Zheng v. Holder , 352 F. App'x 526 ( 2009 )

09-1235-ag
Zheng v. Holder
BIA
Ferris, IJ
A073 488 657
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
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ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 24 th day of November, two thousand nine.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
XIU ZHEN ZHENG,
Petitioner,
v. 09-1235-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, BUREAU OF CITIZENSHIP
AND IMMIGRATION SERVICES,
Respondents.
_______________________________________
FOR PETITIONER: John Chang, New York, N.Y.
FOR RESPONDENTS: Tony West, Assistant Attorney
General, Civil Division, Francis W.
Fraser, Senior Litigation Counsel,
Susan Houser, Senior Litigation
Counsel, Office of Immigration
Litigation, U.S. Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Xiu Zhen Zheng, a native and citizen of China, seeks
review of the March 16, 2009 order of the BIA affirming the
January 2, 2008 decision of Immigration Judge (“IJ”) Noel A.
Ferris denying her motion to reopen her exclusion
proceedings. Matter of Xiu Zhen Zheng, No. A073 488 657
(B.I.A. Mar. 16, 2009), aff’g No. A073 488 657 (Immig. Ct.
N.Y. City Jan. 2, 2008). We assume the parties’ familiarity
with the underlying facts and procedural history of the
case.
When the BIA adopts the decision of the IJ and
supplements the IJ’s decision, we review the decision of the
IJ as supplemented by the BIA. See Yan Chen v. Gonzales,
417 F.3d 268, 271 (2d Cir. 2005). We review the BIA’s
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denial of a motion to reopen for abuse of discretion. See
Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).
As an initial matter, motions to reopen in absentia
orders are governed by different rules depending on whether
the movant seeks to rescind the order or present new
evidence. See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir.
2006); In re M-S-, 22 I. & N. Dec. 349, 353-55 (BIA 1998)
(en banc). Accordingly, where, as here, an alien files a
motion that seeks both rescission of an in absentia
deportation order, as well as reopening of exclusion
proceedings based on new evidence, the Court treats the
motion as comprising two distinct motions to rescind and to
reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.
2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152 n.1
(2d Cir. 2006). We address each motion in turn.
I. Motion to Rescind
When an IJ orders an alien excluded in absentia, there
is no time limit on filing a motion to reopen if the alien
demonstrates “reasonable cause” for her failure to appear.
See 8 C.F.R. § 1003.23(b)(4)(iii)(B) (providing that, “[a]
motion to reopen exclusion hearings on the basis that the
[IJ] improperly entered an order of exclusion in absentia
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must be supported by evidence that the alien had reasonable
cause for [her] failure to appear”); Matter of N-B-, 22 I &
N Dec. 590 (BIA 1999); Matter of Ruiz, 20 I & N Dec. 91, 92-
93 (BIA 1989).
The BIA did not err in finding that Zheng failed to
demonstrate “reasonable cause” for her failure to appear at
her April 1995 merits hearing. See 8 C.F.R.
§ 1003.23(b)(4)(iii)(B). As the BIA noted, Zheng’s
explanation was that she was advised not to appear by her
attorney because she was likely to lose her case and be
detained, if not deported. The BIA found this explanation
“insufficient to excuse her absence.” In her brief, Zheng
argues that the advice she relied on in 1995 is “on its face
ineffective assistance of counsel.” Though we recognize
that aliens may not lightly disregard the advice of counsel,
see Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir. 2008)
(noting that aliens are often “unfamiliar with our language
and culture” and therefore holding that “misadvice [from an
attorney] may constitute ineffective assistance of
counsel”), we are unable to find an abuse of discretion in
the agency’s refusal to accept this explanation as
“reasonable cause” for a failure to appear, particularly
4
because Zheng was informed of the consequences. Indeed,
crediting Zheng’s explanation would have the perverse effect
of encouraging aliens to avoid agency proceedings at which
they are likely to lose, only to return when their prospects
are better. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74
(2d Cir. 2006).
II. Motion to Reopen
The BIA also did not abuse its discretion in denying
Zheng’s motion to reopen. The regulations provide that “a
party may file only one motion to reopen deportation or
exclusion proceedings . . . and that motion must be filed no
later than 90 days after the date on which the final
administrative decision was rendered in the proceeding
sought to be reopened, or on or before September 30, 1996,
whichever is later.” 8 C.F.R. § 1003.2(c)(2).
Indisputably, Zheng’s October 2007 motion was untimely
because she filed it more than twelve years after the IJ’s
April 1995 in absentia order. However, the time limitation
does not apply when the alien can establish materially
“changed circumstances arising in the country of
nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). When the BIA
considers relevant evidence of country conditions in
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evaluating a motion to reopen, we review the BIA’s factual
findings under the substantial evidence standard. See Jian
Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
Despite Zheng’s arguments, we are not compelled to
conclude that the agency ignored the evidence she submitted.
See Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 336
n.17 (2d Cir. 2006) (“[W]e presume that [the agency] has
taken into account all of the evidence before [it] unless
the record compellingly suggests otherwise.”). Nor do we
find that the BIA erred in declining to credit that
evidence, which included a “Notice” allegedly from a county
family planning office and an unauthenticated letter from a
family member. See Jian Hui Shao, 546 F.3d at 165(concluding that “unattributed reports” did not, by
themselves, persuasively demonstrate a reasonable
possibility that petitioner would face future persecution);
Qin Wen Zheng v. Gonzales, 500 F.3d 143, 149 (2d Cir. 2007)
(addressing a similar “Village Notice,” and holding that
“the BIA did not abuse its discretion in declining to
consider a document-questionable on its face, supported only
by a spouse’s affidavit, and not authenticated pursuant to
regulation-that attempts to establish the sweeping
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proposition that subsequent to the date of the petitioner’s
entry into the country and application for asylum, country
conditions had undergone a material adverse change
sufficient to affect his petition for asylum”).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:___________________________
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