         10-1393-ag
         Chen v. Holder
                                                                                       BIA
                                                                               A075 405 071
                           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
 4       New York, on the 15th day of June, two thousand eleven.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                GUIDO CALABRESI,
 9                RAYMOND J. LOHIER, JR.,
10                      Circuit Judges.
11       ______________________________________
12
13       XIAOYONG CHEN, AKA XIAO-YONG CHEN,
14                Petitioner,
15                                                              10-1393-ag
16                        v.                                    NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Theodore N. Cox, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Daniel E. Goldman, Senior
27                                     Litigation Counsel; Jonathan
28                                     Robbins, Attorney, Office of
29                                     Immigration Litigation, Civil
30                                     Division, United States Department
31                                     of Justice, Washington, D.C.
32
 1
 2       UPON DUE CONSIDERATION of this petition for review of a

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

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

 5   is DENIED.

 6       Petitioner, Xiaoyong Chen, a native and citizen of the

 7   People’s Republic of China, seeks review of a March 16, 2010

 8   decision of the BIA denying his motion to rescind an in

 9   absentia order and reopen his removal proceedings.   In re

10   Xiaoyong Chen, No. A075 405 071 (B.I.A. March 16, 2010).     We

11   assume the parties’ familiarity with the underlying facts

12   and procedural history of the case.

13       When, as here, an alien files a motion that seeks both

14   to rescind an in absentia order of deportation and to reopen

15   proceedings based on new evidence, we treat the motion as

16   comprising distinct motions to rescind and to reopen. See

17   Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); see

18   also Maghradze v. Gonzales, 462 F.3d 150, 152 n.1 (2d Cir.

19   2006).   We address separately each of Chen’s motions below,

20   reviewing the BIA’s decision for abuse of discretion.     See

21   Alrefae, 471 F.3d at 357; Kaur v. BIA, 413 F.3d 232, 233 (2d

22   Cir. 2005) (per curiam).

23


                                   2
 1   I.   Motion to Rescind

 2        An in absentia order of deportation may be rescinded

 3   outside the 180-day time limitation “if the alien

 4   demonstrates that he or she did not receive notice” of his

 5   removal hearing.   8 C.F.R. § 1003.23(b)(4)(iii)(A)(2).

 6   Where, as here, the notice of hearing “‘is sent by certified

 7   mail through the United States Postal Service and there is

 8   proof of attempted delivery and notification of certified

 9   mail, a strong presumption of effective service arises.’”

10   See Alrefae, 471 F.3d at 357 (quoting Matter of Grijalva, 21

11   I. & N. Dec. 27, 37 (B.I.A. 1995)). The presumption of

12   effective service may be rebutted, if, in addition to

13   evidence of non-delivery, there is “‘substantial and

14   probative evidence . . . demonstrating . . . that

15   nondelivery was not due to the respondent’s failure to

16   provide an address where he could receive mail.’” Fuentes-

17   Argueta v. INS, 101 F.3d 867, 871 (2d Cir. 1996) (quoting

18   Grijalva, 21 I. & N. Dec. at 37) (internal alterations

19   omitted).

20        Chen points to no evidence, and there is none in the

21   record, that would compel the conclusion that the

22   non-delivery of the notice of hearing was not due to his own


                                   3
 1   failure to provide a correct address. Accordingly, the BIA

 2   did not abuse its discretion in concluding that Chen failed

 3   to rebut the presumption of adequate notice.

 4   II. Motion to Reopen

 5       In denying Chen’s motion to reopen, the BIA did not err

 6   in applying a 90-day time limit, and, because the motion was

 7   untimely, mandating a showing of changed country conditions.

 8   See Maghradze, 462 F.3d at 156 (holding that the BIA did not

 9   err in denying a motion to reopen, accompanied by a motion

10   to rescind, based on a lack of evidence of changed country

11   conditions).   None of the evidence proffered by Chen would

12   require a finding of changed country conditions, either with

13   respect to his claims concerning sterilization or with

14   respect to his claims concerning the Chinese government’s

15   treatment of underground churches. Accordingly, the BIA did

16   not abuse its discretion in denying the motion to reopen.

17       For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

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

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

22   oral argument in this petition is DENIED in accordance with


                                   4
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5




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