         13-3016
         Ng v. Holder
                                                                                       BIA
                                                                                   Lamb, IJ
                                                                               A088 440 430
                             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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 13th day of January, two thousand fifteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       SAU LAN NG,
14                Petitioner,
15
16                      v.                                      13-3016
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Chunyu Jean Wang, Flushing, New
25                                     York.
26
27       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
28                                     General; Stephen J. Flynn, Assistant
29                                     Director; Karen Stewart, Attorney,
 1                           Office of Immigration Litigation,
 2                           Civil Division, United States
 3                           Department of Justice, Washington
 4                           D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10       Sau Lan Ng, a native and citizen of China, seeks review

11   of a July 24, 2013, decision of the BIA affirming the April

12   2, 2012, decision of an Immigration Judge (“IJ”), denying

13   her motion to rescind her in absentia removal order.     In re

14   Sau Lan Ng, No. A088 440 430 (B.I.A. July 24, 2013), aff’g

15   No. A088 440 430 (Immig. Ct. N.Y. City Apr. 2, 2012).    We

16   assume the parties’ familiarity with the underlying facts

17   and procedural history in this case.

18       Under the circumstances of this case, we have reviewed

19   the IJ’s and BIA’s decisions “for the sake of completeness.”

20   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d

21   Cir. 2006).   We review the denial of a motion to rescind an

22   in absentia removal order for abuse of discretion.     Alrefae

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

24       An in absentia removal order may be rescinded upon a

25   motion to reopen filed within 180 days after the date of the

                                   2
 1   removal order if the alien demonstrates that his failure to

 2   appear was due to “exceptional circumstances.”   8 U.S.C. §

 3   1229a(b)(5)(C)(i).   “Exceptional circumstances are defined

 4   as ‘circumstances (such as battery or extreme cruelty to the

 5   alien or any child or parent of the alien, serious illness

 6   of the alien, or serious illness or death of the spouse,

 7   child, or parent of the alien, but not including less

 8   compelling circumstances) beyond the control of the alien.’”

 9   Alrefae, 471 F.3d at 358 (quoting 8 U.S.C. § 1229a(e)(1)).

10   The agency did not abuse its discretion in determining that

11   Ng failed to demonstrate such circumstances.

12       Ng does not dispute that she received oral and written

13   notice of the February 2, 2012, hearing.   As the agency

14   concluded, her misreading of that notice did not constitute

15   exceptional circumstances beyond her control.    See In re S-

16   M-, 22 I. & N. Dec. 49, 51 (BIA 1998); see also 8 U.S.C.

17   § 1229a(e)(1).   The record does not support her contention

18   that the agency failed to consider the totality of the

19   circumstances.   She does not point to any evidence that the

20   agency failed to consider that would have supported a

21   finding that her failure to appear was beyond her control.

22



                                   3
 1       Ng failed to exhaust before the BIA her argument that

 2   the IJ erred in finding that she had conceded removability.

 3   See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107

 4   n.1, 122 (2d Cir. 2007).   Nevertheless, we note that she

 5   stated under oath that she entered the United States without

 6   inspection or admission as charged in her Notice to Appear.

 7   We do not consider her argument that she should have been

 8   granted a continuance because she did not raise that

 9   argument before the IJ, and the BIA declined to address it

10   on appeal.   See Lin Zhong, 480 F.3d at 122.

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

14   is VACATED, and any pending motion for a stay of removal in

15   this petition is DISMISSED as moot.    Any pending request for

16   oral argument in this petition is DENIED in accordance with

17   Federal Rule of Appellate Procedure 34(a)(2), and Second

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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