Patel v. Holder

09-4959-ag Patel v. Holder BIA Rocco, IJ A074 855 443 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 20 th day of January, two thousand eleven. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 RICHARD C. WESLEY, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 SANJAY MANUBHI PATEL, 14 Petitioner, 15 16 v. 09-4959-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: James J. Orlow, Philadelphia, 24 Pennsylvania. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Thomas B. Fatouros, Senior 28 Litigation Counsel; Karen Y. 29 Stewart, Attorney, Office of 30 Immigration Litigation, Civil 1 Division, United States Department 2 of Justice, Washington, D.C. 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 decision of the Board of Immigration Appeals (“BIA”), it is 6 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 7 review is DENIED. 8 Sanjay Manubhi Patel, a native and citizen of India, 9 seeks review of a November 10, 2009, order of the BIA 10 affirming the September 29, 2009, order of Immigration Judge 11 (“IJ”) Michael Rocco denying his motion to reopen. In re 12 Sanjay Manubhi Patel, No. A074 855 443 (B.I.A. Nov. 10, 2009), 13 aff’g No. 074 855 443 (Immig. Ct. Buffalo Sept. 29, 2009). We 14 assume the parties’ familiarity with the underlying facts and 15 procedural history of this case. 16 Motions to reopen in absentia exclusion orders are 17 governed by different rules depending on whether the movant 18 seeks to rescind the order or present new evidence. See Song 19 Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-, 20 22 I. & N. Dec. 349, 353-55 (BIA 1998) (en banc). 21 Accordingly, when, as here, an alien files a motion that seeks 22 both rescission of an in absentia exclusion order, as well as 23 reopening of proceedings to apply for new relief, we treat the 24 BIA’s decision as having denied distinct motions to rescind 25 and to reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d 2 1 Cir. 2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152 2 n.1 (2d Cir. 2006). We review the agency’s denials of motions 3 to rescind and reopen for abuse of discretion. See Alrefae, 4 471 F.3d at 357. Under the circumstances of this case, we 5 review the decision of the IJ as supplemented by the BIA. See 6 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 7 Patel’s arguments that he did not receive proper notice 8 of his hearing and that his due process right was violated 9 because he was not provided with a translation of the Notice 10 to Appear are unavailing. A Notice to Appear is not defective 11 merely because it fails to advise an alien in his native 12 language that an in absentia order could be entered against 13 him if he fails to appear. See Lopes v. Gonzales, 468 F.3d 14 81, 84-85 (2d Cir. 2006) (rejecting a Portugese alien’s claim 15 that “the notices to appear were defective because they did 16 not advise him in his native Portuguese that an in absentia 17 order could be entered against him if he failed to appear” 18 because the relevant statute does not require that notice be 19 provided in any particular language); 8 U.S.C. § 1229(a); 8 20 C.F.R. § 1003.26. Accordingly, the agency did not abuse its 21 discretion in denying Patel’s motion to rescind. 22 To the extent Patel was requesting reopening of 23 proceedings to apply for relief from removal based on new 3 1 evidence, his motion was untimely and he did not establish 2 that it met any exceptions to the filing deadlines. 8 C.F.R. 3 § 1003.23(b); see also Matter of Yauri, 25 I. & N. Dec. 103, 4 105 (BIA 2009) (emphasizing “that untimely motions to reopen 5 to pursue an application for adjustment of status . . . do not 6 fall within any of the statutory or regulatory exceptions to 7 the time limits for motions to reopen before the Board”). 8 Thus, Patel was necessarily invoking the BIA’s authority to 9 reopen his proceedings sua sponte. See Mahmood v. Holder, 570 10 F.3d 466, 469 (2d Cir. 2009) (“Because Mahmood’s untimely 11 motion to reopen was not excused by any regulatory exception, 12 her motion to reopen could only be considered upon exercise of 13 the Agency’s sua sponte authority”); 8 C.F.R. § 1003.2(a). 14 The BIA’s determination as to whether it will exercise its sua 15 sponte authority is entirely discretionary and thus beyond the 16 scope of our jurisdiction. See Ali v. Gonzales, 448 F.3d 515, 17 517 (2d Cir. 2006). Because Patel’s motion was untimely and 18 he did not establish that his motion met any exceptions to the 19 filing deadlines, there is no error in the BIA’s finding and 20 we lack jurisdiction to review the BIA’s decision to decline 21 to sua sponte reopen his proceedings. See Mahmood, 570 F.3d 22 at 469; see also Ali, 448 F.3d at 517; 8 C.F.R. 23 § 1003.23(b). 4 1 Finally, Patel’s argument that the agency violated the 2 notice requirements of the APA is frivolous because the 3 Supreme Court has held that the APA does not apply to 4 immigration proceedings. See Ardestanti v. INS, 502 U.S. 129, 5 133-34 (1991) (“the INA ‘expressly supersedes’ the hearing 6 provisions of the APA”) (citing Marcello v. Bonds, 349 U.S. 7 302, 310 (1955)). 8 For the foregoing reasons, the petition for review 9 is DENIED. As we have completed our review, any stay of 10 removal that the Court previously granted in this petition is 11 VACATED, and any pending motion for a stay of removal in this 12 petition is DISMISSED as moot. Any pending request for oral 13 argument in this petition is DENIED in accordance with Federal 14 Rule of Appellate Procedure 34(a)(2), and Second Circuit Local 15 Rule 34.1(b). 16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19 20 5