         11-5246                                                                        BIA
         Chen v. Holder                                                        A073 671 561



                           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 23rd day of August, two thousand twelve.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                BARRINGTON D. PARKER,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       TIAN HE CHEN,
14                Petitioner,
15
16                        v.                                    11-5246
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Scott E. Bratton, Margaret Wong &
24                                     Associates, Cleveland, Ohio.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; David V. Bernal, Assistant
28                                     Director; Dara S. Smith, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, United States Department
31                                     of Justice, Washington, D.C.
 1
 2       UPON DUE CONSIDERATION of this petition for review of a

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

 4   ORDERED, ADJUDGED, AND DECREED that the petition for review

 5   is DENIED.

 6       Petitioner Tian He Chen, a native and citizen of the

 7   People’s Republic of China, seeks review of a December 6,

 8   2011, order of the BIA denying his motion to reopen and

 9   affirming the July 13, 2010, decision of Immigration Judge

10   (“IJ”) Brigitte LaForest denying his motion to rescind a

11   removal order entered in absentia.   In re Tian He Chen, No.

12   A073 671 561 (B.I.A. Dec. 6, 2011), aff’g No. A073 671 561

13   (Immig. Ct. N.Y.C. July 13, 2010).   We assume the parties’

14   familiarity with the underlying facts and procedural history

15   in this case.

16       We review the agency’s denial of motions to rescind and

17   reopen for abuse of discretion.   See Debeatham v. Holder,

18   602 F.3d 481, 484 (2d Cir. 2010) (per curiam).   An order of

19   removal entered in absentia may be rescinded only upon:

20   (1) a motion filed within 180 days after the date of the

21   order of removal if the alien demonstrates that the failure

22   to appear was because of exceptional circumstances; or (2) a

23   motion to reopen filed at any time if the alien demonstrates

                                  2
 1   that he did not receive notice as required and the failure

 2   to appear was through no fault of his own.    8 U.S.C.

 3   § 1229a(b)(5)(C).    Because Chen filed his motion more than

 4   12 years after the entry of the removal order, he was

 5   required to demonstrate that he did not have notice of the

 6   proceedings.

 7       A rebuttable presumption that an alien received a

 8   Notice to Appear (“NTA”) applies where the Government

 9   establishes that notice was properly sent to the alien by

10   certified mail.     See Bhanot v. Chertoff, 474 F.3d 71, 73 (2d

11   Cir. 2007) (per curiam) (holding that when the government

12   sent notice of petitioner’s changed hearing date to his most

13   recent address, a presumption of receipt applied); see also

14   Matter of Grijalva, 21 I. & N. Dec. 27, 37 (B.I.A. 1995)

15   (“[W]here service of a notice of a deportation proceeding is

16   sent by certified mail through the United States Postal

17   Service and there is proof of attempted delivery and

18   notification of certified mail, a strong presumption of

19   effective service arises.”).    Here the record includes a

20   return receipt showing that the NTA was delivered to the

21   address Chen provided in his asylum application (and signed

22   for by an individual named Chuck Lee).


                                     3
 1       Chen argues that the incorrect address listed by the

 2   travel agency he hired to prepare his application resulted

 3   in him not receiving actual delivery of the NTA, and

 4   consequently that his in absentia removal order should be

 5   rescinded.   Chen’s argument is unavailing as the error is

 6   attributable to him and insufficient to “rebut the

 7   presumption of proper notice.”    Song Jin Wu v. INS, 436 F.3d

 8   157, 162 (2d Cir. 2006); see also Hoodho v. Holder, 558 F.3d

 9   184, 192 (2d Cir. 2009) (“[A] party who voluntarily chose an

10   attorney as his representative in an action cannot avoid the

11   consequences of the acts or omissions of this freely

12   selected agent.” (internal quotation marks, brackets, and

13   ellipses omitted)).   The agency’s finding is consistent with

14   8 U.S.C. § 1229a(b)(5)(C)(ii) (providing for rescission of

15   an in absentia removal order where the alien can demonstrate

16   his failure to appear occurred “through no fault of [his

17   own]”), and the record demonstrates that Chen was, or should

18   have been, aware of the improper address when he signed and

19   dated his asylum application and swore that the contents of

20   the application were “true and correct.”

21        Finally, to the extent that Chen challenges the

22   agency’s decision not to exercise its sua sponte reopening


                                   4
 1   authority, we are without jurisdiction to review that

 2   discretionary decision.   See Ali v. Gonzales, 448 F.3d 515,

 3   518 (2d Cir. 2006) (per curiam) (a reviewing court lacks

 4   jurisdiction to review a decision of the BIA not to reopen a

 5   case sua sponte under 8 C.F.R. § 1003.2(a) because such a

 6   decision is “entirely discretionary”).

 7       For the foregoing reasons, the petition for review is

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

 9   removal that the Court previously granted in this petition

10   is VACATED, and any pending motion for a stay of removal in

11   this petition is DISMISSED as moot.    Any pending request for

12   oral argument in this petition is DENIED in accordance with

13   Federal Rule of Appellate Procedure 34(a)(2) and Second

14   Circuit Local Rule 34.1(b).

15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe, Clerk
17
18




                                    5
