Zhen Shui Weng v. Holder , 365 F. App'x 305 ( 2010 )

08-3145-ag
Weng v. Holder
BIA
A73 572 973
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 16 th day of February, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROSEMARY S. POOLER,
9 ROBERT A. KATZMANN,
10 Circuit Judges.
11 _________________________________________
12
13 ZHEN SHUI WENG,
14 Petitioner,
15
16 v. 08-3145-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL, *
20 Respondent.
21 _________________________________________
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*
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 respondent in this case.
1 FOR PETITIONER: Robert J. Adinolfi, Louis & Adinolfi,
2 LLC, New York, N.Y.
3
4 FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney
5 General; Linda S. Wernery, Assistant
6 Director; James E. Grimes, Senior
7 Litigation Counsel, Office of
8 Immigration Litigation, United States
9 Department of Justice, Washington,
10 D.C.
1112 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED, that the petition for review
15 is DENIED.
16 Petitioner Zhen Shui Weng, a native and citizen of the
17 People’s Republic of China, seeks review of the May 29, 2008
18 order of the BIA denying his motion to reissue. In re Zhen
19 Shui Weng, No. A73 572 973 (B.I.A. May 29, 2008). We assume
20 the parties’ familiarity with the underlying facts and
21 procedural history of the case.
22 We treat motions to reissue as motions to reopen,
23 reviewing the agency’s denial of a motion to reissue for
24 abuse of discretion, and the agency’s findings of fact under
25 the substantial evidence standard. See Ping Chen v. U.S.
26 Att’y Gen., 502 F.3d 73, 75 (2d Cir. 2007). In this case,
27 the BIA did not abuse its discretion in denying Weng’s
28 motion to reissue its July 2007 decision.
2
1 The agency’s regulations require the BIA to serve
2 decisions by “physically presenting or mailing [the]
3 document to the appropriate party.” 8 C.F.R. § 1003.13.
4 “Once the BIA has performed its duty of serving the order,
5 the time for appeal and motions to reopen begins to run,
6 even if the order miscarries in the mail or the alien does
7 not receive it for some other reason that is not the BIA’s
8 fault.” Ping Chen, 502 F.3d at 76-77. Thus, contrary to a
9 case in which the alien asserts that he or she did not
10 receive notice of a hearing, see Lopes v. Gonzales, 468 F.3d
11 81, 85 (2d Cir. 2006), it is the agency’s service of the
12 order, not the alien’s receipt of the order, that is
13 dispositive in this case, see Ping Chen, 502 F.3d at 77.
14 Evidence of non-receipt is not irrelevant; however, it
15 serves only as circumstantial evidence as to the question of
16 whether the order was actually served. Id. Moreover, “the
17 BIA may reasonably accord less weight to an affidavit of
18 non-receipt than to its own records establishing that the
19 order was in fact mailed.” Ping Chen, 502 F.3d at 77.
20 As the BIA properly mailed its July 2007 decision to
21 Weng’s attorney of record, the BIA did not abuse in
22 according Weng’s attorney’s affidavit of non-receipt less
3
1 weight than its own records. See id. Accordingly, the BIA
2 did not abuse its discretion in denying Weng’s motion to
3 reissue. See id.4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
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