you cannot go underground for a decade and expect any relief
DESCRIPTION
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.TRANSCRIPT
11-2654-agChen v. Holder
BIALaForest, IJ
A070 906 815
UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILEDON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATEPROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENTFILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONICDATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARYORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appealsfor the Second Circuit, held at the Daniel Patrick MoynihanUnited States Courthouse, 500 Pearl Street, in the City of NewYork, 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-agNAC
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, AssistantDirector; Jessica R. C. Malloy, TrialAttorney, Office of ImmigrationLitigation, United States Department ofJustice, Washington, D.C.
2
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Petitioner He Sheng Chen, a native and citizen of the
People’s Republic of China, seeks review of a June 6, 2011
decision of the BIA affirming the April 28, 2010 decision of
Immigration Judge (“IJ”) denying his motion to reopen his
immigration proceedings. In re He Sheng Chen, No. A070 906
815 (B.I.A. June 6, 2011), aff’g No. A070 906 815 (Immig. Ct.
N.Y. City Apr. 28, 2010). We assume the parties’ familiarity
with the underlying facts and procedural history of the case.
For completeness’ sake, we review both the IJ’s and the
BIA’s opinions. See Wangchuck v. DHS, 448 F.3d 524, 528 (2d
Cir. 2006). We review the BIA’s denial of a motion to reopen
for abuse of discretion, mindful of the Supreme Court’s
admonition 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 of
the final administrative order. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although the
3
90-day period may be equitably tolled when the motion is based
on a claim of ineffective assistance of counsel, in order to
warrant equitable tolling, an alien must demonstrate “due
diligence” in pursuing his claim during “both the period of
time before the ineffective assistance of counsel was or
should have been discovered and the period from that point
until the motion to reopen is filed.” Rashid v. Mukasey, 533
F.3d 127, 131-32 (2d Cir. 2008); see also Cekic v. INS, 435
F.3d 167, 170 (2d Cir. 2006).
Here, over eleven years elapsed between Chen’s September
1998 withdrawal of his asylum application and his April 2010
motion to reopen his immigration proceedings. Chen argues
that it was not until 2009, when his current counsel explained
to him that his previous counsel had improperly presented his
asylum application, that he discovered that his previous
counsel had been ineffective, and that he has acted with due
diligence since that discovery. We have held, however, that
“even an alien who is unfamiliar with the technicalities of
immigration law can, under certain circumstances, be expected
to comprehend that he has received ineffective assistance
without being explicitly told so by an attorney.” Rashid, 533
F.3d at 132, n.3; see also Cekic, 435 F.3d at 171 (holding
4
that although petitioners reasonably relied on their
attorney’s assurances that he was actively pursuing their
case, they should have known they received ineffective
assistance once they “were aware that there was an order of
removal against them”). Chen’s affidavit supports the
conclusion that he was aware in 1998 that his attorney was
ineffective as it shows that he withdrew his asylum
application after realizing that his attorney had failed to
prepare or to request of him any supporting evidence. The
agency reasonably concluded that, at the time of that
withdrawal and the IJ’s grant of voluntary departure, Chen was
aware that he had received ineffective assistance of counsel.
Chen argues that Rashid is inapplicable because the facts
of his case are comparable to other cases in which we have
held that an alien may reasonably rely on an attorney’s
assurances that his case is being pursued. Although in
certain contexts an attorney’s assurances may excuse an
alien’s failure to pursue his claims, see, e.g., Cekic, 435
F.3d at 171; Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir.
2008), Chen does not argue that he failed to pursue his claims
because he believed that an attorney was pursuing them for
him, or because an attorney had given him incorrect advice.
5
Rather, the record supports the conclusion that Chen was aware
in 1998 that he received ineffective assistance but that he
failed to exercise due diligence in pursuing his claims from
that date until April 2010.
