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Meng Hua Wan v. Holder

United States Court of Appeals, First Circuit

January 20, 2015

MENG HUA WAN, Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, Respondent

Page 53

Wei Jia and Law Office of Wei Jia on brief for petitioner.

Stuart F. Delery, Assistant Attorney General, Civil Division, Kelly Walls, Senior Litigation Counsel, and Anna Nelson, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

Before Torruella, Selya and Howard, Circuit Judges.

Page 54

PETITIONS FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

SELYA, Circuit Judge.

Petitioner Meng Hua Wan, a Chinese national, seeks judicial review of an order of the Board of Immigration Appeals (BIA) affirming a decision of an immigration judge (IJ) refusing to reopen removal proceedings after the petitioner was ordered removed in absentia. Concluding, as we do, that the agency did not abuse its considerable discretion, we deny relief.

The material facts are easily summarized. The petitioner entered the United States in June of 1997 on a visitor's visa that expired six months later. He overstayed and accepted employment without proper authorization. Approximately three years later, federal authorities instituted removal proceedings. See 8 U.S.C. § 1227(a)(1)(B), (a)(1)(C)(i) (formerly § 237(a)(1)(B), (a)(1)(C)(i)).

At that time, the petitioner gave the Immigration and Naturalization Service (INS) a mailing address -- " 80 Farrington St #3, Quincy, MA 02117" -- that contained an inaccurate zip code. The petitioner was served personally with, and signed for, a notice to appear (NTA) that left open the date of appearance. The NTA reflected the incorrect zip code that the petitioner had provided but warned the petitioner that he was required to report any change in his current mailing address to the INS; that notices of hearings would be mailed to that address; and that failure to attend a hearing could result in an in absentia order of removal. Despite these warnings, the petitioner never advised the INS about the inaccurate zip code.

In due course, the immigration court scheduled a removal hearing for March 20, 2001, and sent notice to the petitioner at his mailing address, using the correct zip code (02170). The hearing notice warned once again that if the petitioner's address was incorrectly listed on the NTA, he must furnish the immigration court with the correct

Page 55

address within five days. See 8 C.F.R. § 1003.15(d)(1). It further cautioned that hearing notices would be sent to the most recent address provided by the petitioner and would be deemed sufficient notice for future proceedings. The petitioner concedes that he received this hearing notice. Once again, the petitioner made no effort to correct the zip code listed on the NTA.

The petitioner did not show up for the scheduled hearing. The IJ gave the petitioner a second bite at the apple: she continued the hearing to May 1, 2001, and made sure that a notice of the new hearing date was sent to the petitioner. This notice was mailed to the address listed on the NTA.

When the petitioner again failed to appear, the IJ entered an order of removal in absentia. A copy of the removal order and instructions for filing a motion to reopen were mailed to the ...


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