You cannot go underground for a decade and expect any relief


Published on

The 2nd and 9th Cir (at least) both dismissed Petition for Review of BIA Denials of Motions where the alien waited over a decade to file a Motion and Claim Ineffective Assistance.

Published in: News & Politics
  • Be the first to comment

  • Be the first to like this

No Downloads
Total views
On SlideShare
From Embeds
Number of Embeds
Embeds 0
No embeds

No notes for slide

You cannot go underground for a decade and expect any relief

  1. 1. The days of "going underground" or "below the radar" are a thing of the past. You cannot skip ImmigrationCourt and try to reopen proceedings a decade later in order to apply for relief such as cancelation of removal.It just does not work anymore. When will folks stop trying this losing approach? It boggles the mind. 11-2654-ag Chen v. Holder BIA LaForest, IJ A070 906 815 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 24th day of September, two thousand twelve. PRESENT: DENNIS JACOBS, Chief Judge, SUSAN L. CARNEY, CHRISTOPHER F. DRONEY, Circuit Judges. _____________________________________ HE SHENG CHEN, Petitioner, v. 11-2654-ag NAC ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Gary J. Yerman, New York, New York. FOR RESPONDENT: Tony West, Assistant Attorney General; Douglas E. Ginsburg, Assistant Director; Jessica R. C. Malloy, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
  2. 2. UPON DUE CONSIDERATION of this petition for review of aBoard of Immigration Appeals (“BIA”) decision, it is herebyORDERED, ADJUDGED, AND DECREED, that the petition for reviewis DENIED. Petitioner He Sheng Chen, a native and citizen of thePeople’s Republic of China, seeks review of a June 6, 2011decision of the BIA affirming the April 28, 2010 decision ofImmigration Judge (“IJ”) denying his motion to reopen hisimmigration proceedings. In re He Sheng Chen, No. A070 906815 (B.I.A. June 6, 2011), aff’g No. A070 906 815 (Immig. Ct.N.Y. City Apr. 28, 2010). We assume the parties’ familiaritywith the underlying facts and procedural history of the case. For completeness’ sake, we review both the IJ’s and theBIA’s opinions. See Wangchuck v. DHS, 448 F.3d 524, 528 (2dCir. 2006). We review the BIA’s denial of a motion to reopenfor abuse of discretion, mindful of the Supreme Court’sadmonition that such motions are “disfavored.” Ali v.Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam)(citing INS v. Doherty, 502 U.S. 314, 322-23 (1992)).Generally, a motion to reopen must be filed within 90 days ofthe final administrative order. See 8 U.S.C.§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although the 2
  3. 3. 90-day period may be equitably tolled when the motion is basedon a claim of ineffective assistance of counsel, in order towarrant equitable tolling, an alien must demonstrate “duediligence” in pursuing his claim during “both the period oftime before the ineffective assistance of counsel was orshould have been discovered and the period from that pointuntil the motion to reopen is filed.” Rashid v. Mukasey, 533F.3d 127, 131-32 (2d Cir. 2008); see also Cekic v. INS, 435F.3d 167, 170 (2d Cir. 2006). Here, over eleven years elapsed between Chen’s September1998 withdrawal of his asylum application and his April 2010motion to reopen his immigration proceedings. Chen arguesthat it was not until 2009, when his current counsel explainedto him that his previous counsel had improperly presented hisasylum application, that he discovered that his previouscounsel had been ineffective, and that he has acted with duediligence since that discovery. We have held, however, that“even an alien who is unfamiliar with the technicalities ofimmigration law can, under certain circumstances, be expectedto comprehend that he has received ineffective assistancewithout being explicitly told so by an attorney.” Rashid, 533F.3d at 132, n.3; see also Cekic, 435 F.3d at 171 (holding 3
