19-147
Rodas-Rosales v. