08-3252-ag (L); 08-4061-ag (Con)
Yu v. Holder
BIA
Hom, IJ
A029 125 873
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 21 st day of April, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 JHEN SHING YU, aka HERAWAN SANUSI,
15 aka JIAN XIN YU,
16 Petitioner,
17
18 v. 08-3252-ag (L);
19 08-4061-ag (Con)
20 NAC
21 ERIC H. HOLDER JR., UNITED STATES
22 ATTORNEY GENERAL, 1
23 Respondent.
24 _______________________________________
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.
1 FOR PETITIONER: Theodore N. Cox, New York, New York.
2
3 FOR RESPONDENT: Michael F. Hertz, Acting Assistant
4 Attorney General; Emily Anne
5 Radford, Assistant Director; Aviva
6 L. Poczter, Senior Litigation
7 Counsel, Office of Immigration
8 Litigation, United States Department
9 of Justice, Washington, D.C.
10
11 UPON DUE CONSIDERATION of these consolidated petitions
12 for review of two Board of Immigration Appeals (“BIA”)
13 decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that
14 the petitions for review are DENIED.
15 Petitioner Jhen Shing Yu, a native and citizen of the
16 People’s Republic of China, seeks review of: (1) the June
17 24, 2008, order of the BIA denying his appeal of an
18 Immigration Judge’s (“IJ’s”) April 2, 2008, order denying
19 his motion to reopen, In re Jhen Shing Yu, No. A029 125 873
20 (B.I.A. June 24, 2008), aff’g No. A029 125 873 (Immig. Ct.
21 N.Y. City Apr. 2, 2008); and (2) the August 8, 2008, order
22 of the BIA denying his subsequent motion to reopen, In re
23 Jhen Shing Yu, No. A029 125 873 (B.I.A. Aug. 08, 2008). We
24 assume the parties’ familiarity with the underlying facts
25 and procedural history in this case.
26 We review the BIA’s denial of a motion to reopen for
27 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
2
1 Cir. 2005) (per curiam). There is no dispute that Yu’s
2 March and July 2008 motions to reopen were untimely and
3 number-barred because he was ordered excluded in absentia in
4 June 1993. See 8 C.F.R. § 1003.2(c)(2) (providing that an
5 alien seeking to reopen proceedings may file one motion to
6 reopen no later than 90 days after the date on which the
7 final administrative decision was rendered). However, there
8 is no time limit for motions to reopen either alleging
9 asylum eligibility based on changed country conditions, see
10 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.
11 § 1229a(c)(7)(C)(ii), or seeking rescission of an in
12 absentia exclusion order based on “reasonable cause” for the
13 failure to appear, see 8 C.F.R. § 1003.23(b)(4)(iii)(B).
14 I. Dkt. No. 08-3252-ag (L)
15 Motions to reopen in absentia orders are governed by
16 different rules depending on whether the movant seeks to
17 rescind the order or present new evidence. See Song Jin Wu
18 v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-, 22 I.
19 & N. Dec. 349, 353-55 (BIA 1998) (en banc). Accordingly,
20 when, as here, an alien files a motion that seeks both
21 rescission of an in absentia exclusion order, as well as
22 reopening of proceedings based on new evidence, the Court
3
1 treats the motion as comprising distinct motions to rescind
2 and to reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d
3 Cir. 2006); see also Maghradze v. Gonzales, 462 F.3d 150,
4 152 n.1 (2d Cir. 2006).
5 A. Motion to Rescind
6 In order to reopen exclusion proceedings, an alien must
7 establish that he had “reasonable cause” for his absence
8 from the proceedings. See Matter of Haim, 19 I. & N. Dec.
9 641, 642 (BIA 1988). Failure to receive notice can
10 constitute such reasonable cause. 8 C.F.R. §
11 1003.23(b)(4)(iii).
12 In his March 2008 motion to reopen, Yu claimed that his
13 attorney never informed him of his hearing because the
14 attorney himself did not receive notice. The BIA rejected
15 that argument, finding that notice had been properly served
16 by certified mail to the address counsel had provided.
17 Before this Court, Yu does not challenge the BIA’s finding
18 that notice to his attorney constituted notice to him. See
19 Song Jin Wu, 436 F.3d at 162 (finding that notice to an
20 alien’s attorney of record constitutes notice to the alien).