  4. 4. that although petitioners reasonably relied on theirattorney’s assurances that he was actively pursuing theircase, they should have known they received ineffectiveassistance once they “were aware that there was an order ofremoval against them”). Chen’s affidavit supports theconclusion that he was aware in 1998 that his attorney wasineffective as it shows that he withdrew his asylumapplication after realizing that his attorney had failed toprepare or to request of him any supporting evidence. Theagency reasonably concluded that, at the time of thatwithdrawal and the IJ’s grant of voluntary departure, Chen wasaware that he had received ineffective assistance of counsel. Chen argues that Rashid is inapplicable because the factsof his case are comparable to other cases in which we haveheld that an alien may reasonably rely on an attorney’sassurances that his case is being pursued. Although incertain contexts an attorney’s assurances may excuse analien’s failure to pursue his claims, see, e.g., Cekic, 435F.3d at 171; Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir.2008), Chen does not argue that he failed to pursue his claimsbecause he believed that an attorney was pursuing them forhim, or because an attorney had given him incorrect advice. 4
  5. 5. Rather, the record supports the conclusion that Chen was awarein 1998 that he received ineffective assistance but that hefailed to exercise due diligence in pursuing his claims fromthat date until April 2010. The agency did not abuse its discretion in finding thatChen’s motion to reopen was untimely. Because that finding isdispositive, we decline to consider Chen’s argument that he isprima facie eligible for asylum, withholding of removal, andCAT relief. See 8 U.S.C. § 1229a(c)(7)(C). Finally, we lackjurisdiction to consider Chen’s argument that the agencyabused its discretion in failing to exercise its authority toreopen his proceedings sua sponte. See Ali v. Gonzales, 448F.3d 515, 518 (2d Cir. 2006). For the foregoing reasons, the petition for review isDENIED. As we have completed our review, the pending motionfor a stay of removal in this petition is DISMISSED as moot. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 5
  6. 6. [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 27, 2012 No. 11-15556 JOHN LEY Non-Argument Calendar CLERK ________________________ Agency No. A077-003-179MOHANRAJ RAHIMAN, Petitioner, versusU.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (June 27, 2012)Before CARNES, HULL and WILSON, Circuit Judges.PER CURIAM:
  7. 7. Mohanraj Rahiman, a native and citizen of Guyana, seeks review of theBoard of Immigration Appeals’ (“BIA”) order dismissing Rahiman’s appeal of theImmigration Judge’s (“IJ”) denial of his motion to reopen and rescind his inabsentia removal order, filed pursuant to the Immigration and Nationality Act(“INA”) § 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C). After review, we dismiss inpart and deny in part Rahiman’s petition for review. I. BACKGROUND While this petition is before this Court on only a motion to reopen, weoutline what happened in the nine years before the motion was filed.A. 1999 Notice to Appear On March 20, 1999, Rahiman tried to use a counterfeit Trinidadian passportto enter the United States through Miami International Airport and was detained.In credible fear interviews, Rahiman, who is of Indian descent, said that he fearedpersecution in Guyana by people of African descent. On April 5, 1999, the Immigration and Naturalization Service (“INS”)served Rahiman with a Notice to Appear, charging him with: (1) procuring, byfraud or willful misrepresentation, a visa, other documentation, or admission intothe United States, in violation of INA § 212(a)(6)(C)(i), 8 U.S.C.§ 1182(a)(6)(C)(i); and (2) being an alien who, at the time of application for 2
  8. 8. admission, was not in possession of a valid unexpired immigrant visa, reentrypermit, border crossing card, or other valid entry document, in violation of INA§ 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I). At a July 22, 1999 calendar hearing, Rahiman filed an application forasylum and withholding of removal. His application asserted that he fearedpersecution in Guyana based on his race and his involvement with the ProgressiveYouth Organization, which was aligned with the People’s Progressive Party, theruling political party and the party of the Indo-Guyanese. During the July 22hearing, the IJ advised Rahiman, orally and in writing, of the consequences of hisfailure to appear at his removal hearing.B. March 13, 2002 In Absentia Removal Order Rahiman’s asylum hearing was set for August 22, 2000, and notice wasmailed to Rahiman’s attorney. Rahiman did not appear at the hearing, butRahiman’s attorney appeared. Noting that Rahiman had received proper notice ofthe hearing, the IJ determined that Rahiman had abandoned his claims for relieffrom removal and ordered him removed in absentia. On September 5, 2000, Rahiman filed a motion to reopen his removalproceedings, contending that he had not appeared at the asylum hearing becausehe was afraid his immigration case would take a “wrong turn,” and thus became 3
