     14-2157
     Perez-Saurez v. Lynch
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A075 204 658
                             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   24th day of November, two thousand fifteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNIS JACOBS,
 9            PETER W. HALL,
10                 Circuit Judges.
11   _____________________________________
12
13   WILSON PEREZ-SAUREZ,
14            Petitioner,
15
16                     v.                                            14-2157
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                    Joshua Bardavid, New York, New York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Brianne
28                                       Whelan Cohen, Senior Litigation
29                                       Counsel; Mona Maria Yousif, Trial
1                               Attorney, Office of Immigration
2                               Litigation, United States
3                               Department of Justice, Washington,
4                               D.C.
5
6        UPON DUE CONSIDERATION of this petition for review of a

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

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

9    DENIED.

10       Petitioner Wilson Perez-Saurez, a native and citizen of

11   Ecuador, seeks review of a May 29, 2014, decision of the BIA

12   affirming an October 24, 2012, decision of an Immigration Judge

13   (“IJ”) denying Perez-Saurez’s motion to rescind his in absentia

14   removal order.    In re Wilson Perez-Saurez, No. A075 204 658

15   (B.I.A. May 29, 2014), aff’g No. A075 204 658 (Immig. Ct.

16   Hartford Oct. 24, 2012).   We assume the parties’ familiarity

17   with the underlying facts and procedural history in this case.

18       Under the circumstances of this case, we have reviewed the

19   IJ’s decision as supplemented by the BIA.     See Yan Chen v.

20   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     We review the

21   denial of a motion to rescind an in absentia removal order for

22   abuse of discretion.   Alrefae v. Chertoff, 471 F.3d 353, 357

23   (2d Cir. 2006).

                                   2
1        An alien will be ordered removed in absentia if he does not

2    attend   his   removal   hearing.       8   U.S.C.   § 1229a(b)(5)(A).

3    However, an in absentia removal order may be rescinded at any

4    time if the alien demonstrates that he did not receive notice.

5    8 U.S.C. § 1229a(b)(5)(C).     Perez-Saurez moved to reopen and

6    rescind his in absentia order fourteen years after it was

7    entered, contending that he did not receive notice of his

8    hearing.     The agency did not abuse its discretion in denying

9    that motion.

10       Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii), for rescission

11   due to lack of notice, a movant must demonstrate that he did

12   not receive notice in accordance with 8 U.S.C. § 1229(a)(2).

13   Section 1229(a)(2)(A) requires notice of hearing in person, or,

14   when in-person service is not practicable, service by mail.

15   Service by mail is sufficient if there is proof of attempted

16   delivery to the last address provided by the alien.           8 U.S.C.

17   § 1229(c).     If the Government establishes that notice was

18   properly sent to the alien, a rebuttable presumption of receipt

19   applies.     Alrefae, 471 F.3d at 358-59.

20       Perez-Saurez conceded that hearing notice was mailed to the

21   address that the immigration court had on file, but argued that
                                         3
1    he rebutted the presumption of receipt because he had not

2    provided the address on file and had never lived there.

3    However, Perez-Saurez filed two change of venue motions, both

4    of which listed the address to which the notice of hearing was

5    mailed and were signed by him; so, he did, in fact, provide the

6    mailing address.    He cannot rebut the presumption of receipt

7    based on his own efforts to thwart delivery by not living at

8    the address he provided.    See Maghradze v. Gonzales, 462 F.3d

9    150, 153-54 (2d Cir. 2006).   The agency therefore did not abuse

10   its discretion in denying the motion to rescind.

11       Perez-Saurez does not deny that he received notice of his

12   hearing date.    Instead, he argues that the initial charging

13   document, the Notice to Appear (“NTA”), was not properly served

14   because he was 17 years old at the time of service.      As the

15   Government asserts, Perez-Saurez did not exhaust this argument.

16   See Foster v. INS, 376 F.3d 75, 77-78 (2d Cir. 2004).   Because

17   Perez-Saurez did not raise this issue before the BIA, and the

18   Government has raised the failure to exhaust, we decline to

19   consider it.    See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

20   104, 124 (2d Cir. 2007).

21       Perez-Saurez argues that the BIA addressed the issue of
                                     4
1    service of the NTA and thus we can consider it even if it was

2    not properly exhausted.       See Xian Tuan Ye v. Dep’t of Homeland

3    Sec., 446 F.3d 289, 296-97 (2d Cir. 2006) (holding that failure

4    to exhaust is excused where BIA considered a claim).         However,

5    the BIA did not discuss the regulation allowing for service on

6    a minor older than 14 when the agency considered whether the

7    in absentia removal order should be rescinded: it discussed only

8    the   alleged   non-receipt    of   the   hearing   notice   warranted

9    rescission.

10         The background section of the BIA order recited that

11   Perez-Saurez was served with an NTA and cited a case for the

12   proposition that service of an NTA on a minor older than 14 was

13   proper.   However, the BIA did not rely on, or even consider,

14   that case or the relevant regulation when declining to reopen

15   proceedings.     Because the BIA had already held that the

16   regulation was proper, it had no reason to consider that issue

17   sua sponte, and did not do so.            It cited the precedential

18   decision; it did not address the merits of that decision, which

19   is the issue raised for the first time here.        See Theodoropoulos

20   v. INS, 358 F.3d 162, 171 (2d Cir. 2004) (“[A]t least one of

21   the purposes served by the exhaustion requirement . . . is to
                                         5
1    ensure that . . . the agency responsible for construing and

2    applying the immigration laws and implementing regulations[]

3    has had a full opportunity to consider a petitioner’s claims

4    before they are submitted for review by a federal court.”).    We

5    conclude that there is no reason to deviate from the exhaustion

6    requirement in this case.      Even assuming that service was

7    improper, the record shows that both Perez-Saurez and the adult

8    to whose custody he was released received notice sufficient to

9    satisfy due process.    See Nolasco v. Holder, 637 F.3d 159, 164

10   (2d Cir. 2011).

11       For the foregoing reasons, the petition for review is

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

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

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

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

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

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

18   34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O=Hagan Wolfe, Clerk



                                     6
