Quishpin v. Sessions, 686 F. App'x 32

Petitioner Segundo Pablo Quishpin, an Ecuadorian national, had an in absentia removal order entered after failing to appear at an immigration hearing.
The government mailed the hearing notice to the Queens address Quishpin had provided on release from immigration detention in 2010.
Quishpin filed a motion to rescind the in absentia order, claiming he did not receive the hearing notice; he and his brother submitted affidavits asserting nonreceipt.
The Immigration Judge denied the motion; the Board of Immigration Appeals affirmed on March 8, 2016.
The agency applied the slight presumption of receipt (mail properly sent to address of record), found Quishpin did not rebut it, and noted he made no inquiries or applications in the five years after being placed in removal proceedings.
The IJ/BIA also found Quishpin failed to demonstrate prima facie eligibility for asylum/withholding/CAT based on an old, unnamed gang-threat allegation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the agency abused its discretion in denying rescission of the in absentia removal order by presuming receipt of notice	Quishpin: He did not receive the hearing notice; affidavits attest nonreceipt	Government: Notice was mailed to address of record; slight presumption of receipt applies; petitioner failed to rebut	Denied — agency reasonably applied presumption and petitioner failed to rebut it
Whether petitioner showed prima facie eligibility for asylum/withholding/CAT, supporting incentive to appear	Quishpin: Raised asylum/withholding/CAT claims tied to an earlier unnamed threat to force gang recruitment	Government: Claims are speculative, untimely or legally insufficient to show persecution/targeting or likelihood of torture	Denied — petitioner failed to establish prima facie eligibility; claims insufficient and untimely

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 (2d Cir. 2006) (court reviews IJ and BIA decisions for completeness)
Alrefae v. Chertoff, 471 F.3d 353 (2d Cir. 2006) (standard: abuse of discretion review for motions to rescind)
Silva-Carvalho Lopes v. Mukasey, 517 F.3d 156 (2d Cir. 2008) (slight presumption of receipt where notice mailed in accordance with procedures; agency must consider all rebuttal evidence practically)
Maghradze v. Gonzales, 462 F.3d 150 (2d Cir. 2006) (constructive satisfaction of receipt requirement when alien fails to update address after notice of duty to do so)
Ci Pan v. U.S. Att’y Gen., 449 F.3d 408 (2d Cir. 2006) (unfulfilled threats do not necessarily constitute persecution)
INS v. Elias-Zacarias, 502 U.S. 478 (1992) (forced recruitment is not asylum basis absent evidence of targeting on account of protected ground)
Mu-Xing Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) (CAT relief requires showing it is more likely than not the applicant would be tortured)