08-4494-ag
Zheng v. Holder
                                                                                BIA
                                                                         Bukszpan, IJ
                                                                        A070 902 071
                       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.

     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 8 th day of June, two thousand ten.

PRESENT:
         REENA RAGGI,
         RICHARD C. WESLEY,
         PETER W. HALL,
              Circuit Judges.
_______________________________________

SHENGJIN ZHENG,
         Petitioner,

                  v.                                    08-4494-ag
                                                        NAC
ERIC H. HOLDER, JR., 1 U.S. ATTORNEY
GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                 Scott E. Bratton, Margaret Wong &
                                Associates Co., LPA, Cleveland,
                                Ohio.


             1
          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.
FOR RESPONDENT:          Michael F. Hertz, Acting Assistant
                         Attorney General, Civil Division,
                         Linda S. Wernery, Assistant
                         Director, Susan Bennett Green, Trial
                         Attorney, 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.

    Shengjin Zheng, a native and citizen of China, seeks

review of the August 13, 2008 order of the BIA (1) affirming

the May 16, 2007 decision of Immigration Judge (“IJ”) Joanna

M. Bukszpan denying his motion to reopen removal

proceedings, and (2) denying his motion to remand.     In re

Shengjin Zheng, No. A070 902 071 (B.I.A. Aug. 13, 2008),

aff’g No. A070 902 071 (Immig. Ct. N.Y. City May 16, 2007).

We assume the parties’ familiarity with the underlying facts

and procedural history of the case.

    Under the circumstances of this case, 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 denial of a motion to reopen or remand for abuse

of discretion.    See Sanusi v. Gonzales, 445 F.3d 193, 200-01



                               2
(2d Cir. 2006); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

2005).

 I.   Motion To Reopen

      The BIA dismissed Zheng’s appeal, affirming both the

IJ’s determination that Zheng’s motion was untimely and her

discretionary denial of his motion to reopen.        Because the

motion to reopen Zheng’s in absentia order was based on new

evidence, we apply the general standards governing motions

to reopen.        See 8 C.F.R. §§ 1003.2(c), 1003.23(b); see

generally Grigous v. Gonzales, 460 F.3d 156, 160 (1st Cir.

2006). 2       Under those standards, we agree that Zheng’s motion

to reopen, filed nearly ten years after entry of the in

absentia order of removal, was untimely.        See 8 C.F.R.

§ 1003.2(c)(2) (requiring that motion to reopen be filed

within 90 days of date of final administrative decision).

      There are no time or number limitations for filing a

           2
        The BIA erred in concluding that Zheng’s motion to
  reopen was untimely under the deadline requirements set
  forth in 8 U.S.C. § 1229a(b)(5)(C). That statute applies
  to an alien’s motion to rescind an in absentia order.
  Nevertheless, remand based on this error would be futile
  because Zheng’s motion was untimely pursuant to the
  general motion to reopen deadlines set forth in 8 C.F.R.
  §§ 1003.2(c) and 1003.23(b). See Xiao Ji Chen v. U.S.
  Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006)
  (finding that remand is futile only when reviewing court
  can “confidently predict” that IJ would reach same
  decision absent relevant errors).

                                   3
motion to reopen where the motion is “based on changed

circumstances arising in the country of nationality or in

the country to which deportation has been ordered, if such

evidence is material and was not available and could not

have been discovered or presented at the previous hearing.”

8 C.F.R. § 1003.2(c)(3)(ii).   The BIA, however, properly

concluded that Zheng failed to demonstrate that his motion

satisfied the requirements of this exception.   As in Matter

of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), and Matter of S-

Y-G-, 24 I. & N. Dec. 247 (BIA 2007), the BIA considered the

2006 U.S. State Department Country Conditions Report and

various administrative decisions issued to Chinese couples

who violated the family planning policy but determined that

such evidence was insufficient to establish material changed

country conditions or a reasonable possibility of

persecution, see Jian Hui Shao v. Mukasey, 546 F.3d 138, 169

(2d Cir. 2008).   On this record, we cannot conclude that the

BIA abused its discretion in affirming the IJ’s denial of

Zheng’s untimely motion to reopen. 3



       3
         We need not consider Zheng’s argument that the BIA
   erred in failing to consider his fear that he will face a
   significant fine if he returns to China, as the argument
   is unexhausted. See Lin Zhong v. U.S. Dep’t of Justice,
   480 F.3d 104, 122 (2d Cir. 2007).

