         10-3621-ag
         Peng v. Holder
                                                                                         BIA
                                                                                 A073 629 530


                               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 New
 4       York, on the 15th day of September, two thousand eleven.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _________________________________________
12
13       HUA GUO PENG,
14                Petitioner,
15
16                        v.                                   10-3621-ag
17                                                             NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:               Eric Zheng, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney General;
26                                     Anthony P. Nicastro, Senior Litigation
27                                     Counsel; Joanna L. Watson, Trial
28                                     Attorney, Office of Immigration
29                                     Litigation, United States Department of
30                                     Justice, Washington, D.C.
 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 is

 4   DENIED.

 5       Petitioner Hua Guo Peng, a native and citizen of China,

 6   seeks review of an August 11, 2010, decision of the BIA

 7   denying his motion to rescind and reopen.     In re Hua Guo Peng,

 8   No. A073 629 530 (B.I.A. Aug. 11, 2010).     We assume the

 9   parties’ familiarity with the underlying facts and procedural

10   history of the case.

11       Motions to reopen removal proceedings in which an alien

12   was ordered removed in absentia are governed by different

13   rules depending on whether the movant seeks to rescind the in

14   absentia removal order or present new evidence of his

15   eligibility for relief.    See Song Jin Wu v. INS, 436 F.3d 157,

16   163 (2d Cir. 2006); In re M-S-, 22 I. & N. Dec. 349, 353-55

17   (B.I.A. 1998) (en banc).   Accordingly, when, as here, an alien

18   files a motion that seeks both rescission of an in absentia

19   removal order, as well as reopening of removal proceedings

20   based on new evidence, we treat the motion as comprising

21   distinct motions to rescind and to reopen.     See Alrefae v.

22   Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); see also Maghradze


                                     2
 1   v. Gonzales, 462 F.3d 150, 152 n.1 (2d Cir. 2006).     We review

 2   the denial of a motion to rescind an in absentia removal order

 3   under the same abuse of discretion standard applicable to

 4   motions to reopen.     See Alrefae, 471 F.3d at 357; see also

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

 6   When the BIA considers relevant evidence of country conditions

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

 8   findings under the substantial evidence standard.     See Jian

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

10   review de novo questions of law and the application of law to

11   undisputed fact.     See Salimatou Bah v. Mukasey, 529 F.3d 99,

12   110-11 (2d Cir. 2008).

13   A.   BIA’s Jurisdiction

14        The BIA did not err in exercising jurisdiction over

15   Peng’s motion.     An immigration judge (“IJ”) may “reopen or

16   reconsider any case in which he or she has made a decision,

17   unless jurisdiction is vested with the Board of Immigration

18   Appeals.”   8 C.F.R. § 1003.23(b)(1); see also Matter of

19   Patino, 23 I. & N. Dec. 74, 76 (BIA 2001) (stating that “until

20   such time as an appeal is properly before the Board, the

21   Immigration Judge has continuing jurisdiction to entertain

22   motions regarding proceedings that were previously before the


                                      3
 1   Immigration Judge”).     Jurisdiction to reopen, reconsider, or

 2   rescind vests with the BIA in “any case in which it has

 3   rendered a decision.”     8 C.F.R. § 1003.2(a).   Because the BIA

 4   issued a decision in Peng’s proceedings in 2007, jurisdiction

 5   had vested with the BIA when he filed his second motion in

 6   2009.   See id.

 7   B.   Motion to Rescind

 8        Peng argues that his in absentia removal order should

 9   have been rescinded because he did not receive notice of his

10   hearing due to his immigration consultant’s misconduct in

11   providing his own, not Peng’s, address on the asylum

12   application.      An order of removal entered in absentia may be

13   rescinded at any time if the alien demonstrates that he did

14   not receive notice as required. 8 U.S.C. § 1229a(b)(5)(C)(ii);

