                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 09-3081
                                     ___________

                                  YONG-SHAO MA,
                                                      Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                              Respondent
                    ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A072-495-552)
                    Immigration Judge: Honorable Eugene Pugliese
                      ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 March 10, 2011
        Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

                            (Opinion filed: March 17, 2011)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Yong-Shao Ma, a native and citizen of China, has been in removal proceedings

since 1992, when he arrived illegally in the United States. In December 1992, Ma

received the Form-122 charging document, which informed him that he would be

required to appear for a hearing before an Immigration Judge (“IJ”). R. 27. The notice
did not specify the hearing date or time. Id. Ma was later mailed a September 13, 1993

hearing notice, scheduling a hearing before the IJ on September 28, 1993. R. 194. Ma

failed to appear and, on September 28, 1993, IJ issued an in absentia removal order.

      Approximately fifteen years later,1 after being detained, Ma moved to reopen the

proceedings and to rescind the in absentia removal order pursuant to 8 C.F.R.

„ 1003.23(b)(4)(iii)(B). On December 12, 2008, the IJ issued a short, handwritten order

denying the motion. The IJ noted that Ma conceded service of the charging document

and that the hearing notice was sent to the address that Ma had most recently provided

(the address appearing on two pro se motions for a change of venue filed in February and

March 1993, R. 29, 201).2 The IJ concluded that Ma provided “meager evidence in

support of his motion” and did not “establish >reasonable cause=” for the September 1993

failure to appear. See 8 C.F.R. „ 1003.23(b)(4)(iii)(B) (“A motion to reopen exclusion

hearings on the basis that the Immigration Judge improperly entered an order of

exclusion in absentia must be supported by evidence that the alien had reasonable cause

for his failure to appear.”). Accordingly, the IJ denied the motion. Ma appealed and the

Board of Immigration Appeals (“BIA”) dismissed the appeal.

      Ma presents a petition for review of the BIA‟s order. We have jurisdiction



      1
         In the intervening time, apparently in the late 1990‟s, Ma sought adjustment of
status based upon his first marriage. That application was rejected. Ma‟s first wife died
in 1998.
      2
          The IJ noted in his decision that the venue change Awas never granted.@

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pursuant to 8 U.S.C. § 1252(a). Review of the BIA‟s decision to deny the motion to

reopen is under a highly deferential abuse of discretion standard. See Guo v. Ashcroft,

386 F. 3d 556, 562 (3d Cir. 2004). The discretionary decision is not disturbed unless it is

found to be arbitrary, irrational, or contrary to law. See id.

       We cannot conclude that the BIA‟s decision was arbitrary, irrational, or contrary

to law. A motion to reopen seeking rescission of an in absentia removal order must be

filed within 180 days of the removal order and must demonstrate “exceptional

circumstances,” unless it is based upon lack of notice or the individual was in custody at

the time. See INA § 240(b)(5)(C)(i), (ii) [8 U.S.C. § 1229a(b)(5)(C)(i), (ii)]. Ma‟s

motion, filed fifteen years after the in absentia removal order, was clearly not filed within

180 days, and there is no evidence that Ma was in custody at the time. Accordingly, Ma

was required to establish that he did not receive notice of the September 1993 hearing.

See INA § 240(b)(5)(C)(ii) [8 U.S.C. § 1229a(b)(5)(C)(ii)] (a motion to reopen based on

lack of notice may be filed “at any time”).

       As the BIA noted, the Immigration Court mailed the September 1993 hearing

notice to the address Ma provided in March 1993. Ordinary mail that is properly sent is

presumed to be received by the addressee. Santana-Gonzalez v. Attorney Gen. of the

United States, 506 F.3d 274, 278 (3d Cir. 2007). An individual may rebut that

presumption by producing sufficient contrary evidence, such as a sworn affidavit

supported by circumstantial evidence corroborating the claim of non-receipt. See id. At

280. The BIA ruled that Ma failed to present evidence sufficient to rebut the presumption
                                              3
of receipt. See Matter of M-R-A-, 24 I&N Dec. 665, 674 (BIA 2008).

       Among other things, the BIA took note of the fact that Ma failed to submit a

personal affidavit in support of his motion and indeed, provided “no evidence of

nonreceipt of the September 13, 1993, notice of hearing.” Ma complains that the IJ

improperly “categorically” rejected an affidavit submitted by his fiancée, Mei Huang.

However, the IJ and the BIA acknowledged Huang‟s affidavit. Discounting the weight of

the evidence in the affidavit because it was based on hearsay was not impermissible. See

Kiareldeen v. Ashcroft, 273 F.3d 542, 549 (3d Cir. 2001). Furthermore, the affidavit

does not rebut the presumption that Ma received notice of the hearing; it reflects only that

Ma told Huang that he did not receive notice of the deportation order prior to his arrest in

2008. R. 83. In rejecting Ma‟s motion, the BIA also found it persuasive that Ma made

no effort to learn the status of his removal proceedings during the fifteen-year period

following his 1993 motion to change venue.

       In short, evidence supports the conclusion that Ma did not prove that he failed to

receive notice of the 1993 hearing. Accordingly, the BIA did not err in affirming the IJ‟s

conclusion that Ma had not shown reasonable cause for his failure to appear at his

hearing. (Also, despite Ma‟s claim to the contrary, the IJ issued a reasoned decision that

addressed the pertinent issues.)

       We note that Ma presents other arguments that do not relate to his receipt of the

hearing notice. One argument relates to the I-122 charging document, which he

undisputedly received. Ma cites the version of 8 C.F.R. § 235.6(a) that was effective at
                                             4
the time, which, he argues, required that the I-122 notice had to be read and explained to

him in a language he could understand, and that he had to be advised of his right to

representation by counsel. Ma argues that because the agency did not explain in his

native language the consequences of a failure to appear at a scheduled hearing, Ma=s

failure to appear should be excused and the proceedings should be reopened.

       However, Ma‟s argument is unconvincing. Ma did not submit any evidence that

he was unable to read or understand the I-122 charging document. The record reflects

that Ma received and understood at least some of the hearing notices sent to him, because

he responded to them by seeking to change venue. R. 34. Indeed, Ma‟s March 1993

venue motion not only demonstrates that he was aware of one of the scheduled hearings,

but also reflects that Ma knew he had the right to obtain counsel, as he expressly states

that he attempted to hire an attorney but could not afford one. See id. Also, he did not

submit evidence to rebut the presumption that the agency complied with the regulation he

cites. See Kephart v. Richardson, 505 F.2d 1085, 1090 (3d Cir. 1974) (“A presumption

of regularity surrounds public officers to the extent that, in the absence of contrary

evidence, a reviewing court assumes that they have properly discharged their official

duties.”)

       We have reviewed Ma‟s remaining arguments and conclude that they are without

merit. Accordingly, and for the reasons given above, we will deny his petition for

review.


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