  9. 9. nervous and could not board the airplane. The IJ denied the motion to reopen afterfinding that Rahiman had not shown exceptional circumstances. Rahimanappealed to the BIA, which determined that Rahiman had established exceptionalcircumstances and remanded to the IJ for further proceedings. The IJ set a new hearing date for March 13, 2002. On July 2, 2001, the IJmailed notice of the hearing to Rahiman’s counsel of record. Once again,Rahiman’s counsel attended the March 13, 2002 hearing, but Rahiman did notappear. The IJ stated that the hearing was held pursuant to proper notice anddetermined that Rahiman had abandoned his claims for relief. Noting that “theissue of removability [had been] resolved,” the IJ ordered Rahiman removed inabsentia.C. April 26, 2011 Motion to Reopen Nine years later, on April 26, 2011, Rahiman filed a motion to reopen hisMarch 13, 2002 removal hearing and to rescind his in absentia removal orderbased on “lack of notice and ineffective assistance of counsel.” Rahiman claimedthat he failed to attend the March 13, 2002 removal hearing because his attorneydid not inform him of it. Rahiman further argued that he was prejudiced by hisattorney’s ineffective assistance because Rahiman recently was detained and wassubject to removal to Guyana, where his life would be threatened. Rahiman 4
  10. 10. attached a copy of an April 20, 2011 Florida Bar complaint in which he allegedthat his attorney in 2002 was not cooperative or helpful, but did not claim that hisattorney failed to tell him of the scheduled hearing. Rahiman also attached his sworn statement. Rahiman averred that hisattorney became upset because Rahiman called so often to check on the status ofhis immigration case and advised Rahiman he would call when there was news.When Rahiman did not hear from his attorney, Rahiman tried to call him and got arecording that the number was no longer in service. Rahiman then learned that aremoval order had been entered on March 13, 2002 and decided he would pursuehis education, as follows: I decided to wait and give him his time since I was told these proceedings can take several months even up to a year. I never heard from him since and finally when I call him, I got a recording saying this number is no longer in service. But I did find out that there was a deportation order against me on March 13, 2002. At this time I became very frustrated and decided I would go to school and pursue my education.Rahiman stated that, thereafter, he earned an associate’s degree at BronxCommunity College, a bachelor’s degree from the City University of New York in2006 and a master’s degree from Fordham University in 2008. Rahiman subsequently submitted a second Florida Bar complaint, datedMay 24, 2011, in which Rahiman claimed that he repeatedly tried to reach his 5
  11. 11. attorney and the failure to reach his attorney resulted in Rahiman not knowing thedate of his March 13, 2002 hearing. Rahiman also submitted documentationshowing that on May 13, 2009, and again on March 17, 2011, he sought assistancefrom a New York immigration clinic. With a clinic attorney’s help, Rahimanrequested a copy of his immigration file pursuant to the Freedom of InformationAct and received the file in May 2011. On August 17, 2011, the IJ denied Rahiman’s motion to reopen. The IJnoted that, although Rahiman claimed he did not receive notice of the March 13,2002 removal hearing due to his counsel’s ineffective assistance, his counselappeared on his behalf at that 2002 hearing. The IJ also found, based onRahiman’s sworn statement, that Rahiman waited nine years after learning of theremoval order to file the motion to reopen. The IJ concluded that Rahiman’smotion to reopen was time-barred because it was filed more than 180 days afterentry of the removal order and that ineffective assistance did not equitably toll the180-day deadline. The IJ alternatively concluded that, even if equitable tollingapplied, Rahiman had not acted with due diligence. Rahiman appealed to the BIA arguing, inter alia, that the IJ misreadRahiman’s sworn statement and that Rahiman did not find out about the inabsentia removal order until some time after the March 13, 2002 hearing, as 6
