Rodriguez v. Holder , 413 F. App'x 396 ( 2011 )

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
5