                               4
II.   Motion to Remand

       Under 8 U.S.C. § 1229a, “[a]ny alien who, after

written notice . . . has been provided to the alien or the

alien’s counsel of record, does not attend a proceeding

under this section, shall be ordered removed in absentia if

the [government] establishes by clear, unequivocal, and

convincing evidence that the written notice was so provided

and that the alien is removable.”   8 U.S.C.

§ 1229a(b)(5)(A).   Generally, “[s]uch an order may be

rescinded only . . . upon a motion to reopen filed within

180 days after the date of the order of removal if the alien

demonstrates that the failure to appear was because of

exceptional circumstances.”   8 U.S.C. § 1229a(b)(5)(C)(i).

      In denying Zheng’s motion to remand, the BIA noted that

(1) the motion was untimely, as it was filed more than 180

days after the IJ’s in absentia order; and (2) Zheng failed

to explain why he did not appear for his October 1997 merits

hearing.   This reasoning manifests no abuse of discretion.

See 8 U.S.C. § 1229a(b)(5)(C)(i); see also Alrefae v.

Chertoff, 471 F.3d 353, 358-59 (2d Cir. 2006).

Nevertheless, Zheng argues that denial of his motion to

remand was improper under Matter of G-Y-R-, 23 I. & N. Dec.



                               5
181 (BIA 2001), because he did not receive proper notice of

his merits hearing.   See 8 C.F.R. § 1003.23(b)(4)(ii)

(permitting in absentia order of removal to be rescinded

upon motion to reopen at any time, so long as alien

demonstrates he did not receive proper notice).   We are not

persuaded.

    In April 1997, the agency sent a notice to appear

(“NTA”) to Zheng via certified mail using an address that he

provided on his asylum application approximately one month

earlier, and there is no evidence in the record that Zheng

did not receive that NTA.   See Alrefae, 471 F.3d at 359

(noting that because sending NTA by certified mail and

providing proof of attempted delivery create presumption of

effective service, alien seeking relief from in absentia

removal order on ground that he did not receive notice must

“present[] substantial and probative evidence such as

documentary evidence from the Postal Service, third party

affidavits, or other similar evidence demonstrating that

there was improper delivery” (internal quotation marks

omitted)).   Zheng’s hearing date was thereafter twice

changed, prompting two additional NTAs to be mailed to the

same address.   Zheng asserts that he never received these

later NTAs and that he had moved from the address provided.

                              6
The April 1997 NTA, however, advised Zheng of his obligation

to “notify the Immigration Court immediately . . . whenever

[he] change[d] [his] address” and warned that the failure to

do so would relieve the government of its duty to provide

him with written notice.   April 15, 1997 Notice to Appear at

2.   In light of these facts and Zheng’s failure to adduce

any evidence indicating that he notified the government of

his purported change of address, we identify no abuse of

discretion in the BIA’s rejection of Zheng’s notice defense

to his failure to appear at his merits hearing.

     Zheng’s assertion that the BIA erred in denying his

motion to remand by finding him ineligible for adjustment of

status is similarly unavailing.   The BIA did not reach the

issue of Zheng’s eligibility for adjustment of status

because Zheng offered no explanation for his failure to

present his application for adjustment to the IJ.   In these

circumstances, the BIA’s denial of the motion for remand was

not an abuse of discretion.   See 8 C.F.R. § 1003.2(c)(1)

(noting that motion to reopen shall not be granted unless

evidence sought to be offered was unavailable and could not

have been presented at former hearing).




                              7
III.       Conclusion

       For the foregoing reasons, the petition for review is

DENIED.    As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot.    Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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