    09-1235-ag
    Zheng v. Holder
                                                                                    BIA
                                                                               Ferris, IJ
                                                                           A073 488 657
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

         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 24 th day of November, two thousand                nine.
    PRESENT:
             JON O. NEWMAN,
             ROBERT A. KATZMANN,
             GERARD E. LYNCH,
                    Circuit Judges.
    _______________________________________

    XIU ZHEN ZHENG,
             Petitioner,

                      v.                                   09-1235-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL, BUREAU OF CITIZENSHIP
    AND IMMIGRATION SERVICES,
             Respondents.
    _______________________________________
FOR PETITIONER:         John Chang, New York, N.Y.

FOR RESPONDENTS:        Tony West, Assistant Attorney
                        General, Civil Division, Francis W.
                        Fraser, Senior Litigation Counsel,
                        Susan Houser, Senior Litigation
                        Counsel, Office of Immigration
                        Litigation, U.S. Department of
                        Justice, Washington, D.C.


    UPON DUE CONSIDERATION of this petition for review of a

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

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

review is DENIED.

    Xiu Zhen Zheng, a native and citizen of China, seeks

review of the March 16, 2009 order of the BIA affirming the

January 2, 2008 decision of Immigration Judge (“IJ”) Noel A.

Ferris denying her motion to reopen her exclusion

proceedings.   Matter of Xiu Zhen Zheng, No. A073 488 657

(B.I.A. Mar. 16, 2009), aff’g No. A073 488 657 (Immig. Ct.

N.Y. City Jan. 2, 2008).   We assume the parties’ familiarity

with the underlying facts and procedural history of the

case.

    When the BIA adopts the decision of the IJ and

supplements the IJ’s decision, we review the decision of the

IJ as supplemented by the BIA.    See Yan Chen v. Gonzales,

417 F.3d 268, 271 (2d Cir. 2005).    We review the BIA’s

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denial of a motion to reopen for abuse of discretion.     See

Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).

    As an initial matter, motions to reopen in absentia

orders are governed by different rules depending on whether

the movant seeks to rescind the order or present new

evidence. See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir.

2006); In re M-S-, 22 I. & N. Dec. 349, 353-55 (BIA 1998)

(en banc). Accordingly, where, as here, an alien files a

motion that seeks both rescission of an in absentia

deportation order, as well as reopening of exclusion

proceedings based on new evidence, the Court treats the

motion as comprising two distinct motions to rescind and to

reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.

2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152 n.1

(2d Cir. 2006).   We address each motion in turn.

    I.   Motion to Rescind

    When an IJ orders an alien excluded in absentia, there

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

demonstrates “reasonable cause” for her failure to appear.

See 8 C.F.R. § 1003.23(b)(4)(iii)(B) (providing that, “[a]

motion to reopen exclusion hearings on the basis that the

[IJ] improperly entered an order of exclusion in absentia


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must be supported by evidence that the alien had reasonable

cause for [her] failure to appear”); Matter of N-B-, 22 I &

N Dec. 590 (BIA 1999); Matter of Ruiz, 20 I & N Dec. 91, 92-

93 (BIA 1989).

    The BIA did not err in finding that Zheng failed to

demonstrate “reasonable cause” for her failure to appear at

her April 1995 merits hearing.      See 8 C.F.R.

§ 1003.23(b)(4)(iii)(B).     As the BIA noted, Zheng’s

explanation was that she was advised not to appear by her

attorney because she was likely to lose her case and be

detained, if not deported.     The BIA found this explanation

“insufficient to excuse her absence.”      In her brief, Zheng

argues that the advice she relied on in 1995 is “on its face

ineffective assistance of counsel.”      Though we recognize

that aliens may not lightly disregard the advice of counsel,

see Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir. 2008)

(noting that aliens are often “unfamiliar with our language

and culture” and therefore holding that “misadvice [from an

attorney] may constitute ineffective assistance of

counsel”), we are unable to find an abuse of discretion in

the agency’s refusal to accept this explanation as

“reasonable cause” for a failure to appear, particularly


                                4
because Zheng was informed of the consequences.       Indeed,

crediting Zheng’s explanation would have the perverse effect

of encouraging aliens to avoid agency proceedings at which

they are likely to lose, only to return when their prospects

are better.     See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74

(2d Cir. 2006).

II.   Motion to Reopen

      The BIA also did not abuse its discretion in denying

Zheng’s motion to reopen.     The regulations provide that “a

party may file only one motion to reopen deportation or

exclusion proceedings . . . and that motion must be filed no

later than 90 days after the date on which the final

administrative decision was rendered in the proceeding

sought to be reopened, or on or before September 30, 1996,

whichever is later.”     8 C.F.R. § 1003.2(c)(2).

Indisputably, Zheng’s October 2007 motion was untimely

because she filed it more than twelve years after the IJ’s

April 1995 in absentia order.       However, the time limitation

does not apply when the alien can establish materially

“changed circumstances arising in the country of

nationality.”     8 C.F.R. § 1003.2(c)(3)(ii).    When the BIA

considers relevant evidence of country conditions in


                                5
evaluating a motion to reopen, we review the BIA’s factual

findings under the substantial evidence standard.     See Jian

Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

    Despite Zheng’s arguments, we are not compelled to

conclude that the agency ignored the evidence she submitted.

See Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 336

n.17 (2d Cir. 2006) (“[W]e presume that [the agency] has

taken into account all of the evidence before [it] unless

the record compellingly suggests otherwise.”).   Nor do we

find that the BIA erred in declining to credit that

evidence, which included a “Notice” allegedly from a county

family planning office and an unauthenticated letter from a

family member.   See Jian Hui Shao, 546 F.3d at 165

(concluding that “unattributed reports” did not, by

themselves, persuasively demonstrate a reasonable

possibility that petitioner would face future persecution);

Qin Wen Zheng v. Gonzales, 500 F.3d 143, 149 (2d Cir. 2007)

(addressing a similar “Village Notice,” and holding that

“the BIA did not abuse its discretion in declining to

consider a document-questionable on its face, supported only

by a spouse’s affidavit, and not authenticated pursuant to

regulation-that attempts to establish the sweeping


                              6
proposition that subsequent to the date of the petitioner’s

entry into the country and application for asylum, country

conditions had undergone a material adverse change

sufficient to affect his petition for asylum”).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

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


                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk

                            By:___________________________




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