21 Rather, Yu asserts that his counsel never informed him of
22 his hearing date, which established “reasonable cause” for
4
1 his absence. However, as the BIA indicated, Yu’s March 2008
2 motion to rescind did not claim ineffective assistance of
3 counsel. Instead, Yu argued in that motion that former
4 counsel also never received notice, an argument he has
5 abandoned. The BIA did not abuse its discretion in denying
6 Yu’s March 2008 motion to rescind. See id.
7 B. Motion to Reopen
8 1. Adjustment of Status
9 The BIA also reasonably declined to reopen Yu’s
10 proceedings to allow him to pursue adjustment of status.
11 Under the controlling regulation, 8 C.F.R. § 245.2 (2006),
12 United States Citizenship and Immigration Services (“USCIS”)
13 has sole jurisdiction to adjudicate an adjustment of status
14 application, with limited exceptions not relevant here. Yu
15 relies on our decision in Sheng Gao Ni v. BIA, 520 F.3d 125,
16 130 (2d Cir. 2008), to argue that the agency erred in
17 finding that it lacked jurisdiction over his adjustment of
18 status application. However, Yu’s reliance on Sheng Gao Ni
19 is misplaced, because that case involved timely motions to
20 reopen. Id. Because Yu’s motion was untimely, the agency
21 did not err in finding that it lacked jurisdiction to review
22 his adjustment of status application. See 8 C.F.R. § 245.2;
5
1 see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
2 2. Changed Country Conditions
3 The BIA also did not abuse its discretion in finding
4 that Yu failed to demonstrate changed country conditions
5 excusing the time and numerical limitations for filing his
6 motion based on the birth of his two children in the United
7 States. See 8 C.F.R. § 1003.2(c)(3)(ii); see also Wei Guang
8 Wang v. BIA, 437 F.3d 270, 273-274 (2d Cir. 2006); Li Yong
9 Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d
10 Cir. 2005) (per curiam). Yu argues that the BIA failed to
11 properly consider the evidence that he submitted. However,
12 we have rejected the notion that the agency must “expressly
13 parse or refute on the record each individual argument or
14 piece of evidence offered by the petitioner,” Jian Hui Shao
15 v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008), and “presume
16 that [the agency] has taken into account all of the evidence
17 before [it], unless the record compellingly suggests
18 otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
19 315, 336 n.17 (2d Cir. 2006). Here, the record does not
20 compel the conclusion that the BIA failed to consider the
21 evidence Yu submitted. See Jian Hui Shao, 546 F.3d at 169-
22 72 (noting that “[w]e do not ourselves attempt to resolve
6
1 conflicts in record evidence, a task largely within the
2 discretion of the agency”); see also Wei Guang Wang, 437
3 F.3d at 275 (noting that while the BIA must consider
4 evidence such as “the oft-cited Aird affidavit, which [it]
5 is asked to consider time and again[,] . . . it may do so in
6 summary fashion without a reviewing court presuming that it
7 has abused its discretion”).
8 II. 08-4061-ag (Con)
9 In some circumstances, under the doctrine of equitable
10 tolling, ineffective assistance of counsel can extend the
11 filing deadline for an alien’s motion to reopen. See Cekic
12 v. INS, 435 F.3d 167, 171 (2d Cir. 2006). In order to
13 warrant equitable tolling, however, the alien is required to
14 demonstrate that he exercised “due diligence” in pursuing
15 his claims during “both the period of time before the
16 ineffective assistance of counsel was or should have been
17 discovered and the period from that point until the motion
18 to reopen is filed.” Rashid v. Mukasey, 533 F.3d 127, 132
19 (2d Cir. 2008).
20 The BIA did not act arbitrarily or capriciously in
21 concluding that Yu failed to exercise due diligence because
22 he waited more than fifteen years to file his March 2008
7
1 motion to reopen his exclusion proceedings and, further,
2 failed to assert that he received ineffective assistance of
3 counsel until after that motion to reopen had been denied.
4 For the foregoing reasons, these petitions for review
5 are DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted is VACATED, and
7 any pending motion for a stay of removal is DISMISSED as
8 moot. Any pending request for oral argument is DENIED in
9 accordance with Federal Rule of Appellate Procedure
10 34(a)(2), and Second Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
8