         09-2148-ag
         Chen v. Holder
                                                                                       BIA
                                                                               A070 897 027
                           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 18 th day of February, two thousand               ten.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                REENA RAGGI,
 9                GERARD E. LYNCH,
10                   Circuit Judges.
11       _______________________________________
12
13       SHU MEI CHEN,
14                Petitioner,
15
16                        v.                                    09-2148-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Yung H. Hsu, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General, Jennifer J. Keeney, Senior
27                                     Litigation Counsel, Judith R.
28                                     O’Sullivan, Trial Attorney, Office
29                                     of Immigration Litigation, Civil
30                                     Division, United States Department
31                                     of Justice, Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

3    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4    review is DENIED.

5        Petitioner Shu Mei Chen, a native and citizen of the

6    People’s Republic of China, seeks review of the April 23,

7    2009, order of the BIA denying her motion to reopen.      In re

8    Shu Mei Chen, No. A 070 897 027 (B.I.A. Apr. 23, 2009).         We

9    assume the parties’ familiarity with the underlying facts

10   and procedural history of the case.

11       The BIA did not abuse its discretion in denying Chen’s

12   untimely motion to reopen proceedings that resulted in an

13   order of deportation entered when she failed to appear at

14   her March 1998 merits hearing.      See Ali v. Gonzales, 448

15   F.3d 515, 517 (2d Cir. 2006).

16       Motions to reopen in absentia orders are governed by

17   different rules depending on whether the movant seeks to

18   rescind the order or present new evidence.      See Song Jin Wu

19   v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-, 22 I.

20   & N. Dec. 349, 353-55 (BIA 1998) (en banc).      Accordingly,

21   when, as here, an alien files a motion that seeks both

22   rescission of an in absentia deportation order, as well as


                                     2
1    reopening of deportation proceedings based on new evidence,

2    we treat the motion as comprising distinct motions to

3    rescind and to reopen.     Alrefae v. Chertoff, 471 F.3d 353,

4    357 (2d Cir. 2006); see also Maghradze v. Gonzales, 462 F.3d

5    150, 152 n.1 (2d Cir. 2006).     We address each motion in

6    turn.

7        I.    Motion to Rescind

8        When an IJ orders an alien deported in absentia, there

9    is no time limit on filing a motion to reopen if the alien

10   can establish that he had reasonable cause for his failure

11   to appear.   Matter of N-B-, 22 I. & N. Dec. 590 (BIA 1999)

12   (en banc); Matter of Ruiz, 20 I. & N. Dec. 91, 92-93 (BIA

13   1989).   “A motion to reopen exclusion hearings on the basis

14   that the [IJ] improperly entered an order of exclusion in

15   absentia must be supported by evidence that the alien had

16   reasonable cause for his failure to appear.”     See 8 C.F.R.

17   § 1003.23(b)(4)(iii)(B).     Here, however, the BIA correctly

18   found that Chen failed to demonstrate “reasonable cause.”

19   Chen argues that she failed to appear because the travel

20   agency she was working with did not inform her of the

21   hearing date.   However, the BIA found that she was

22   personally served with notice of the hearing.     Moreover, the


                                     3
1    BIA rejected Chen’s argument on the additional ground that,

2    in blaming her failure to appear on ineffective assistance

3    from her advisors, she failed to comply with the Lozada

4    requirements.   See Chupina v. Holder, 570 F.3d 99, 101-02

5    (2d Cir. 2009) (discussing the requirements set forth in

6    Matter of Lozada, 19 I. & N Dec. 637, 639 (BIA 1988)).        Chen

7    fails to address either of these dispositive findings, which

8    are well supported in the record.    This failure is fatal to

9    her challenge to the BIA’s denial of her motion to rescind.

10   See 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii);

11   Matter of Lozada, 19 I. & N. Dec. at 639.

12       II. Motion to Reopen

13       Nor did the BIA abuse its discretion in denying Chen’s

14   motion construed as a motion to reopen.     The regulations

15   provide that “a party may file only one motion to reopen

16   deportation or exclusion proceedings . . . and that motion

17   must be filed no later than 90 days after the date on which

18   the final administrative decision was rendered in the

19   proceeding sought to be reopened, or on or before September

20   30, 1996, whichever is later.”    8 C.F.R. § 1003.2(c)(2).

21   Chen’s March 2009 motion was indisputably untimely because

22   she filed it more than a decade after the IJ’s March 1998 in


                                   4
1    absentia order.   However, the time limitation does not apply

2    when the alien can establish materially “changed

3    circumstances arising in the country of nationality.”      8

4    C.F.R. § 1003.2(c)(3)(ii).

5        Here, although Chen asserted in her motion that she was

6    eligible for asylum, the BIA correctly denied her motion

7    because she made no argument that country conditions in

8    China had changed.    Before this Court, Chen waives any

9    challenge to the BIA’s denial of her motion for this reason.

10   See Yueqing Zhang v. Gonzalez, 426 F.3d 540, 542 n.1, 546

11   n.7 (2d Cir. 2008).    Accordingly, we have no reason to

12   disturb the BIA’s April 2009 order.

13       For the foregoing reasons, the petition for review is

14   DENIED.   As we have completed our review, any pending motion

15   for a stay of removal in this petition is DISMISSED as moot.

16   Any pending request for oral argument in this petition is

17   DENIED in accordance with Federal Rule of Appellate

18   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

19                                FOR THE COURT:
20                                Catherine O’Hagan Wolfe, Clerk
21
22
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