Kosasih v. Holder ( 2010 )


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  •          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
    8
    9
    10
    11
    4
    

Document Info

Docket Number: 09-3543-ag

Judges: Cabranes, Hall, Lynch

Filed Date: 3/3/2010

Precedential Status: Non-Precedential

Modified Date: 3/2/2024