  12. 12. follows: Respondent is not saying that he found out on March 13, 2002 he was ordered deported. He is saying he found out that his order of removal was entered on that day. He also is not saying that he found out about his removal at the time he was calling his lawyer back in 2002. Rather he is highlighting here that it is at the time that he finally did call him, after waiting all this time, that he discovered that the lawyer’s phone was disconnected, and it is roughly around that exact time that he later learned he was ordered removed.Rahiman contended that he was diligent because he sought help from theimmigration clinic in 2009. However, Rahiman did not say when he learned of theMarch 13, 2002 removal order or why he waited until 2009 to seek legalassistance. The BIA dismissed Rahiman’s appeal. The BIA determined that Rahimanreceived proper notice of the March 13, 2002 hearing because his counsel actuallyreceived notice of the hearing. To the extent Rahiman claimed exceptionalcircumstances, his motion to reopen was time-barred and the 180-day deadlinecould not be equitably tolled even in the case of ineffective assistance of counsel.Alternatively, the BIA concluded that Rahiman’s lack of due diligence foreclosedthe application of equitable tolling. Even though Rahiman had notice that the INSsought to remove him, he failed to take any actions to inquire into the status of hisproceedings from 2002 until he sought legal advice in May 2009 and he failed to 7
  13. 13. offer any explanation for that lengthy wait. The BIA also declined to reopenRahiman’s proceedings sua sponte. Rahiman petitioned for review. II. DISCUSSION If an alien fails to appear at his removal hearing, the IJ must order the alienremoved in absentia if the government proves by clear, unequivocal andconvincing evidence that the alien received proper notice and is removable. SeeINA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A); 8 C.F.R. §§ 1208.10,1208.2(c)(3)(ii). The alien may move to reopen the proceedings and rescind the inabsentia removal order: (1) within 180 days after the entry of the in absentiaremoval order if he shows “that the failure to appear was because of exceptionalcircumstances”; or (2) “at any time” if he shows that he did not receive propernotice of the hearing. INA § 240(b)(5)(C)(i)-(ii), 8 U.S.C. § 1229a(b)(5)(C)(i)-(ii).Here, Rahiman filed his motion to reopen based on both lack of proper notice andexceptional circumstances.1 1 We review the denial of a motion to reopen for abuse of discretion. Anin v. Reno, 188F.3d 1273, 1276 (11th Cir. 1999). “Our review is limited to determining whether there has beenan exercise of administrative discretion and whether the matter of exercise has been arbitrary orcapricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (internal quotationmarks omitted). In the context of a motion to reopen and rescind a removal order entered inabsentia, our review is limited to: (1) “the validity of the notice provided to the alien”; (2) “thereasons for the alien’s not attending the proceeding”; and (3) “whether or not the alien isremovable.” INA § 240(b)(5)(D), 8 U.S.C. § 1229a(b)(5)(D); see also Contreras-Rodriguez v.U.S. Att’y Gen., 462 F.3d 1314, 1317 (11th Cir. 2006). Where, as here, the BIA did notexpressly adopt the IJ’s decision or reasoning, we review only the BIA’s decision. See Al Najjar 8
  14. 14. A. Notice of March 13, 2002 Hearing Rahiman argues that the BIA violated his due process rights when it foundthat he received proper notice of the asylum hearing despite his attorney’sineffective assistance. In removal proceedings, the IJ is required to provide an alien noticeregarding the time and place of each hearing. INA § 239(a)(1)-(2), 8 U.S.C.§ 1229(a)(1)-(2). That notice may be provided by personal service on the alien orservice by mail to the alien or the alien’s counsel of record. INA § 239(a)(1),(2)(a), 8 U.S.C. § 1229(a)(1), (2)(a); see also 8 C.F.R. § 1292.5(a). “Due processis satisfied if notice is accorded in a manner reasonably calculated to ensure thatnotice reaches the alien,” and service by mail to an alien’s counsel of recordsatisfies this standard. Anin v. Reno, 188 F.3d 1273, 1277-78 (11th Cir. 1999)(internal quotation marks omitted). Therefore, actual notice to the alien is notrequired under the INA and “the fact that [the alien] did not receive actual notice .. . does not present a violation of the Due Process Clause.” Id. at 1276-77(interpreting predecessor to INA § 239(a), 8 U.S.C. § 1229(a), formerly found atINA § 242B(c), 8 U.S.C. § 1252b(c) (1994)). Here, the INS mailed notice of the March 13, 2002 hearing to Rahiman’sv. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). 9
