Jose Abraham SANCHEZ-PEREZ, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, et al., Respondents, 361 F. App'x 188

SUMMARY ORDER Petitioner Jose Abraham Sanchez-Perez, a native and citizen of the Dominican Republic, seeks review of the November 14, 2008 order of the BIA denying his motion to reopen. In re Jose Abraham Sanchez-Perez, No. [ AXXX XXX XXX ] (B.I.A. Nov. 14, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)).

Sanchez-Perez filed his motion to reopen, challenging the BIA’s affirmation of the immigration judge’s (“IJ”) decision denying a motion to reopen his proceedings following entry of a deportation order entered in absentia in 1997. Sanchez-Perez asserted that his application to adjust status should be reviewed because he had not received notice of the hearing, following which the IJ entered the in absentia order.

The BIA denied Sanchez-Perez’s motion to reopen filed on September 16, 2008, as untimely filed following the prior BIA order, entered June 11, 2008, 2008 WL 2783067, affirming the IJ’s denial of the motion to reopen the proceedings. As Sanchez-Perez filed the motion more than 90 days after the prior BIA order and provided no explanation for any delay or exception from the timing requirement, it was not an abuse of discretion for the BIA to deny the motion. See 8 C.F.R. § 1003.2(c)(2), (3).

Moreover, the administrative record establishes that there is no merit to Sanchez-Perez’s underlying claim that he had not received notice of the hearing, thus entitling him to reopening or rescission of the in absentia order. The hearing notice in the record was personally served on Sanchez-Perez and his counsel at a hearing and Sanchez-Perez’s affidavit confirms that he received the notice. Contrary to his argument in this Court, there is no requirement that notice be made by certified mail. See 8 U.S.C. § 1229(a)(2)(A) (providing that service by mail is required where “personal service is not practicable.”).

Because Sanchez-Perez moved to reopen his proceedings ten years after entry of the in absentia order, any motion to reopen or rescind was untimely given that the record clearly establishes that he had received notice of the hearing. See 8 U.S.C. § 1252b(c)(3) (1996) (providing, absent lack of notice, a 180-day period for challenging an in absentia order via a motion to reopen or rescind); 8 C.F.R. 1003.2(c)(2), (3) (providing absent a relevant exception, a 90-day period for a filing a motion to reopen). We have considered all of Sanchez-Perez’s arguments and determined them to be without merit.

For the foregoing reasons, the petition for review and motion for a stay of removal are DENIED.