08-6120-ag
Sanchez-Perez v. Holder
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
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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
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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 15th day of January, two thousand ten.
PRESENT:
WILFRED FEINBERG,
ROBERT A. KATZMANN,
Circuit Judges,
T.S. ELLIS III,*
District Judge.
Jose Abraham Sanchez-Perez,
Petitioner,
v. 08-6120-ag
Eric H. Holder, Jr.,
U.S. Attorney General,** et al.,
Respondents.
*
T.S. Ellis III, Senior Judge of the United States District
Court for the Eastern District of Virginia, sitting by
designation.
**
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
United States Attorney General Eric H. Holder, Jr., is
substituted for former Attorney General Michael B. Mukasey as
Respondent in this case.
FOR PETITIONER: Jose Abraham Sanchez-Perez, pro se, Bronx,
NY.
FOR RESPONDENTS: Tony West, Assistant Attorney General, Civil
Division; Barry J. Pettinato, Assistant
Director, Office of Immigration Litigation;
Terri León-Benner, Trial Attorney, Office of
Immigration Litigation, Civil Division, U.S.
Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review and
motion for a stay of removal are DENIED.
Petitioner Jose Abraham Sanchez-Perez, a native and citizen
of the Dominican Republic, seeks review of the November 14, 2008
order of the BIA denying his motion to reopen. In re Jose
Abraham Sanchez-Perez, No. A073 510 370 (B.I.A. Nov. 14, 2008).
We assume the parties’ familiarity with the underlying facts and
procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse
of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)
(citing INS v. Doherty, 502 U.S. 314, 322-23 (1992)).
Sanchez-Perez filed his motion to reopen, challenging the
BIA’s affirmation of the immigration judge’s (“IJ”) decision
denying a motion to reopen his proceedings following entry of a
deportation order entered in absentia in 1997. Sanchez-Perez
asserted that his application to adjust status should be reviewed
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because he had not received notice of the hearing, following
which the IJ entered the in absentia order.
The BIA denied Sanchez-Perez’s motion to reopen filed on
September 16, 2008, as untimely filed following the prior BIA
order, entered June 11, 2008, affirming the IJ’s denial of the
motion to reopen the proceedings. As Sanchez-Perez filed the
motion more than 90 days after the prior BIA order and provided
no explanation for any delay or exception from the timing
requirement, it was not an abuse of discretion for the BIA to
deny the motion. See 8 C.F.R. § 1003.2(c)(2), (3).
Moreover, the administrative record establishes that there
is no merit to Sanchez-Perez’s underlying claim that he had not
received notice of the hearing, thus entitling him to reopening
or rescission of the in absentia order. The hearing notice in
the record was personally served on Sanchez-Perez and his counsel
at a hearing and Sanchez-Perez’s affidavit confirms that he
received the notice. Contrary to his argument in this Court,
there is no requirement that notice be made by certified mail.
See 8 U.S.C. § 1229(a)(2)(A) (providing that service by mail is
required where “personal service is not practicable.”). Because
Sanchez-Perez moved to reopen his proceedings ten years after
entry of the in absentia order, any motion to reopen or rescind
was untimely given that the record clearly establishes that he
had received notice of the hearing. See 8 U.S.C. § 1252b(c)(3)
(1996) (providing, absent lack of notice, a 180-day period for
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challenging an in absentia order via a motion to reopen or
rescind); 8 C.F.R. 1003.2(c)(2), (3) (providing absent a relevant
exception, a 90-day period for a filing a motion to reopen).
We have considered all of Sanchez-Perez’s arguments and
determined them to be without merit.
For the foregoing reasons, the petition for review and
motion for a stay of removal are DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:__________________________
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