Assan Jeng v. U.S. Attorney General

Case: 16-17243 Date Filed: 11/28/2017 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-17243 Non-Argument Calendar ________________________ Agency No. A098-050-743 ASSAN JENG, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (November 28, 2017) Before ED CARNES, Chief Judge, JULIE CARNES, and FAY, Circuit Judges. PER CURIAM: Case: 16-17243 Date Filed: 11/28/2017 Page: 2 of 4 In January 2006 the United States Citizenship and Immigration Services sent Assan Jeng a Notice to Appear, charging him with being removable under 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States for a time longer than permitted. In July 2007 Jeng failed to appear at his removal hearing, and an Immigration Judge ordered his removal in absentia under 8 U.S.C. § 1229a(b)(5). Six years later Jeng filed a motion to reopen his removal proceedings and rescind the in absentia order of removal. The IJ denied his motion after finding that Jeng failed to rebut the presumption that he received the Notice to Appear. The IJ also exercised its discretion to deny the motion after concluding that Jeng failed to act with due diligence in seeking to reopen his removal proceedings. The Board of Immigration Appeals affirmed the IJ’s denial on both grounds. Jeng petitions for review of the BIA’s order, contending that its decision to deny his motion to reopen was arbitrary and capricious. We review for an abuse of discretion the BIA’s denial of a motion to reopen. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). The BIA’s discretion to reopen “is so wide that even if the party moving has made out a prima facie case for relief, the BIA can deny a motion to reopen a deportation order.” Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999), abrogated on other grounds by Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357 (11th Cir. 2013). Given that deferential standard, judicial review is limited to determining “whether the BIA 2 Case: 16-17243 Date Filed: 11/28/2017 Page: 3 of 4 exercised its discretion in an arbitrary or capricious manner.” Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). In most cases an alien may file only one motion to reopen, and that motion must be filed within 90 days of the date of entry of a final order of removal. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). But an alien may file a motion to reopen in order to rescind an in absentia order of removal at any time if he shows that he never received notice of the removal proceeding. 8 U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(ii). Even if we assume that Jeng never received the Notice to Appear, the BIA did not abuse its discretion by denying his motion to reopen. 1 Jeng’s removal hearing took place on July 3, 2007, and he was ordered removed in absentia ...

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