  15. 15. counsel of record. That notice contained information as to the date, time and placeof the 2002 hearing and the consequences of failing to appear. Importantly,Rahiman’s counsel actually received the notice given that he attended the hearing.The notice was sufficient and was sent in a manner reasonably calculated to ensureit reached Rahiman. Rahiman’s motion to reopen thus did not show that he failedto receive proper notice of the March 13, 2002 hearing. Accordingly, the BIA didnot violate Rahiman’s due process rights, much less abuse its discretion, when itdenied Rahiman’s motion to reopen based on lack of notice.B. Exceptional Circumstances The other basis for Rahiman’s motion to reopen is his attorney’s ineffectiveassistance. Under some circumstances, an attorney’s ineffective assistance canconstitute “exceptional circumstances.” See, e.g., Montano Cisneros v. U.S. Att’yGen., 514 F.3d 1224, 1226 (11th Cir. 2008) (involving aliens who failed to appearbecause counsel advised them they did not need to attend the scheduled hearing).However, an alien’s motion to reopen and rescind an in absentia removal orderbased on exceptional circumstances must be filed “within 180 days after the dateof the order of removal.” INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i).This Court has explained that because “congressional filing deadlines should beread literally by federal courts,” the INA’s time limitations with respect to motions 10
  16. 16. to reopen, although “inherently . . . arbitrary and harsh,” are “jurisdictional andmandatory.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1150 (11th Cir. 2005)(involving 90-day deadline for general motions to reopen found in INA§ 240(c)(7)(C), 8 U.S.C. § 1229a(c)(7)(C)); see also Anin, 188 F.3d at 1278.Consequently, this Court has concluded that those statutory deadlines cannot beequitably tolled or excused because of ineffective assistance of counsel. See Abdi,430 F.3d at 1150; Anin, 188 F.3d at 1278. Here, it is undisputed that Rahiman’s motion to reopen based on ineffectiveassistance of counsel was not filed until April 26, 2011, nine years after the IJ’sMarch 13, 2002 removal order. Thus, to the extent Rahiman’s motion to reopenwas based on exceptional circumstances, Rahiman failed to timely file it within the180-day deadline in INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i). Rahiman argues that the 180-day deadline is subject to equitable tolling dueto his counsel’s ineffective assistance. Rahiman points out that other circuits havedetermined that the INA’s filing deadlines for motions to reopen are akin tostatutes of limitations and not jurisdictional and thus can be equitably tolled. See,e.g., Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir. 2005); Iavorski v. INS, 232F.3d 124, 129-30 (2d Cir. 2000); Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir.1999). We are bound by Anin and Abdi, however, which do not recognize 11
  17. 17. equitable tolling of filing deadlines for motions to reopen based on ineffectiveassistance of counsel. Accordingly, the BIA did not abuse its discretion when itconcluded that Rahiman’s motion to reopen and rescind his in absentia removalorder based on exceptional circumstances was time-barred. In any event, we agree with the BIA that, even if the 180-day deadline couldbe equitably tolled, the circumstances in Rahiman’s case would not warrant suchequitable relief because Rahiman failed to exercise due diligence. By his ownadmission, Rahiman knew of the in absentia removal order before be decided topursue his education. Given that Rahiman obtained his bachelor’s degree in 2006,he learned of the removal order well before 2006. Yet Rahiman took no actionuntil 2009, when he sought legal assistance from an immigration clinic, and he didnot file his motion to reopen until 2011. Finally, Rahiman contends the BIA abused its discretion when it did notreopen his removal proceedings sua sponte pursuant to 8 C.F.R. § 1003.2(a). Welack subject-matter jurisdiction to review such a claim. See Lenis v. U.S. Att’yGen., 525 F.3d 1291, 1292-93 (11th Cir. 2008). Contrary to Rahiman’s argument,the Supreme Court has not overruled Lenis. See Kucana v. Holder, 558 U.S. ___,130 S. Ct. 827, 839 n.18 (2010) (“We express no opinion on whether federalcourts may review the Board’s decision not to reopen removal proceedings sua 12
