Shu Mei Chen v. Holder

SUMMARY ORDER Petitioner Shu Mei Chen, a native and citizen of the People’s Republic of China, seeks review of the April 23, 2009, order of the BIA denying her motion to reopen. In re Shu Mei Chen, No. A 070 897 027 (B.I.A. Apr. 23, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case. The BIA did not abuse its discretion in denying Chen’s untimely motion to reopen proceedings that resulted in an order of deportation entered when she failed to appear at her March 1998 merits hearing. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). 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, when, as here, an alien files a motion that seeks both rescission of an in absentia deportation order, as well as reopening of deportation proceedings based on new evidence, we treat the motion as comprising 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 deported in absentia, there is no time limit on filing a motion to reopen if the alien can establish that he had reasonable cause for his failure to appear. Matter of N-B-, 22 I. & N. Dec. 590 (BIA 1999) (en banc); Matter of Ruiz, 20 I. & N. Dec. 91, 92-93 (BIA 1989). “A motion to reopen exclusion hearings on the basis that the [IJ] improperly entered an order of exclusion in absentia must be supported by evidence that the alien had reasonable cause for his failure to appear.” See 8 C.F.R. § 1003.23(b)(4)(iii)(B). Here, however, the BIA correctly found that Chen failed to demonstrate “reasonable cause.” Chen argues that she failed to appear because the travel agency she was working with did not inform her of the hearing date. However, the BIA found that she was personally served with notice of the hearing. Moreover, the BIA rejected Chen’s argument on the additional ground that, in blaming her failure to appear on ineffective assistance from her advisors, she failed to comply with the Lozada require *235 ments. See Chupina v. Holder, 570 F.3d 99, 101-02 (2d Cir.2009) (discussing the requirements set forth in Matter of Lozada, 19 I. & N Dec. 637, 639 (BIA 1988)). Chen fails to address either of these dis-positive findings, which are well supported in the record. This failure is fatal to her challenge to the BIA’s denial of her motion to rescind. See 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(h); Matter of Lozada, 19 I. & N. Dec. at 639. II. Motion to Reopen Nor did the BIA abuse its discretion in denying Chen’s motion construed as a 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). Chen’s March 2009 motion was indisputably untimely because she filed it more than a decade after the IJ’s March 1998 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). Here, although Chen asserted in her motion that she was eligible for asylum, the BIA correctly denied her motion because she made no argument that country conditions in China had changed. Before this Court, Chen waives any challenge to the BIA’s denial of her motion for this reason. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1, 546 n. 7 (2d Cir. 2005). Accordingly, we have no reason to disturb the BIA’s April 2009 order. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, 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).