    08-4532-ag
    Ma v. Holder
                                                                                   BIA
                                                                               Chew, IJ
                                                                           A073 524 435
                    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 28 th day of December, two thousand                nine.

    PRESENT:
             JON O. NEWMAN,
             RALPH K. WINTER,
             REENA RAGGI,
                  Circuit Judges.
    _________________________________________

    YUN-ZHEN MA,
             Petitioner,

                   v.                                      08-4532-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL, 1 UNITED STATES
    DEPARTMENT OF JUSTICE,
             Respondents.
    _________________________________________


            1
           Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), Attorney General Eric H. Holder, Jr., is
    automatically substituted for former Attorney General
    Michael B. Mukasey as a respondent in this case.
FOR PETITIONER:          Norman Kwai Wing Wong, New York, New
                         York.

FOR RESPONDENTS:         Tony West, Assistant Attorney
                         General; Leslie McKay, Assistant
                         Director; Kelly J. Walls, Trial
                         Attorney, Office of Immigration
                         Litigation, United States Department
                         of Justice, Washington, D.C.

     UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED in part and DISMISSED in part.

     Petitioner Yun-Zhen Ma, a native and citizen of the

People’s Republic of China, seeks review of the August 19,

2008 order of the BIA, affirming the May 2, 2007 decision of

Immigration Judge (“IJ”) George T. Chew, denying her motion

to reopen.    In re Yun-Zhen Ma, No. A073 524 435 (BIA Aug.

19, 2008), aff’g No. A073 524 435 (Immig. Ct. N.Y. City May

2, 2007). 1   We assume the parties’ familiarity with the



     1
      While this appeal was pending, the BIA denied Ma’s
simultaneous motion to reconsider its August 19, 2008 order.
Because Ma did not petition for review of the denial of her
motion for reconsideration, we review only the August 19,
2008 order. See Alam v. Gonzales, 438 F.3d 184, 186 (2d
Cir. 2006); see also Stone v. INS, 514 U.S. 386, 393-94
(1995) (requiring alien to petition for review of motion to
reconsider); Khouzam v. Ashcroft, 361 F.3d 161, 167 (2d Cir.
2004) (holding that BIA had jurisdiction to reconsider
initial decision after petition for review was filed).

                               2
underlying facts and procedural history of the case.

    1.   Standard of Review

    Motions to rescind in absentia removal orders are

distinct from motions to reopen removal proceedings based

on, inter alia, 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).       Because Ma sought both

types of relief, we treat her motion as comprising separate

applications 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).

    When the BIA agrees with 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 denial of

both a motion to rescind and a motion to reopen for abuse of

discretion.   See Alrefae, 471 F.3d at 357; Kaur v. BIA, 413

F.3d 232, 233-34 (2d Cir. 2005).       When the BIA considers

relevant evidence of country conditions in evaluating a

motion to reopen, we review the BIA’s factual findings for

substantial evidence.   Jian Hui Shao v. Mukasey, 546 F.3d

138, 169 (2d Cir. 2008).

                                3
      2.   Motion to Rescind

      Ma submits that her in absentia deportation order may

be rescinded because “she did not receive notice” of her

deportation hearing.   8 C.F.R. § 1003.23(b)(4)(iii)(A).

When, as in this case, “‘service of a notice of a

deportation proceeding is sent by certified mail through the

United States Postal Service and there is proof of attempted

delivery and notification of certified mail, a strong

presumption of effective service arises.’”   Alrefae, 471

F.3d at 359 (quoting In re Grijalva, 21 I. & N. Dec. 27, 37

(BIA 1995)).   The presumption “may be overcome . . . [when

the movant] present[s] substantial and probative evidence

such as documentary evidence from the Postal Service, third

party affidavits, or other similar evidence demonstrating

that there was improper delivery or that nondelivery was not

due to the respondent’s failure to provide an address where

he could receive mail.”   In re Grijalva, 21 I. & N. Dec. at

37.

      We need not decide whether the BIA improperly engaged

in de novo factfinding by determining that the IJ’s failure

to address Ma’s notice challenge was harmless, see 8 C.F.R.

§ 1003.1(d)(3)(i), because we conclude that it would be

                               4
futile, in any event, to remand this case to the BIA, see

Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d

Cir. 2005) (“[W]e are not required to remand where there is

no realistic possibility that, absent the errors, the IJ or

BIA would have reached a different conclusion.”).   The

record contains evidence that the Immigration Court sent Ma

notice of her hearing by certified mail to the address of

record for her attorney and Ma never provided any evidence

to the agency demonstrating nondelivery or her attorney’s

failure to notify her of the hearing.   See In re Grijalva,

21 I. & N. Dec. at 37. 2

    In her brief to this court, Ma suggests that certified

mail addressed to her “previous attorney, Mr. Porges” was

insufficient to put her on notice.   Pet’r’s Br. at 16.   But

there is no indication in the record that Ma retained other

counsel before the notice was mailed or that she informed


    2
       We have jurisdiction to consider whether Ma
demonstrated that she had not received notice of her
February 1996 hearing because, although she abandoned any
such argument before the BIA, the BIA found that Ma’s
attorney of record had received notice of her hearing by
certified mail and noted that she did not assert that her
attorney had failed to notify her of her hearing date. See
Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 296-97
(2d Cir. 2006) (holding that when BIA addresses issues not
raised by petitioner, those issues are considered exhausted
and may be reviewed by this court).

