the
attorney of record). Chen does not challenge the BIA’s application of law.
Therefore, the BIA did not abuse its discretion in dismissing Chen’s appeal from
the IJ’s decision denying Chen’s motion to reopen. See Gomez-Palacios, 560 F.3d
at 361.
Chen also claims the BIA erred in finding that his motion to reopen for the
purpose of applying for adjustment of status was untimely. He contends that,
because he was erroneously ordered deported in absentia due to lack of notice of
the hearing, there was no time limit applicable to his motion to reopen.
Because substantial evidence supported the BIA’s finding that Chen
received such notice, Chen’s contention that there was no applicable time limit
on his motion to reopen based on lack of notice of the hearing is without merit.
Along that line, the BIA concluded that his motion to reopen for the purpose of
applying for adjustment of status was time-barred because it was filed more
than 90 days after the entry of the deportation order, citing 8 C.F.R. §
1003.23(b)(1) and In re M-S, 22 I. & N. Dec. 349 (BIA 1998).
Chen does not challenge the BIA’s alternative reason for denying the
motion to reopen to adjust status: that Chen had not filed an application for
adjustment of status with his motion to reopen. By failing to do so, Chen has
abandoned that issue. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir.
2003) (treating issues not raised and briefed as abandoned).
DENIED.
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