     14-475
     Quizhpi v. Lynch
                                                                                                 BIA
                                                                                          Montante, IJ
                                                                                         A096 442 333

                             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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 1st day of May, two thousand fifteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            JOSÉ A. CABRANES,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   JORGE QUIZHPI,
14            Petitioner,
15
16                      v.                                            14-475
17                                                                    NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL*,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Michael E. Piston, New York, New
25                                       York.
26


     *Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is
     automatically substituted for former Attorney General Eric H. Holder, Jr.
 1   FOR RESPONDENT:            Joyce R. Branda, Acting Assistant
 2                              Attorney General; John S. Hogan,
 3                              Assistant Director; Matthew A.
 4                              Spurlock, Trial Attorney, Office of
 5                              Immigration Litigation, Civil
 6                              Division, United States Department
 7                              of Justice, Washington D.C.
 8
 9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13        Jorge Quizhpi, a native and citizen of Ecuador, seeks

14   review of a January 23, 2014, decision of the BIA, affirming

15   the May 7, 2012, decision of an Immigration Judge (“IJ”),

16   denying his motion to reopen.        In re Jorge Quizhpi, No. A096

17   442 333 (B.I.A. Jan. 23, 2014), aff’g No. A096 442 333

18   (Immig. Ct. Buffalo May 7, 2012).            We assume the parties’

19   familiarity with the underlying facts and procedural history

20   in this case.

21        Under    the   circumstances      of    this     case,   we   have

22   considered both the IJ’s and the BIA’s opinions “for the

23   sake of completeness.”     Wangchuck v. Dep’t of Homeland Sec.,

24   448 F.3d 524, 528 (2d Cir. 2006).           The applicable standards

25   of   review   are   well    established.            See   8   U.S.C.   §
                                      2
 1   1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

 2   Cir. 2009).

 3          We review the denial of motions to reopen for abuse of

 4   discretion.       See Jian Hui Shao v. Mukasey, 546 F.3d 138,

 5   168-69, 173 (2d Cir. 2008).             A motion to rescind an in

 6   absentia removal order is reviewed under the same standard

 7   as a motion to reopen.       See Alrefae v. Chertoff, 471 F.3d

 8   353, 357 (2d Cir. 2006).         Generally, a motion to rescind

 9   must be filed within 180 days of a removal order.            8 U.S.C.

10   § 1229a(b)(5)(C)(i).      The deadline may be tolled, however,

11   if an alien can demonstrate that he did not receive proper

12   notice of the hearing.     Id.

13   § 1229a(b)(5)(C)(ii).

14          Quizhpi received proper notice because his Notice of

15   Hearing was mailed to his last known address, which was

16   provided on the Notice to EOIR: Alien Address (Form I-830).

17   See 8 U.S.C. § 1229(c).          Quizhpi asserted that he never

18   lived at the address provided on the I-830, and that his

19   bond    obligor    had   provided       that   address   without   his

20   knowledge.    However, the I-830 stated that it was Quizhpi

21   who had provided the address.
                                         3
 1       Accordingly, because the record supports the agency’s

 2   finding    that    Quizhpi    did   not   provide   a   correct   updated

 3   address,     it did not err in finding that Quizhpi could not

 4   “evade delivery of a properly sent [Notice of Hearing] by

 5   relocating     without       providing    the   required     change    of

 6   address[.]”       See Matter of M-R-A-, 24 I. & N. Dec. 665, 675

 7   (B.I.A. 2008); Maghradze v. Gonzales, 462 F.3d 150, 154 (2d

 8   Cir. 2006) (finding permissible the BIA’s determination that

 9   an alien who fails to provide an update of a change of

10   address is deemed to have constructively received notice in

11   accordance with 8 U.S.C. § 1229(a)).

12       Quizhpi argues that he was denied due process because

13   he was not given the opportunity to cross-examine the

14   immigration officer who prepared the I-830.             But Quizhpi was

15   afforded an opportunity to argue that issue before the BIA

16   because the IJ’s reliance on that document presupposed its

17   reliability.      See Burger v. Gonzales, 498 F.3d 131, 134 (2d

18   Cir. 2007) (noting that a due process violation requires

19   showing lack of notice and opportunity to be heard or

20   deprivation of fundamental fairness).



                                          4
 1       Quizhpi does not challenge the agency’s determination

 2   that, to the extent that he sought reopening to apply for

 3   adjustment of status, his motion was untimely and he failed

 4   to establish prima facie eligibility for that relief.               He

 5   has therefore waived review of that issue.        Yueqing Zhang v.

 6   Gonzales, 426 F.3d 540, 542 n.1 (2d Cir. 2005).

 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




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