Devsani v. Holder (2nd Cir June 21, 2012) do not go underground for 10 years and expect leniency
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.
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
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
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
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