  18. 18. sponte. Courts of Appeals have held that such decisions are unreviewable becausesua sponte reopening is committed to agency discretion by law.”). Accordingly,Rahiman’s petition is dismissed to the extent it seeks review of the BIA’s failureto sua sponte reopen his removal proceedings. DENIED IN PART, DISMISSED IN PART. 13
  19. 19. 11-3162-ag Link to case on 2nd Circuit website Devsani v. Holder BIA Montante, IJ A074 857 273/274 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 21st day of June, two thousand twelve. 5 It seems quite ridiculous now (in 2012) to think 6 PRESENT: that you can simply ignore your Immigration 7 GUIDO CALABRESI, Court date and go underground for a decade or 8 REENA RAGGI, so and then file a Motion to Reopen and seek 9 DENNY CHIN, adjustment of status. That said, for too many10 Circuit Judges. years that was the normal expectation! Prior to11 legislative changes, that ridiculous outcome12 ___________________________________ was the norm! People used to be able to abuse13 the immigration system with impunity. They14 PANKAJ PRAVIN DEVSANI, used to be able to wait a decade in order to15 ASMITHA PANKAJ DEVSANI, qualify to file for discretionary relief. Things16 Petitioners, have changed but unrealistic expectations have17 not caught up with the new reality.18 v. 11-3162-ag19 NAC20 ERIC H. HOLDER, JR., UNITED STATES21 ATTORNEY GENERAL,22 Respondent.23 _____________________________________2425 FOR PETITIONERS: Judy Resnick, Esq., Far Rockaway,26 New York.2728 FOR RESPONDENT: Tony West, Assistant Attorney29 General; Melissa Neiman-Kelting,30 Senior Litigation Counsel; Kelly J.31 Walls, Trial Attorney, Office of32 Immigration Litigation, Civil33 Division, United States Department34 of Justice, Washington, D.C.
  20. 20. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioners Pankaj Pravin Devsani and Asmitha Pankaj 6 Devsani, husband and wife and natives and citizens of India, 7 seek review of a July 6, 2011 order of the BIA affirming the 8 July 14, 2010 decision of Immigration Judge (“IJ”) Philip J. 9 Montante, Jr. denying their motions to rescind in absentia10 removal orders and reopen their proceedings. In re Pankaj11 Pravin Devsani, Nos. A074 857 273/274 (B.I.A. July 6, 2011),12 aff’g Nos. A074 857 273/274 (Immig. Ct. Buffalo, N.Y. July13 14, 2010). We assume the parties’ familiarity with the14 underlying facts and procedural history of this case.15 Under the circumstances of this case, we have reviewed16 the decision of the IJ as supplemented by the BIA. See Yan17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We18 review the agency’s denial of motions to rescind or reopen19 for abuse of discretion. See Alrefae v. Chertoff, 471 F.3d20 353, 357 (2d Cir. 2006).21 A deportation order entered in absentia may be22 rescinded if the alien shows he did not receive notice of23 the removal hearing. See 8 U.S.C. § 1229a(b)(5)(C)(ii); 2
  21. 21. 1 accord Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir. 2006). 2 In this case, the IJ reasonably determined that the 3 petitioners received notice of their hearing because (1) 4 they received written Notices to Appear specifying the 5 hearing date, which they signed to acknowledge that they 6 received oral notice of their contents; and (2) reports 7 written by the border patrol agents who arrested the 8 petitioners indicated that the agents had been able to 9 communicate with them in English and Hindi. The petitioners10 had no right to receive notice in Gujarati, which they11 asserted was their “best language,” Pet’rs Br. 14, since12 they received adequate oral and written notice. See Lopes,13 468 F.3d at 85 (noting that the governing statute does not14 require that an alien receive notice in any particular15 language).16 Because petitioners did not deny that they received17 notice of their hearing’s date and time, but only complain18 of the language in which it was communicated, petitioners19 failed to demonstrate that they did not receive notice, see20 8 U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R.21 § 1003.23(b)(4)(iii)(a)(1), no evidentiary hearing was22 necessary to resolve disputed issues of fact. Moreover, the 3
