     16-1061
     Quishpin v. Sessions
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A088 769 715

                             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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   6th day of April, two thousand seventeen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            JOSÉ A. CABRANES,
 9            BARRINGTON D. PARKER,
10                 Circuit Judges.
11   _____________________________________
12
13   SEGUNDO PABLO QUISHPIN,
14            Petitioner,
15
16                      v.                                           16-1061
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     H. Raymond Fasano, New York, NY.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Terri J.
27                                       Scadron, Assistant Director; Lisa M.
28                                       Damiano, Trial Attorney, Office of
29                                       Immigration Litigation, United
30                                       States Department of Justice,
31                                       Washington, DC.
1        UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DENIED.

5        Petitioner Segundo Pablo Quishpin, a native and citizen of

6    Ecuador, seeks review of a March 8, 2016, decision of the BIA

7    affirming a September 22, 2014, decision of an Immigration Judge

8    (“IJ”) denying Quishpin’s motion to rescind his removal order

9    entered in absentia.   In re Segundo Pablo Quishpin, No. A088

10   769 715 (B.I.A. Mar. 8, 2016), aff’g No. A088 769 715 (Immig.

11   Ct. N.Y. City Sept. 22, 2014).        We assume the parties’

12   familiarity with the underlying facts and procedural history

13   in this case.

14       We have reviewed both the IJ’s and the BIA’s opinions “for

15   the sake of completeness.”     Wangchuck v. Dep’t of Homeland

16   Sec., 448 F.3d 524, 528 (2d Cir. 2006).    We review the agency’s

17   denial of a motion to rescind for abuse of discretion.    Alrefae

18   v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006).

19       An order of removal entered in absentia “may be rescinded

20   . . . upon a motion to reopen filed at any time if the alien

21   demonstrates that the alien did not receive notice . . . and

22   the failure to appear was through no fault of the alien.”

23   8 U.S.C.   § 1229a(b)(5)(C)(ii).          When   the   Government
                                   2
1    establishes that a hearing notice was sent to an alien in

2    accordance with established procedures, the agency may apply

3    a “slight presumption of receipt.”     Silva-Carvalho Lopes v.

4    Mukasey, 517 F.3d 156, 160 (2d Cir. 2008).     “[T]o determine

5    whether the slight presumption of receipt of regular mail has

6    more probably than not been overcome,” the agency “must consider

7    all of the petitioner’s evidence (circumstantial or otherwise)

8    in a practical fashion, guided by common sense.”       Id.   The

9    agency may consider, among other factors and evidence, the

10   following:

11       (1) the respondent’s affidavit; (2) affidavits from
12       family members or other individuals who are
13       knowledgeable about the facts relevant to whether
14       notice was received; (3) the respondent’s actions upon
15       learning of the in absentia order, and whether due
16       diligence was exercised in seeking to redress the
17       situation; (4) any prior affirmative application for
18       relief, indicating that the respondent had an
19       incentive to appear; (5) any prior application for
20       relief filed with the Immigration Court or any prima
21       facie evidence in the record or the respondent’s
22       motion   of   statutory    eligibility   for   relief,
23       indicating that the respondent had an incentive to
24       appear; (6) the respondent’s previous attendance at
25       Immigration Court hearings, if applicable; and (7) any
26       other circumstances or evidence indicating possible
27       nonreceipt of notice.
28
29   Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (B.I.A. 2008).

30       The agency reasonably applied the slight presumption that

31   Quishpin received notice of his hearing given evidence that the

32   agency sent a hearing notice to the address he had provided
                                   3
1    immigration officials.    See Silva-Carvalho Lopes, 517 F.3d at

2    160.    And the agency did not err in concluding that Quishpin

3    failed to rebut this presumption.     Quishpin and his brother

4    submitted affidavits that made conclusory assertions of

5    nonreceipt.    But they did not explain why Quishpin had provided

6    a Queens address on his release from immigration detention in

7    2010 if he was living in the Bronx, or describe any action he

8    took in his removal proceedings in the almost five years that

9    passed between his personal receipt of the Notice to Appear,

10   which placed him in removal proceedings and informed him of his

11   responsibility to update his address, and his filing of a motion

12   to rescind.    For aliens who receive notice of their obligation

13   to inform the immigration court of any change in address and

14   of the consequences of failing to do so in a Notice to Appear,

15   the “requirement that an alien ‘receive’ notice [is]

16   constructively satisfied if notice is properly provided and the

17   alien changes address without informing the [agency].”

18   Maghradze v. Gonzales, 462 F.3d 150, 154 (2d Cir. 2006).

19          The agency also reasonably found troubling that Quishpin

20   failed to inquire into the status of his removal proceedings

21   or apply for relief in those proceedings for five years.     See

22   Matter of M-R-A-, 24 I. & N. Dec. at 674.       And although he

23   applied for asylum, withholding of removal, and relief under
                                   4
1    the Convention Against Torture (“CAT”) in conjunction with his

2    motion to rescind, the agency reasonably concluded that his

3    claim—that an unnamed individual had threatened him to induce

4    him to join a gang more than five years earlier—was insufficient

5    to demonstrate his prima facie eligibility for that relief.*

6    Therefore, given that Quishpin failed to inquire about or apply

7    for relief in his proceedings for years and then failed to

8    establish his prima facie eligibility for relief, he did not

9    demonstrate that he had incentive to appear at his hearing and

10   would have done so had he received notice.        See Matter of

11   M-R-A-, 24 I. & N. Dec. at 674.

12       Accordingly, because Quishpin failed to provide any basis

13   to conclude that he had not received the hearing notice sent

14   to his address of record, the agency did not abuse its discretion

15   in declining to rescind his in absentia removal order.       See

16   8 U.S.C. § 1229a(b)(5)(C)(ii); see also Silva-Carvalho Lopes,

     *See 8 U.S.C. § 1158(a)(2)(B) (requiring asylum application to
     be filed within one year of arrival); see also Ci Pan v. U.S.
     Att’y General, 449 F.3d 408, 412-13 (2d Cir. 2006) (recognizing
     that unfulfilled threats do not constitute persecution); INS
     v. Elias-Zacarias, 502 U.S. 478, 482 (1992)(holding that forced
     recruitment is not basis for asylum absent evidence of targeting
     on account of political opinion); Matter of S-E-G-, 24 I. & N.
     Dec. 579, 582-88 (BIA 2008) (holding that individuals resistant
     to gang recruitment were not a cognizable particular social
     group); Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir.
     2003) (holding that CAT relief requires evidence that someone
     in applicant’s “particular alleged circumstances is more likely
     than not to be tortured”).
                                     5
1    517 F.3d at 160; Matter of M-R-A-, 24 I. & N. Dec. at 674.

2        For the foregoing reasons, the petition for review is

3    DENIED.    As we have completed our review, any stay of removal

4    that the Court previously granted in this petition is VACATED,

5    and any pending motion for a stay of removal in this petition

6    is DISMISSED as moot.    Any pending request for oral argument

7    in this petition is DENIED in accordance with Federal Rule of

8    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

9    34.1(b).

10                                 FOR THE COURT:
11                                 Catherine O’Hagan Wolfe, Clerk




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