The agency did not abuse its discretion in finding that
Chen’s motion to reopen was untimely. Because that finding is
dispositive, we decline to consider Chen’s argument that he is
prima facie eligible for asylum, withholding of removal, and
CAT relief. See 8 U.S.C. § 1229a(c)(7)(C). Finally, we lack
jurisdiction to consider Chen’s argument that the agency
abused its discretion in failing to exercise its authority to
reopen his proceedings sua sponte. See Ali v. Gonzales, 448
F.3d 515, 518 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
FILEDU.S. COURT OF APPEALS
ELEVENTH CIRCUITJUNE 27, 2012
JOHN LEYCLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 11-15556 Non-Argument Calendar
________________________
Agency No. A077-003-179
MOHANRAJ RAHIMAN,
Petitioner,
versus
U.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:
Mohanraj Rahiman, a native and citizen of Guyana, seeks review of the
Board of Immigration Appeals’ (“BIA”) order dismissing Rahiman’s appeal of the
Immigration Judge’s (“IJ”) denial of his motion to reopen and rescind his in
absentia 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 in
part and deny in part Rahiman’s petition for review.
I. BACKGROUND
While this petition is before this Court on only a motion to reopen, we
outline 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 passport
to enter the United States through Miami International Airport and was detained.
In credible fear interviews, Rahiman, who is of Indian descent, said that he feared
persecution 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, by
fraud or willful misrepresentation, a visa, other documentation, or admission into
the 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
admission, was not in possession of a valid unexpired immigrant visa, reentry
permit, 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 for
asylum and withholding of removal. His application asserted that he feared
persecution in Guyana based on his race and his involvement with the Progressive
Youth Organization, which was aligned with the People’s Progressive Party, the
ruling political party and the party of the Indo-Guyanese. During the July 22
hearing, the IJ advised Rahiman, orally and in writing, of the consequences of his
failure 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 was
mailed to Rahiman’s attorney. Rahiman did not appear at the hearing, but
Rahiman’s attorney appeared. Noting that Rahiman had received proper notice of
the hearing, the IJ determined that Rahiman had abandoned his claims for relief
from removal and ordered him removed in absentia.
On September 5, 2000, Rahiman filed a motion to reopen his removal
proceedings, contending that he had not appeared at the asylum hearing because
he was afraid his immigration case would take a “wrong turn,” and thus became
3
nervous and could not board the airplane. The IJ denied the motion to reopen after
finding that Rahiman had not shown exceptional circumstances. Rahiman
appealed to the BIA, which determined that Rahiman had established exceptional
circumstances and remanded to the IJ for further proceedings.
The IJ set a new hearing date for March 13, 2002. On July 2, 2001, the IJ
mailed notice of the hearing to Rahiman’s counsel of record. Once again,
Rahiman’s counsel attended the March 13, 2002 hearing, but Rahiman did not
appear. The IJ stated that the hearing was held pursuant to proper notice and
determined that Rahiman had abandoned his claims for relief. Noting that “the
issue of removability [had been] resolved,” the IJ ordered Rahiman removed in
absentia.
C. April 26, 2011 Motion to Reopen
Nine years later, on April 26, 2011, Rahiman filed a motion to reopen his
March 13, 2002 removal hearing and to rescind his in absentia removal order
based on “lack of notice and ineffective assistance of counsel.” Rahiman claimed
that he failed to attend the March 13, 2002 removal hearing because his attorney
did not inform him of it. Rahiman further argued that he was prejudiced by his
attorney’s ineffective assistance because Rahiman recently was detained and was
subject to removal to Guyana, where his life would be threatened. Rahiman
4
attached a copy of an April 20, 2011 Florida Bar complaint in which he alleged
that his attorney in 2002 was not cooperative or helpful, but did not claim that his
attorney failed to tell him of the scheduled hearing.
Rahiman also attached his sworn statement. Rahiman averred that his
attorney became upset because Rahiman called so often to check on the status of
his 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 a
recording that the number was no longer in service. Rahiman then learned that a
removal order had been entered on March 13, 2002 and decided he would pursue
his education, as follows:
I decided to wait and give him his time since I was told theseproceedings can take several months even up to a year. I never heardfrom him since and finally when I call him, I got a recording saying thisnumber is no longer in service. But I did find out that there was adeportation order against me on March 13, 2002. At this time I becamevery frustrated and decided I would go to school and pursue myeducation.
Rahiman stated that, thereafter, he earned an associate’s degree at Bronx
Community College, a bachelor’s degree from the City University of New York in
2006 and a master’s degree from Fordham University in 2008.
Rahiman subsequently submitted a second Florida Bar complaint, dated
May 24, 2011, in which Rahiman claimed that he repeatedly tried to reach his
5
attorney and the failure to reach his attorney resulted in Rahiman not knowing the
date of his March 13, 2002 hearing. Rahiman also submitted documentation
showing that on May 13, 2009, and again on March 17, 2011, he sought assistance
from a New York immigration clinic. With a clinic attorney’s help, Rahiman
requested a copy of his immigration file pursuant to the Freedom of Information
Act and received the file in May 2011.
