     17-2784
     Silva-Silva v. Barr
                                                                                    BIA
                                                                               Straus, IJ
                                                                           A200 031 712
                                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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 6th day of November, two thousand nineteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            SUSAN L. CARNEY,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   ERICO SILVA-SILVA, AKA ANDERSON
14   ERICO DA SILVA,
15            Petitioner,
16
17                         v.                                    17-2784
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                       Jeffrey A. Devore, Esq., Palm
25                                         Beach Gardens, FL.
26
27   FOR RESPONDENT:                       Chad A. Readler, Acting Assistant
28                                         Attorney General; Erica B. Miles,
29                                         Senior Litigation Counsel; Enitan
30                                         O. Otunla, Trial Attorney, Office
31                                         of Immigration Litigation, United
32                                         States Department of Justice,
33                                         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

4    is DENIED.

5        Petitioner Erico Silva-Silva, a native and citizen of

6    Brazil, seeks review of an August 10, 2017, decision of the

7    BIA affirming a March 20, 2017, decision of an Immigration

8    Judge    (“IJ”)   denying   Silva-Silva’s   motion   to   reopen   his

9    removal proceedings and rescind his removal order.             In re

10   Erico Silva-Silva, No. A 200 031 712 (B.I.A. Aug. 10, 2017),

11   aff’g No. A 200 031 712 (Immig. Ct. Hartford Mar. 20, 2017).

12   We assume the parties’ familiarity with the underlying facts

13   and procedural history in this case.

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

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

16   Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006).               We

17   review the denial of a motion to reopen and rescind an in

18   absentia removal order for abuse of discretion.           See Alrefae

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

20       There are two grounds to rescind an in absentia removal

21   order: (1) lack of notice of the hearing; and (2) exceptional
                                       2
1    circumstances      for      failure     to          appear     if     rescission    is

2    requested    within      180    days.           8    U.S.C.    §    1229a(b)(5)(C);

3    8 C.F.R. § 1003.23(b)(4)(ii).                   Only the first provision is

4    at issue because Silva-Silva filed his motion to reopen and

5    rescind more than 10 years after the IJ entered the removal

6    order.

7           If, as here, notice was “served via regular mail,” there

8    is “a ‘less stringent, rebuttable presumption’ of receipt”

9    than if served by certified mail.                      Silva-Carvalho Lopes v.

10   Mukasey, 517 F.3d 156, 159 (2d Cir. 2008) (quoting Alrefae,

11   471 F.3d at 359).           The agency “must consider all of the

12   petitioner’s evidence (circumstantial or otherwise) in a

13   practical    fashion,       guided     by       common       sense,    to    determine

14   whether the slight presumption of receipt of regular mail has

15   more    probably     than      not    been          overcome.”         Id.   at    160.

16   Importantly, however, for aliens who receive notice of their

17   obligation to inform the immigration court of any change in

18   address and of the consequences of failing to do so, in

19   compliance with 8 U.S.C § 1229(a), the “requirement that an

20   alien    ‘receive’    notice         [is]       constructively         satisfied    if

21   notice is properly provided and the alien changes address
                                                 3
1    without informing” the agency.          Maghradze v. Gonzales, 462

2    F.3d 150, 154 (2d Cir. 2006).

3        The    agency     may   consider,   among   other     evidence,   the

4    following:

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

24   The agency did not abuse its discretion in denying Silva-

25   Silva’s motion to rescind.

26       First,      the     agency   reasonably     applied     the   slight

27   presumption that Silva-Silva received notice of his May 2006

28   hearing based on the following.          In July 2005, Silva-Silva

29   was personally served with, and signed and fingerprinted, a

30   Notice    to   Appear    (“NTA”),   which   placed   him    in    removal
                                         4
1    proceedings, informed him of the time, date, and place of a

2    hearing in Connecticut, and warned him that he could be

3    ordered removed in absentia if he failed to provide a change

4    of address.   He does not allege that he appeared at the time

5    and place listed in the NTA.            Moreover, hearing notices

6    mailed to that address in 2005 and 2006 were returned to the

7    immigration court.       Although these return notices indicate

8    that Silva-Silva did not actually receive the notices, he “is

9    deemed to be in constructive receipt of properly-provided

10   notice — and hence ineligible for rescission of his in

11   absentia   order    of   removal   —   if   he   thwarted   delivery.”

