         10-1082-ag
         Rodriguez v. Holder
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A072 582 811
                                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 March, two thousand eleven.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                ROBERT D. SACK,
 9                RICHARD C. WESLEY,
10                     Circuit Judges.
11       _____________________________________
12
13       MARIBEL RODRIGUEZ,
14                Petitioner,
15
16                             v.                               10-1082-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                 Edward J. Cuccia, New York, New
24                                       York.
25
26       FOR RESPONDENT:                 Tony West, Assistant Attorney
27                                       General; Leslie McKay, Assistant
28                                       Director; Margot L. Nadel, Trial
29                                       Attorney, Office of Immigration
30                                       Litigation, Civil Division, United
31                                       States Department of Justice,
32                                       Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

 4   review is DENIED.

 5       Maribel Rodriguez, a native and citizen of the

 6   Dominican Republic, seeks review of a February 25, 2010,

 7   order of the BIA affirming the January 20, 2009, order of

 8   Immigration Judge (“IJ”) Philip J. Montante, Jr., denying

 9   her motion to reopen. In re Maribel Rodriguez, No. A072 582

10   811 (B.I.A. Feb. 25, 2010), aff’g No. 072 582 811 (Immig.

11   Ct. Buffalo Jan. 20, 2009).    We assume the parties’

12   familiarity with the underlying facts and procedural history

13   of this case.

14       We review the denial of a motion to rescind an in

15   absentia order under the same abuse of discretion standard

16   applicable to motions to reopen.     See Alrefae v. Chertoff,

17   471 F.3d 353, 357 (2d Cir. 2006).    Our jurisdiction to

18   review orders of removal entered in absentia is generally

19   limited to “(i) the validity of the notice provided to the

20   alien, (ii) the reasons for the alien’s not attending the

21   proceeding, and (iii) whether or not the alien is

22   removable.”     Abu Hasirah v. DHS, 478 F.3d at 474, 478 (2d


                                     2
 1   Cir. 2007) (citing 8 U.S.C. § 1229a(b)(5)(D)).    When, as in

 2   this case, the BIA issues an opinion that fully adopts the

 3   IJ’s decision, we review the IJ’s decision.     See Mei Chai Ye

 4   v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir. 2007).

 5       Rodriguez’s arguments that her notice of hearing was

 6   “facially defective” because it was sent to a non-existent

 7   address, “Revelside Drive” instead of “Riverside Drive,” and

 8   because it contained a signature that was not hers are

 9   unavailing.   The record indicates that the notice was sent

10   to the address as Rodriguez had written it, “Revelside

11   Drive,” and the return receipt indicated that the notice had

12   been delivered and signed for.    Moreover, Rodriguez bore the

13   burden of providing the agency with her correct address. See

14   8 U.S.C. §§ 1229(a)(1)(f), 1229a(b)(5)(B).    When a hearing

15   notice is sent via certified mail, we presume    “not only

16   that delivery to the alien’s mailing address was effective,

17   but also that the alien personally received the notice.”

18   Alrefae, 471 F.3d at 359; see also Fuentes-Argueta v. INS,

19   101 F.3d 867, 871 (2d Cir. 1996) (“There is no requirement

20   that the certified mail return receipt be signed by the

21   alien or a responsible person at his address to attempt

22   service.   So long as there is proof of attempted delivery,


                                   3
 1   there is a presumption of adequate notice.”).   A petitioner

 2   may overcome this presumption “by the affirmative defense of

 3   nondelivery or improper delivery by the Postal Service,” but

 4   only if she presents “substantial and probative evidence

 5   such as documentary evidence from the Postal Service, third

 6   party affidavits, or other similar evidence demonstrating

 7   that there was improper delivery.”   Matter of Grijalva, 21

 8   I. & N. Dec. 27, 37 (BIA 1995).   The IJ did not abuse its

 9   discretion in finding that Rodriguez failed to overcome this

10   presumption because the signed certified mail receipt

11   indicated that Rodriguez’s hearing notice had been delivered

12   to the address she provided to the agency.   See Fuentes-

13   Argueta, 101 F.3d at 871; Grijalva, 21 I. & N. Dec. at 37.

14   The IJ also reasonably concluded that Rodriguez failed to

15   exercise due diligence in pursuing her case because she

16   failed to offer any explanation for the sixteen-year delay

17   in attempting to obtain information regarding her




                                  4
1   proceedings.   See Iavorski v. INS, 232 F.3d 124, 135 (2d

2   Cir. 2000).

3       For the foregoing reasons, the petition for review is

4   DENIED.

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7
8




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