On August 17, 2011, the IJ denied Rahiman’s motion to reopen. The IJ
noted that, although Rahiman claimed he did not receive notice of the March 13,
2002 removal hearing due to his counsel’s ineffective assistance, his counsel
appeared on his behalf at that 2002 hearing. The IJ also found, based on
Rahiman’s sworn statement, that Rahiman waited nine years after learning of the
removal order to file the motion to reopen. The IJ concluded that Rahiman’s
motion to reopen was time-barred because it was filed more than 180 days after
entry of the removal order and that ineffective assistance did not equitably toll the
180-day deadline. The IJ alternatively concluded that, even if equitable tolling
applied, Rahiman had not acted with due diligence.
Rahiman appealed to the BIA arguing, inter alia, that the IJ misread
Rahiman’s sworn statement and that Rahiman did not find out about the in
absentia removal order until some time after the March 13, 2002 hearing, as
6
follows:
Respondent is not saying that he found out on March 13, 2002 he wasordered deported. He is saying he found out that his order of removalwas entered on that day. He also is not saying that he found out abouthis removal at the time he was calling his lawyer back in 2002. Ratherhe 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 phonewas disconnected, and it is roughly around that exact time that he laterlearned he was ordered removed.
Rahiman contended that he was diligent because he sought help from the
immigration clinic in 2009. However, Rahiman did not say when he learned of the
March 13, 2002 removal order or why he waited until 2009 to seek legal
assistance.
The BIA dismissed Rahiman’s appeal. The BIA determined that Rahiman
received proper notice of the March 13, 2002 hearing because his counsel actually
received notice of the hearing. To the extent Rahiman claimed exceptional
circumstances, his motion to reopen was time-barred and the 180-day deadline
could not be equitably tolled even in the case of ineffective assistance of counsel.
Alternatively, the BIA concluded that Rahiman’s lack of due diligence foreclosed
the application of equitable tolling. Even though Rahiman had notice that the INS
sought to remove him, he failed to take any actions to inquire into the status of his
proceedings from 2002 until he sought legal advice in May 2009 and he failed to
7
offer any explanation for that lengthy wait. The BIA also declined to reopen
Rahiman’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 alien
removed in absentia if the government proves by clear, unequivocal and
convincing evidence that the alien received proper notice and is removable. See
INA § 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 in
absentia removal order: (1) within 180 days after the entry of the in absentia
removal order if he shows “that the failure to appear was because of exceptional
circumstances”; or (2) “at any time” if he shows that he did not receive proper
notice 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 and
exceptional circumstances. 1
We review the denial of a motion to reopen for abuse of discretion. Anin v. Reno, 1881
F.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
A. Notice of March 13, 2002 Hearing
Rahiman argues that the BIA violated his due process rights when it found
that he received proper notice of the asylum hearing despite his attorney’s
ineffective assistance.
In removal proceedings, the IJ is required to provide an alien notice
regarding 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 or
service 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 process
is satisfied if notice is accorded in a manner reasonably calculated to ensure that
notice reaches the alien,” and service by mail to an alien’s counsel of record
satisfies 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 not
required 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 at
INA § 242B(c), 8 U.S.C. § 1252b(c) (1994)).
Here, the INS mailed notice of the March 13, 2002 hearing to Rahiman’s
v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
9
counsel of record. That notice contained information as to the date, time and place
of 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 ensure
it reached Rahiman. Rahiman’s motion to reopen thus did not show that he failed
to receive proper notice of the March 13, 2002 hearing. Accordingly, the BIA did
not violate Rahiman’s due process rights, much less abuse its discretion, when it
denied 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 ineffective
assistance. Under some circumstances, an attorney’s ineffective assistance can
constitute “exceptional circumstances.” See, e.g., Montano Cisneros v. U.S. Att’y
Gen., 514 F.3d 1224, 1226 (11th Cir. 2008) (involving aliens who failed to appear
because 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 order
based on exceptional circumstances must be filed “within 180 days after the date
of 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 be
read literally by federal courts,” the INA’s time limitations with respect to motions
10
to reopen, although “inherently . . . arbitrary and harsh,” are “jurisdictional and
mandatory.” 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 be
equitably 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 ineffective
assistance of counsel was not filed until April 26, 2011, nine years after the IJ’s
March 13, 2002 removal order. Thus, to the extent Rahiman’s motion to reopen
was based on exceptional circumstances, Rahiman failed to timely file it within the
180-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 due
to his counsel’s ineffective assistance. Rahiman points out that other circuits have
determined that the INA’s filing deadlines for motions to reopen are akin to
statutes 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, 232
F.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
equitable tolling of filing deadlines for motions to reopen based on ineffective
assistance of counsel. Accordingly, the BIA did not abuse its discretion when it
concluded that Rahiman’s motion to reopen and rescind his in absentia removal
order based on exceptional circumstances was time-barred.