12   Maghradze, 462 F.3d at 153-54.         The agency did not abuse its

13   discretion in concluding that Silva-Silva thwarted delivery:

14   even crediting his allegation that the Connecticut address

15   was wrong, he received the NTA and Form I-213 that contained

16   the incorrect address, as well as a warning about changing

17   the address and the consequences of failure to appear in the

18   Connecticut immigration court, which was the court listed on

19   his NTA.   Because the agency sent the hearing notices to his

20   address of record, he is presumed to be in receipt of the

21   notices.      See   Silva-Carvalho      Lopes,   517   F.3d   at   160;
                                        5
1    Maghradze, 462 F.3d at 153-54.

2        Nor did Silva-Silva rebut the presumption of receipt.

3    His affidavit did not explain why he failed to challenge the

4    erroneous address or the fact that the NTA listed the hearing

5    location as Connecticut.      Therefore, his affidavit provided

6    no basis for finding the presumption of receipt overcome.

7    See Maghradze, 462 F.3d at 154.

8        The agency also reasonably found it troubling that Silva-

9    Silva failed to inquire into the status of his removal

10   proceedings or apply for relief in those proceedings for

11   approximately 12 years.       See Matter of M-R-A-, 24 I. & N.

12   Dec. at 674 (holding that agency may consider movant’s due

13   diligence in seeking to rectify in absentia order and his

14   prima   facie   eligibility   for       relief   at   time   of   original

15   hearing).   His affidavit did not describe any action he took

16   in the almost 12 years that passed between service of the NTA

17   and his motion to reopen and rescind.            Therefore, given that

18   Silva-Silva failed to inquire about or apply for relief until

19   his visa petition was approved in 2015, he did not demonstrate

20   that he had an incentive to appear at his hearing and would

21   have done so had he received notice in 2006.             See id.
                                         6
1          Finally,    Silva-Silva’s     argument     that    his   failure    to

2    appear stemmed from the lack of a written translation of the

3    NTA    is   unavailing.     There    is    no   requirement      that    the

4    Government provide a written translation of the NTA.                See 8

5    U.S.C. § 1229(a)(1); Lopes v. Gonzales, 468 F.3d 81, 84-85

6    (2d Cir. 2006) (“[W]e reject [petitioner’s] claim that the

7    notices to appear were defective because they did not advise

8    him in his native Portuguese . . . . The relevant statute

9    does not require that notice be provided in any particular

10   language.”).      The record adequately demonstrates that Silva-

11   Silva received the requisite oral notice in Portuguese of the

12   time and place of his hearing and the consequences of failing

13   to appear, and the NTA instructed him to appear before an IJ

14   at    “Ribicoff   Federal   Building      450   Main    Street   Room    509

15   Hartford CONNECTICUT US.”         Certified Administrative Record

16   at 118.

17         In sum, because Silva-Silva was personally served with

18   an NTA that listed both his address and hearing location as

19   Connecticut and warned of the consequences of failing to give

20   notice of a change of his address, Silva-Silva has not

21   overcome the presumption of receipt, and the agency did not
                                         7
1   abuse its discretion in declining to rescind his in absentia

2   removal order.   See 8 U.S.C. § 1229a(b)(5)(C)(ii); see also

3   Silva-Carvalho Lopes, 517 F.3d at 160; Matter of M-R-A-, 24

4   I. & N. Dec. at 674.

5       For the foregoing reasons, the petition for review is

6   DENIED.   All pending motions are DENIED and stays VACATED.

7                               FOR THE COURT:
8                               Catherine O’Hagan Wolfe,
9                               Clerk of Court




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