Case: 19-60475 Document: 00515765004 Page: 1 Date Filed: 03/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-60475 March 3, 2021
Summary Calendar Lyle W. Cayce
Clerk
Vishal Kumar Kaniyalal Patel,
Petitioner,
versus
Robert M. Wilkinson, Acting U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 892 528
Before Jones, Barksdale, and Stewart, Circuit Judges.
Per Curiam:*
Vishal Kumar Kaniyalal Patel, a native and citizen of India, petitions
for review of an order by the Board of Immigration Appeals’ (BIA) denying
his third motion to reopen and rescind his 2011 in absentia order of removal.
Patel claims: he is entitled to reopen his order of removal because he did not
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-60475
receive proper notice of his master hearing; his motion is timely because he
is entitled to equitable tolling; the immigration judge (IJ) lacked jurisdiction
to order him removed; the BIA erred in declining to reopen his proceeding
because his wife is eligible for a U visa and for a waiver of inadmissibility; the
BIA erred in failing to address whether the changed country conditions
warrant granting the motion to reopen; and his due-process rights were
violated.
The denial of a motion to reopen is understandably reviewed under a
highly deferential abuse-of-discretion standard. Lowe v. Sessions, 872 F.3d
713, 715 (5th Cir. 2017). An in absentia order of removal may be rescinded
“upon a motion to reopen filed at any time if the alien demonstrates that the
alien did not receive notice” of the hearing. 8 U.S.C. § 1229a(b)(5)(C)(ii).
Patel received proper notice of his master hearing because the record
shows a notice of hearing was mailed to his attorney of record, and the
attorney acknowledged receipt. See Rodriguez-Manzano v. Holder, 666 F.3d
948, 953 n.6 (5th Cir. 2012) (“[P]roperly notifying [petitioner’s] former
counsel of the time, date, and location of the hearing constituted adequate
notice to [petitioner]”). Although Patel asserts service on his attorney was
improper because that attorney’s representation was limited to bond
proceedings only, the record instead demonstrates his attorney was retained
to also represent Patel in removal proceedings. Patel has not provided any
evidence to the contrary.
The BIA also did not abuse its discretion in determining Patel received
proper notice of his master hearing despite the notice to appear failing to
specify the time and date of an initial hearing. A notice to appear is not
defective on that basis. Pierre-Paul v. Barr, 930 F.3d 684, 689 (5th Cir. 2019),
cert. denied, 140 S. Ct. 2718 (2020). In any event, even if the notice was
defective, any defect was cured by the subsequent mailing of the notice of
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hearing, which contained a specific time and date. See id. at 690. Finally, the
BIA did not abuse its discretion by holding jurisdiction properly vested with
the IJ because “a notice to appear is sufficient to commence proceedings
even if it does not include the time, date, or place of the initial hearing”. Id.
at 693.
The BIA did not abuse its discretion in determining Patel was not
entitled to equitable tolling. An alien may receive equitable tolling if he
shows: “he has been pursuing his rights diligently, and . . . some
extraordinary circumstance stood in his way and prevented timely filing”.
Mejia v. Barr, 952 F.3d 255, 259 (5th Cir. 2020) (quoting Lugo-Resendez v.
Lynch, 831 F.3d 337, 344 (5th Cir. 2016)). Ineffective assistance of counsel
(IAC) may constitute an extraordinary circumstance justifying equitable
tolling of the deadline for seeking statutory reopening. Diaz v. Sessions, 894
F.3d 222, 226–27 (5th Cir. 2018). But, Patel has failed to comply with the
requirements for raising an IAC claim in immigration proceedings because
he failed to: provide an affidavit stating the terms of his attorney-client
agreement with his attorney of record; provide evidence he informed that
attorney of the allegations; and file a grievance or offer an explanation as to
why a grievance against that attorney was not filed. See Rodriguez-Manzano,
666 F.3d at 953. Given Patel’s failure to comply with the requirements for
raising an IAC claim, he cannot demonstrate extraordinary circumstances
prevented him from timely filing a motion to reopen.
The BIA did not abuse its discretion in determining Patel was not
entitled to reopening based on changed country conditions. A motion to
reopen based on a request for asylum, withholding of removal, or protection
under the Convention Against Torture may be filed at any time if the alien
presents evidence of changed country conditions. 8 U.S.C.
§ 1229a(c)(7)(C)(ii). In determining whether there has been a material
change in country conditions warranting granting a motion to reopen, the
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No. 19-60475
BIA compares evidence of country conditions submitted with the motion to
reopen with the conditions that existed at the time of removal. Mejia v.
Whitaker, 913 F.3d 482, 489 (5th Cir. 2019). Patel has failed to meaningfully
compare the conditions in India at the time of his removal hearing to the
conditions there when he filed his motion to reopen. Accordingly, he failed
to present material evidence of changed country conditions warranting
consideration under his motion. See Ramos-Lopez v. Lynch, 823 F.3d 1024,
1026 (5th Cir. 2016) (requiring alien to submit information of changed
country conditions and meaningfully compare the differences in conditions
at the time of removal hearing and time of motion to reopen).
Although Patel claims the BIA erred in not granting the motion to
reopen because the BIA has the authority to grant waivers of inadmissibility
alongside a U visa, we lack jurisdiction to review the BIA’s decision not to
exercise its discretionary authority to reopen a case sua sponte. See Mejia, 913
F.3d at 490. This claim is dismissed for lack of jurisdiction.
Finally, despite Patel’s assertions to the contrary, we have repeatedly
rejected due-process claims in the context of motions to reopen based on a
lack of notice because aliens have no liberty interest in purely discretionary
reopening proceedings. See Ramos-Portillo v. Barr, 919 F.3d 955, 963 (5th Cir.
2019) (“[T]he failure to receive relief that is purely discretionary in nature
does not amount to a deprivation of a liberty interest” (citation omitted)).
DISMISSED in part; DENIED in part.
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