In any event, we agree with the BIA that, even if the 180-day deadline could
be equitably tolled, the circumstances in Rahiman’s case would not warrant such
equitable relief because Rahiman failed to exercise due diligence. By his own
admission, Rahiman knew of the in absentia removal order before be decided to
pursue 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 action
until 2009, when he sought legal assistance from an immigration clinic, and he did
not file his motion to reopen until 2011.
Finally, Rahiman contends the BIA abused its discretion when it did not
reopen his removal proceedings sua sponte pursuant to 8 C.F.R. § 1003.2(a). We
lack subject-matter jurisdiction to review such a claim. See Lenis v. U.S. Att’y
Gen., 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 federal
courts may review the Board’s decision not to reopen removal proceedings sua
12
sponte. Courts of Appeals have held that such decisions are unreviewable because
sua 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 failure
to sua sponte reopen his removal proceedings.
DENIED IN PART, DISMISSED IN PART.
13
11-3162-agDevsani v. Holder
BIAMontante, IJ
A074 857 273/274
UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDERFILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OFAPPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDERIN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR ANELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARYORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals1for the Second Circuit, held at the Daniel Patrick Moynihan2United States Courthouse, 500 Pearl Street, in the City of3New York, on the 21st day of June, two thousand twelve.4
5PRESENT:6
GUIDO CALABRESI,7REENA RAGGI,8DENNY CHIN,9
Circuit Judges. 1011
___________________________________1213
PANKAJ PRAVIN DEVSANI, 14ASMITHA PANKAJ DEVSANI,15
Petitioners, 1617
v. 11-3162-ag18NAC 19
ERIC H. HOLDER, JR., UNITED STATES 20ATTORNEY GENERAL,21
Respondent.22_____________________________________23
24FOR PETITIONERS: Judy Resnick, Esq., Far Rockaway,25
New York.2627
FOR RESPONDENT: Tony West, Assistant Attorney28General; Melissa Neiman-Kelting,29Senior Litigation Counsel; Kelly J.30Walls, Trial Attorney, Office of31Immigration Litigation, Civil32Division, United States Department33of Justice, Washington, D.C.34
2
UPON DUE CONSIDERATION of this petition for review of a1
Board of Immigration Appeals (“BIA”) decision, it is hereby2
ORDERED, ADJUDGED, AND DECREED that the petition for review3
is DENIED.4
Petitioners Pankaj Pravin Devsani and Asmitha Pankaj5
Devsani, husband and wife and natives and citizens of India, 6
seek review of a July 6, 2011 order of the BIA affirming the7
July 14, 2010 decision of Immigration Judge (“IJ”) Philip J.8
Montante, Jr. denying their motions to rescind in absentia9
removal orders and reopen their proceedings. In re Pankaj10
Pravin Devsani, Nos. A074 857 273/274 (B.I.A. July 6, 2011),11
aff’g Nos. A074 857 273/274 (Immig. Ct. Buffalo, N.Y. July12
14, 2010). We assume the parties’ familiarity with the13
underlying facts and procedural history of this case.14
Under the circumstances of this case, we have reviewed15
the decision of the IJ as supplemented by the BIA. See Yan16
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We17
review the agency’s denial of motions to rescind or reopen18
for abuse of discretion. See Alrefae v. Chertoff, 471 F.3d19
353, 357 (2d Cir. 2006).20
A deportation order entered in absentia may be21
rescinded if the alien shows he did not receive notice of22
the removal hearing. See 8 U.S.C. § 1229a(b)(5)(C)(ii);23
3
accord Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir. 2006). 1
In this case, the IJ reasonably determined that the2
petitioners received notice of their hearing because (1)3
they received written Notices to Appear specifying the4
hearing date, which they signed to acknowledge that they5
received oral notice of their contents; and (2) reports6
written by the border patrol agents who arrested the7
petitioners indicated that the agents had been able to8
communicate with them in English and Hindi. The petitioners9
had no right to receive notice in Gujarati, which they10
asserted was their “best language,” Pet’rs Br. 14, since11
they received adequate oral and written notice. See Lopes,12
468 F.3d at 85 (noting that the governing statute does not13
require that an alien receive notice in any particular14
language).15
Because petitioners did not deny that they received16
