Serafin Luis LALVAY-CHACHA, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 468 F. App'x 66

SUMMARY ORDER Petitioner Serafín Luis Lalvay-Chacha, a native and citizen of Ecuador, seeks review of a September 9, 2010, order of the BIA affirming the December 7, 2009, decision of Immigration Judge (“IJ”) Michael W. Straus denying his motion to rescind an in absentia removal order and reopen his proceedings. In re Serafin Luis Lalvay-Chacha, No. [ AXXX XXX XXX ] (B.I.A. Sept. 9, 2010), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Dec. 7, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

Under the circumstances of this case, we have reviewed both the IJ’s and the BIA’s opinions. Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s denial of a motion to rescind for abuse of discretion. See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.2006). A deportation order entered in absentia may be rescinded if the alien shows he did not receive notice of the hearing. See Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir.2006) (per curiam) (“Lopes I ”). There is a slight presumption of receipt because the record shows the notice was accurately addressed and mailed. Id. at 85-86.

The agency did not abuse its discretion in con-eluding that the circumstantial evidence in this case did not rebut that presumption. The BIA reasonably noted that Lalvay-Chacha did not show that he had an incentive to attend his immigration court hearing, as he did not have any applications which could have secured him relief from deportation pending at the time. Cf. Lopes v. Mukasey, 517 F.3d 156, 160 (2d Cir.2008) (“Lopes II”) (concluding that alien had incentive to appear because he had a “vested interest” in an application filed on his behalf).

Moreover, while Lal-vay-Chacha hired an attorney and filed a motion to reopen promptly after he received notice of the in absentia deportation order, the record supports the BIA’s conclusion that he did not pursue his case with sufficient diligence because he did not appeal the IJ’s denial of his first motion to reopen but rather remained in the United States for nineteen years until he was again placed in removal proceedings. See Lopes I, 468 F.3d at 86 (discussing actions which would suggest that an alien “is not an absconder”). For the foregoing reasons, the petition for review is DENIED.

As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and 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).