                             5
the agency of this fact.     Moreover, Ma’s allegation that

“Mr. Porges has been convicted of illegal and unethical

legal practices,” id. at 17, is insufficient to permit the

BIA to rescind her removal order.     While ineffective

assistance of counsel may constitute “exceptional

circumstances” permitting rescission, see Aris v. Mukasey,

517 F.3d 595, 596, 600 (2d Cir. 2008), Ma’s motion was filed

well after the 180-day deadline for motions to rescind under

8 C.F.R. § 1003.23(b)(4)(iii)(A)(1), and we are directed to

no evidence showing that Ma exercised due diligence

justifying equitable tolling, see Iavorski v. INS, 232 F.3d

124, 134 (2d Cir. 2000).

    Accordingly, to the extent Ma challenges the BIA’s

denial of her motion to rescind, we deny the petition for

review.

    3.    Motion to Reopen

    We lack jurisdiction to consider Ma’s unexhausted claim

that the BIA violated her due process rights.     See 8 U.S.C.

§ 1252(d)(1); see also Karaj v. Gonzales, 462 F.3d 113, 119

(2d Cir. 2006); Grullon v. Mukasey, 509 F.3d 107, 115 (2d

Cir. 2007) (finding that “there is no ‘manifest injustice’

exception to [8 U.S.C.] § 1252(d)’s exhaustion

                                6
requirement”).    Accordingly, we dismiss the petition for

review to the extent that Ma raises a due process claim. 3

       The agency did not abuse its discretion in denying Ma’s

motion to reopen as untimely.       An alien must file a motion

to reopen “within 90 days of the date of entry of a final

administrative order of removal, deportation, or exclusion,

or on or before September 31, 1996, whichever is later.”

8 C.F.R. § 1003.23(b)(1).    There is no dispute that Ma’s

April 2006 motion to reopen was untimely because it was

filed more than nine years after September 31, 1996.

Although there is no time limitation for an alien who did

not receive notice of her hearing to file a motion to

rescind an in absentia deportation order, see 8 C.F.R.

§ 1003.23(b)(4)(iii)(A)(2), the agency did not err in

applying the 90-day deadline insofar as she moved to reopen

proceedings based on new evidence.       See Alrefae, 471 F.3d at

357.


       3
       We recognize that the BIA may not consider
constitutional arguments. Nevertheless, Ma was required to
exhaust such argument because the BIA was able to provide
her with the requested relief, i.e., consideration of her
motion to reopen to pursue her new asylum application. See
Theodoropoulos v. INS, 358 F.3d 162, 172-73 (2d Cir. 2004)
(recognizing that there may be limited exceptions to the
statutory exhaustion requirement for claims that would offer
the party no possibility of obtaining any type of relief).

                                7
    There is also no time limit for filing a motion to

reopen if it is “based on changed country conditions arising

in the country of nationality or the country to which

removal has been ordered.”   8 C.F.R. § 1003.23(b)(4)(i).      Ma

abandons any challenge to the agency’s finding that she

failed to demonstrate changed conditions in China excusing

the untimely filing of her motion to reopen.     See Yueqing

Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.

2005) (deeming insufficiently argued issues waived).

Rather, Ma argues only that she established her prima facie

eligibility for relief based on the birth of her United

States citizen children, and this is insufficient to qualify

for the 8 C.F.R. § 1003.23(b)(4)(i) exception.     See Yong

Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d

Cir. 2005) (distinguishing changed country conditions from

changed “personal circumstances in the United States”

(emphasis in original)); see also Wei Guang Wang v. BIA, 437

F.3d 270, 274 (2d Cir. 2006) (“[I]t would be ironic, indeed,

if petitioners . . . who have remained in the United States

illegally following an order of deportation, were permitted

to have a second and third bite at the apple simply because

they managed to . . . have children while evading

authorities.   This apparent gaming of the system in an

                              8
effort to avoid deportation is not tolerated by the existing

regulatory scheme.”).   Moreover, we have previously reviewed

the agency’s analysis of evidence similar to that which Ma

submitted in this case and concluded that the agency does

not err in finding that such evidence does not demonstrate

either material changed country conditions or a reasonable

possibility of forced sterilization.    See Jian Hui Shao, 546

F.3d at 158-73.

    For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part.    As we have completed

our review, any stay of removal that the Court previously

granted in this petition is VACATED, and any pending motion

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

Any pending request for oral argument in this petition is

DENIED in accordance with Federal Rule of Appellate

Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk


                            By:___________________________




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