         13-2611
         Jin v. Holder
                                                                                       BIA
                                                                               A089 250 138
                              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 23rd day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DENNY CHIN,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       HU JIN,
14                       Petitioner,
15
16                       v.                                     13-2611
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24
25       FOR PETITIONER:                Stuart Altman, New York, New York.
26
27
28
29
 1   FOR RESPONDENT:           Stuart F. Delery, Assistant Attorney
 2                             General; Eric W. Marsteller, Senior
 3                             Litigation Counsel; Claire L.
 4                             Workman, Senior Litigation Counsel,
 5                             Office of Immigration Litigation,
 6                             Civil Division, United States
 7                             Department of Justice, Washington
 8                             D.C.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

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

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

13   is DENIED.

14       Petitioner Hu Jin, a native and citizen of China, seeks

15   review of a June 27, 2013 decision of the BIA denying his

16   motion to reopen.     In re Hu Jin, No. A089 250 138 (B.I.A.

17   June 27, 2013).     We assume the parties’ familiarity with the

18   underlying facts and procedural history in this case.

19       “We review the denial of motions to reopen immigration

20   proceedings for abuse of discretion, mindful that motions to

21   reopen ‘are disfavored.’”     Ali v. Gonzales, 448 F.3d 515,

22   517 (2d Cir. 2006) (quoting INS v. Doherty, 502 U.S. 314,

23   322-23 (1992)).     Aliens seeking to reopen proceedings may

24   move to reopen no later than 90 days after the final

25   administrative decision was rendered.     8 U.S.C.

26   § 1229a(c)(7)(C)(I); 8 C.F.R. § 1003.2(c)(2).        That time

27   limitation may be tolled if the alien can demonstrate

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 1   ineffective assistance of counsel.       Rashid v. Mukasey, 533

 2   F.3d 127, 130 (2d Cir. 2008).       To benefit from equitable

 3   tolling, the alien must comply with certain procedural

 4   requirements; show prejudice as a result of the ineffective

 5   assistance; and have exercised due diligence in pursuing the

 6   claim. Id. at 130-31.

 7       Jin’s motion to reopen was untimely: he filed it more

 8   than a year after the agency entered an order of removal

 9   against him.   8 U.S.C. § 1229a(c)(7)(C)(I); 8 C.F.R.

10   § 1003.2(c)(2).

11       In the main, Jin claimed prejudice from his attorney’s

12   failure to notify him that the BIA had dismissed his appeal.

13   That failure, argues Jin, caused him to miss the deadline

14   for filing a petition for review of his removal order.

15       We have previously approved of, and applied, the so-

16   called “presumption of receipt,” under which there is “some

17   presumption of receipt when notice is sent by regular mail.”

18   Lopes v. Gonzales, 468 F.3d 81 (2d Cir. 2006) (per curiam)

19   (approving of presumption); see also Ba v. Holder, 561 F.3d

20   604 (6th Cir. 2009).    The alien may, however, rebut that

21   presumption with an affidavit and other evidence.       For

22   example, in Lopes, the petitioner’s affidavit asserted that


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 1   he “did not receive the notice” of his hearing.       468 F.3d at

 2   83.   Additionally, Lopes had no motive to miss the hearing:

 3   he had initiated the proceeding to receive a benefit, had

 4   notified immigration authorities of a prior change in

 5   address, and had complied with other disclosure obligations.

 6   Id. at 86.   In Alrefae v. Chertoff, the petitioner

 7   “submitted a notarized letter attesting that he had not

 8   received notice because his friend . . . lost his mail, and

 9   he offered a police report as support for his claim that he

10   began receiving his mail at [his friend’s] home after his

11   own home was burglarized.”     471 F.3d 353, 360 (2d Cir.

12   2006).   Like Lopes, Alrefae also evinced a “general

13   willingness to comply with U.S. immigration laws” and a

14   desire to have his case heard.      Id.   By contrast, in

15   Fuentes-Argueta v. INS, the presumption of receipt was not

16   rebutted because the petitioner’s only “evidence of

17   nondelivery” was “her own affidavit, which, in fact, nowhere

18   state[d] that the postal service had not attempted to

19   deliver the notice of the . . . hearing or had otherwise

20   improperly disposed of the notice.”       101 F.3d 867, 872 (2d

21   Cir. 1996) (per curiam).     Instead, she merely averred that

22   she “was not aware that [she] had a hearing.”       Id.


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 1       Here, the BIA found that Jin failed to rebut the

 2   presumption that he received a courtesy copy of the BIA’s

 3   decision dismissing his appeal.   That was no abuse of

 4   discretion.   Jin’s affidavit in support of his motion to

 5   reopen stated: “My former attorney did not inform me that my

 6   BIA Appeal had been decided on March 7, 2012.    It was only

 7   upon going to another attorneys office that I was informed

 8   that my BIA appeal had been denied.”    Jin did not, however,

 9   deny having received the courtesy copy that was addressed to

10   him (a copy of which was part of the administrative record).

11   As the BIA observed, Jin’s affidavit made no reference at

12   all to the courtesy copy.   Nor did Jin provide any “other

13   evidence that it was not received at his address of record,”

14   including, for example, that it was “returned as

15   undeliverable.”   Because Jin failed to rebut the

16   presumption, his attorney’s alleged failure to notify him

17   about that decision cannot have caused prejudice.

18       The agency also had the discretion to find that Jin

19   otherwise failed to show prejudice.    Jin claimed that his

20   attorney “mixed up dates” in his asylum application.     Jin

21   does not identify any particular dates.    Ambiguity aside,

22   the IJ’s adverse credibility determination was based not on



                                   5
 1   the dates in Jin’s written application, but rather on the

 2   inconsistencies among Jin’s testimony, his wife’s testimony,

 3   and their documentary evidence.    So, even if Jin’s attorney

 4   did mix up dates on his asylum application, those errors

 5   caused Jin no harm.

 6       Jin’s second claim of prejudice was that his attorney

 7   failed to submit his marriage certificate at the merits

 8   hearing, which, according to Jin, caused the IJ to “question

 9   [t]he validity of his marriage.”    But the marriage

10   certificate was submitted.   Indeed, inconsistencies between

11   it and Jin’s testimony partly grounded the IJ’s adverse

12   credibility determination.

13       Finally, we lack jurisdiction to review the BIA’s

14   decision not to reopen sua sponte under 8 C.F.R.

15   § 1003.2(a), because that decision is “entirely

16   discretionary.”   Ali, 448 F.3d at 518.

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


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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
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