  22. 22. 1 BIA applied the proper standard of review on appeal, 2 reviewing the IJ’s factual findings for clear error and its 3 legal conclusions de novo. See 8 C.F.R. § 1003.1(d)(3)(i), 4 (ii). In sum, the agency did not abuse its discretion, or 5 deprive the petitioners of due process, in denying their 6 motions to rescind because they received notice of their 7 removal hearing. 8 Insofar as the petitioners sought reopening based on 9 their desire to apply for adjustment of status, the agency10 did not abuse its discretion in denying their motion to11 reopen as untimely. Generally, motions to reopen must be12 filed within 90 days of a removal order. See 8 U.S.C.13 § 1229a(c)(7)(C)(i). Petitioners’ motions were filed over14 ten years after their in absentia removal orders, and they15 did not present circumstances that would excuse their motion16 from that time limit to the agency. We do not have17 jurisdiction to review the BIA’s discretionary decision not18 to reopen proceedings sua sponte. See Ali v. Gonzales, 44819 F.3d 515, 518 (2d Cir. 2006).20 Finally, the agency’s decision in this case did not21 deprive the petitioners of due process. Petitioners22 received “a full and fair opportunity to present [their] 4
  23. 23. 1 claims” by presenting evidence with their motions, thus 2 eliminating their procedural due process claim. See Burger 3 v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007). Nor were 4 petitioners’ substantive due process rights violated. The 5 agency’s decision to deny their motion to reopen as untimely 6 and to decline to reopen sua sponte was not “so egregious, 7 so outrageous, that it may fairly be said to shock the 8 contemporary conscience.” See Bolmer v. Oliveira, 594 F.3d 9 134, 142 (2d Cir. 2010) (quoting County of Sacramento v.10 Lewis, 523 U.S. 833, 847 n.8 (1998)).11 For the foregoing reasons, the petition for review is12 DENIED. As we have completed our review, any stay of13 removal that the Court previously granted in this petition14 is VACATED, and any pending motion for a stay of removal in15 this petition is DISMISSED as moot. Any pending request for16 oral argument in this petition is DENIED in accordance with17 Federal Rule of Appellate Procedure 34(a)(2), and Second18 Circuit Local Rule 34.1(b).19 FOR THE COURT:20 Catherine O’Hagan Wolfe, Clerk2122 5
  24. 24. FILED NOT FOR PUBLICATION SEP 24 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUITEDGAR SAMUEL LARA-GARCIA, No. 10-73195 Petitioner, Agency No. A072-307-959 v. MEMORANDUM *ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 10, 2012 **Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges. Edgar Samuel Lara-Garcia, a native and citizen of Guatemala, petitions forreview of an order of the Board of Immigration Appeals (“BIA”) denying hismotion to reopen deportation proceedings. Our jurisdiction is governed by8 U.S.C. § 1252. Reviewing for abuse of discretion the BIA’s denial of a motion * This disposition is not appropriate for publication and is not precedentexcept as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decisionwithout oral argument. See Fed. R. App. P. 34(a)(2).
  25. 25. to reopen, Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011) (citation omitted),we deny in part and dismiss in part the petition for review. The BIA did not abuse its discretion by denying Lara-Garcia’s motion toreopen as untimely because the motion was filed approximately 13 years afterissuance of the final administrative order, see 8 C.F.R. §§ 1003.2(c)(2), 1241.31,and Lara-Garcia failed to demonstrate the due diligence necessary to warrantequitable tolling of the filing deadline, where his motion did not state when he haddefinitively learned of the alleged ineffective assistance of his former attorney, seeAvagyan, 646 F.3d at 679 (measuring the end of the tolling period from “whenpetitioner definitively learns of the harm resulting from counsel’s deficiency”). We lack jurisdiction to review Lara-Garcia’s due process challenge to theBIA’s decision to invoke the summary-affirmance procedure in its 2001 order,because he failed to raise this contention in his motion to reopen before the BIA.See Tijani v. Holder, 628 F.3d 1071, 1079 (9th Cir. 2010) (“We lack jurisdiction toreview legal claims not presented in an alien’s administrative proceedings beforethe BIA.”). Finally, because our determination regarding the untimeliness of Lara-Garcia’s motion to reopen is dispositive of his petition for review, we decline toconsider his assertion that he remains prima facie eligible for relief from removal. 2 10-73195
  26. 26. See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006) (declining toreach nondispositive challenges to a BIA order). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 10-73195