Jianxin Zheng v. Jefferson Sessions, III

Case: 16-60630 Document: 00514523537 Page: 1 Date Filed: 06/21/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 16-60630 Fifth Circuit Summary Calendar FILED June 21, 2018 Lyle W. Cayce JIANXIN ZHENG, Clerk Petitioner, v. JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL, Respondent. Petitions for Review of an Order of the Board of Immigration Appeals BIA No. A089 997 208 Before JONES, OWEN, and HAYNES, Circuit Judges. PER CURIAM: * After he failed to appear for his removal hearing, an immigration judge (IJ) found petitioner Jianxin Zheng, a native and citizen of China, removable on the grounds that he had overstayed his visa and had not obtained permission to remain in the United States. Because Zheng received constructive notice of the hearing when notice was mailed to counsel, see 8 C.F.R. § 292.5(a), the IJ ordered Zheng removed to China and entered an in * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 16-60630 Document: 00514523537 Page: 2 Date Filed: 06/21/2018 No. 16-60630 absentia order so stating, see 8 U.S.C. § 1229a(b)(5)(A). Zheng now petitions for review of two orders of the Board of Immigration Appeals (BIA). The first order (1) dismissed the appeal of the denial of his untimely motion to reopen his immigration proceedings to rescind the in absentia removal order and (2) dismissed his motion to reconsider that denial. The second order denied his motion to reconsider the dismissal of his appeal. In all relevant proceedings and pleadings, including this one, Zheng has asserted that he should have received personal notice of the removal hearing, that his counsel of record and another retained attorney were ineffective for failing to notify him of the removal hearing, and that his failure to abide by the BIA’s procedural requirements for establishing that counsel was ineffective when a motion to reopen is filed should be excused. The BIA rejected those arguments. Motions to reopen immigration proceedings and for reconsideration are disfavored and reviewed under a highly deferential abuse of discretion standard. Lara v. Trominski, 216 F.3d 487, 496-97, 499 n.12 (5th Cir. 2000). We will affirm the BIA’s decision to deny either type of motion if it is not capricious, racially invidious, without evidentiary foundation, or arbitrary. Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir. 2005). The BIA did not abuse its discretion when it found that the notice of the removal hearing provided to Zheng’s counsel of record was legally sufficient. See § 292.5(a); Men Ken Chang v. Jiugni, 669 F.2d 275, 277-78 (5th Cir. 1982). Because Zheng received constructive notice of the hearing when notice was provided to his counsel, he had 180 days to file a motion to reopen his immigration proceedings. See 8 U.S.C. § 1229a(b)(5)(C)(i), (ii). He failed to do so. Thus, his motion to reopen was untimely. 2 Case: ...

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