15   8 C.F.R. § 1003.23(b)(4)(ii).     Based on a prior decision of

16   this Court in Peng’s proceedings, the law of the case doctrine

17   is that Peng is presumed to have received notice of his

18   hearing by certified mail delivery of a Notice to Appear.        See

19   United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 2002)

20   (“The law of the case ordinarily forecloses relitigation of

21   issues expressly or impliedly decided by the appellate

22   court.”) (internal quotation marks omitted).      A presumption of


                                       4
 1   receipt may be overcome by an assertion of non-delivery or

 2   improper delivery if supported by “substantial and probative

 3   evidence such as documentary evidence from the Postal Service,

 4   third party affidavits, or other similar evidence . . . . ”

 5   Matter of Grijalva, 21 I. & N. Dec. 27, 37 (BIA 1995); cf.

 6   Lopes v. Gonzales, 468 F.3d 81, 86 (2d Cir. 2006) (providing

 7   that a less stringent standard applies in the context of

 8   regular mail, and that the agency’s failure to consider all

 9   the evidence relevant to petitioner’s claim of non-receipt was

10   an abuse of discretion).

11        The BIA reasonably rejected Peng’s claim that he did not

12   receive the Notice to Appear because he submitted evidence

13   contradicting his argument that the Notice was sent to his

14   immigration consultant.    See Matter of Grijalva, 21 I. & N.

15   Dec. at 37 (finding that “[a] bald and unsupported denial of

16   receipt of certified mail notices is not sufficient to support

17   a motion to reopen to rescind an in absentia order”).

18   Accordingly, the BIA did not abuse its discretion in declining

19   to rescind the in absentia removal order.    See 8 U.S.C.

20   § 1229a(b)(5)(C).

21   C.   Motion to Reopen

22        The BIA also did not abuse its discretion in denying


                                     5
 1   Peng’s motion to reopen as untimely.   An alien may file only

 2   one motion to reopen and must do so within 90 days of the

 3   agency’s final administrative decision.    8 U.S.C.

 4   § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).    Although Peng’s

 5   motion to reopen was indisputably untimely because it was

 6   filed more than eleven years after the IJ’s in absentia

 7   removal order, see 8 U.S.C. § 1229a(c)(7)(C)(i), there is no

 8   time limitation for filing a motion to reopen if it is “based

 9   on changed country conditions arising in the country of

10   nationality or the country to which removal has been ordered,

11   if such evidence is material and was not available and would

12   not have been discovered or presented at the previous

13   proceeding.”   8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

14   § 1003.2(c)(3)(ii).

15       The BIA did not abuse its discretion in finding that

16   Peng’s new membership in the China Democracy Party (“CDP”)

17   constituted a change in his personal circumstances, rather

18   than a change in country conditions sufficient to excuse the

19   untimely filing of his motion to reopen.    See Li Yong Zheng v.

20   U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005)

21   (explaining that a change in “personal circumstances in the

22   United States” did not constitute a change in country


                                    6
 1   conditions excusing the filing deadline for motions to

 2   reopen).    We do not consider the evidence Peng discusses in

 3   his brief because it was not included in the record before the

 4   agency.    See 8 U.S.C. § 1252(b)(4)(A) (providing that this

 5   Court must “decide the petition only on the administrative

 6   record on which the order of removal is based”).    In any

 7   event, the BIA did not err in finding that Peng’s evidence,

 8   which included a World Journal article that was not translated

 9   from Chinese to English, copies of photographs of unidentified

10   CDP protestors, and a list of CDP political prisoners, did not

11   identify a change in conditions in China.    Because the record

12   does not compel the conclusion that the treatment of CDP

13   members in China had changed materially since the time of

14   Peng’s 1998 proceedings before the IJ, see 8 U.S.C.

15   § 1229a(c)(7)(C)(ii); see also Jian Hui Shao, 546 F.3d at 169,

16   the BIA did not abuse its discretion in denying Peng’s motion

17   to reopen as untimely, see 8 U.S.C. § 1229a(c)(7)(C)(i); see

18   also 8 C.F.R. § 1003.2(c)(3)(ii).

19       For the foregoing reasons, the petition for review is

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

21   that the Court previously granted in this petition is VACATED,

22   and any pending motion for a stay of removal in this petition


                                     7
1   is DISMISSED as moot. Any pending request for oral argument in

2   this petition is DENIED in accordance with Federal Rule of

3   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

4   34(b).

5                              FOR THE COURT:
6                              Catherine O’Hagan Wolfe, Clerk
7




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