Kosasih v. Holder , 368 F. App'x 172 ( 2010 )

09-3543-ag
Kosasih v. Holder
BIA
A097 849 104
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 3 rd day of March, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 PETER W. HALL,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 THERESIA KOSASIH,
14 Petitioner,
15
16 v. 09-3543-ag
17 NAC
18 ERIC H. HOLDER, JR.,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Matthew J. Archambeault,
24 Philadelphia, Pennsylvania
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Linda S. Wernery, Assistant
28 Director; Kerry A. Monaco, 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 Theresia Kosasih, a native and citizen of Indonesia,
6 seeks review of a July 21, 2009, order of the BIA denying
7 her motion to reissue. In re Theresia Kosasih, No. A097 849
8 104 (B.I.A. July 21, 2009). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 of this case.
11 We review the agency’s denial of a motion to reissue
12 for abuse of discretion. See Ping Chen v. U.S. Att’y Gen.,
13 502 F.3d 73, 75 (2d Cir. 2007). As the Government argues,
14 this case is controlled by Ping Chen. In that case, the
15 applicant asked the BIA to reissue its decision because she
16 allegedly did not receive it or even learn of it for several
17 months after its issuance. Id. at 74. The BIA denied the
18 motion on the ground that the decision was correctly mailed
19 to the applicant’s address of record. Id. at 75. We noted,
20 inter alia, that the record included an order and a cover
21 letter addressed to the petitioner’s correct address, and
22 that although the petitioner and a relative filed affidavits
2
1 stating that they had not received the order, the petitioner
2 did not point to any irregularity in the BIA’s records
3 suggesting that service was not actually accomplished. Id.4 at 77. Upholding the BIA’s decision, we held that, “once
5 the BIA has performed its duty of serving the order, the
6 time for appeal and motions to reopen begins to run, even if
7 the order miscarries in the mail or the alien does not
8 receive it for some other reason that is not the BIA’s
9 fault.” Id. at 76-77.
10 Here, the record similarly includes a cover letter
11 addressed to the petitioner and her attorney at their
12 addresses of record on the day the decision was issued.
13 Although Kosasih, her attorney, and others filed affidavits
14 stating they did not receive the decision, Kosasih admits
15 that “there are no irregularities as to the addresses [on
16 the BIA cover sheets] of either the Petitioner or her
17 counsel.” On these facts, the BIA’s denial of Kosasih’s
18 motion to reissue on the ground that the BIA had satisfied
19 its obligation to notify the petitioner of the disposition
20 of her case was not an abuse of discretion. See id. at 77.
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
3
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot.
4
5
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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