notice of their hearing’s date and time, but only complain17
of the language in which it was communicated, petitioners18
failed to demonstrate that they did not receive notice, see19
8 U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R.20
§ 1003.23(b)(4)(iii)(a)(1), no evidentiary hearing was21
necessary to resolve disputed issues of fact. Moreover, the22
4
BIA applied the proper standard of review on appeal,1
reviewing the IJ’s factual findings for clear error and its2
legal conclusions de novo. See 8 C.F.R. § 1003.1(d)(3)(i),3
(ii). In sum, the agency did not abuse its discretion, or4
deprive the petitioners of due process, in denying their5
motions to rescind because they received notice of their6
removal hearing.7
Insofar as the petitioners sought reopening based on8
their desire to apply for adjustment of status, the agency9
did not abuse its discretion in denying their motion to10
reopen as untimely. Generally, motions to reopen must be11
filed within 90 days of a removal order. See 8 U.S.C.12
§ 1229a(c)(7)(C)(i). Petitioners’ motions were filed over13
ten years after their in absentia removal orders, and they14
did not present circumstances that would excuse their motion15
from that time limit to the agency. We do not have16
jurisdiction to review the BIA’s discretionary decision not17
to reopen proceedings sua sponte. See Ali v. Gonzales, 44818
F.3d 515, 518 (2d Cir. 2006). 19
Finally, the agency’s decision in this case did not20
deprive the petitioners of due process. Petitioners21
received “a full and fair opportunity to present [their]22
5
claims” by presenting evidence with their motions, thus1
eliminating their procedural due process claim. See Burger2
v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007). Nor were3
petitioners’ substantive due process rights violated. The4
agency’s decision to deny their motion to reopen as untimely5
and to decline to reopen sua sponte was not “so egregious,6
so outrageous, that it may fairly be said to shock the7
contemporary conscience.” See Bolmer v. Oliveira, 594 F.3d8
134, 142 (2d Cir. 2010) (quoting County of Sacramento v.9
Lewis, 523 U.S. 833, 847 n.8 (1998)).10
For the foregoing reasons, the petition for review is11
DENIED. As we have completed our review, any stay of12
removal that the Court previously granted in this petition13
is VACATED, and any pending motion for a stay of removal in14
this petition is DISMISSED as moot. Any pending request for15
oral argument in this petition is DENIED in accordance with16
Federal Rule of Appellate Procedure 34(a)(2), and Second17
Circuit Local Rule 34.1(b).18
FOR THE COURT: 19Catherine O’Hagan Wolfe, Clerk20
2122
This disposition is not appropriate for publication and is not precedent *
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision **
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR SAMUEL LARA-GARCIA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-73195
Agency No. A072-307-959
MEMORANDUM*
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 for
review of an order of the Board of Immigration Appeals (“BIA”) denying his
motion to reopen deportation proceedings. Our jurisdiction is governed by
8 U.S.C. § 1252. Reviewing for abuse of discretion the BIA’s denial of a motion
FILEDSEP 24 2012
MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS
10-731952
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 to
reopen as untimely because the motion was filed approximately 13 years after
issuance 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 warrant
equitable tolling of the filing deadline, where his motion did not state when he had
definitively learned of the alleged ineffective assistance of his former attorney, see
Avagyan, 646 F.3d at 679 (measuring the end of the tolling period from “when
petitioner definitively learns of the harm resulting from counsel’s deficiency”).
We lack jurisdiction to review Lara-Garcia’s due process challenge to the
BIA’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 to
review legal claims not presented in an alien’s administrative proceedings before
the BIA.”).
Finally, because our determination regarding the untimeliness of Lara-
Garcia’s motion to reopen is dispositive of his petition for review, we decline to
consider his assertion that he remains prima facie eligible for relief from removal.
10-731953
See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006) (declining to
reach nondispositive challenges to a BIA order).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.