Shao Ling Zhang v. Gonzales, (2nd Cir. 2007)

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06-2809

Shao Ling Zhang v. Gonzales

Jankun, I.J.

No. A95-525-300

B.I.A.

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 0.23 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)." UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN

ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE

AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/), THE PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE

A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO

COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE 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, at 500 Pearl Street, in the City of New York,

on the 11th day of May, two thousand and seven.

Present:

HON. RALPH K. WINTER,

HON. SONIA SOTOMAYOR,

HON . PETER W. HALL,

Circuit Judges.

Shao Ling Zhang,

Petitioner,

v. No. 06-2809-ag

Alberto R. Gonzales, Attorney General,

Respondent.

For Petitioner: FRANK R. LIU, ESQ., New York, New York.

For Respondent: KATHARINE J. SMITH, Assistant United States

At to rney (Alice H. Martin, United States Attorney,

Northern District of Alabama, on the brief),

Birmingham, Alabama.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the the petition for review of the decision of the Board of Immigration Appeals ("BIA") is DENIED.

Petitioner Shao Ling Zhang, a citizen of the People's Republic of China, appeals from the May 19, 2006 decision of the BIA, which affirmed without opinion Immigration Judge ("IJ") William F. Jankun's denial of petitioner's motion to reopen removal proceedings for failure to receive notice pursuant to 8U.S.C. § 1229a(b)(5)(C)(ii). In re Shao Ling Zhang, No. A95 525 300 (B.I.A. May 19, 2006), aff'g No. A95 525 300 (Immig. Ct. New York, NY Nov. 1, 2005). We assume the parties' familiarity with the underlying facts of the case, its procedural history and the arguments on appeal.

When the BIA summarily affirms the IJ's decision, we review directly the IJ's decision.

Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). We review the denial of petitioner's motion to rescind an order of removal in absentia for abuse of discretion, "which may be found if the decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements." Id. (internal quotation marks omitted). The IJ properly held that petitioner had failed to overcome the presumption of receipt of her Notice of Appearance.

If "the record establishes that the notice was accurately addressed and mailed in accordance with normal office procedures," the BIA applies a rebuttable presumption that petitioner received the notice. Lopes v. Gonzales, 468 F.3d 81, 85 (2d Cir. 2006). The BIA then considers "all relevant evidence" to determine whether petitioner has rebutted the presumption. Id. at 86. Respondent mailed a Notice of Appearance to the address at which petitioner resides and at which petitioner subsequently received the notice of removal in absentia, as evidenced by petitioner's filing of the motion to reopen. Though petitioner alleges that vandalism to her mailbox prevented her receipt of the Notice of Appearance, she failed to present any evidence of a report to any authority regarding the vandalism. In light of petitioner's receipt, at the same address, of the notice of the order of removal in absentia, and of petitioner's failure to appear at two separate hearings, the IJ did not abuse his discretion when he concluded that petitioner's uncorroborated claim of mailbox vandalism failed to rebut the presumption of receipt of the Notice of Appearance.

For the foregoing reasons, we DENY the petition.

FOR THE COURT: Thomas Asreen, Acting Clerk By:

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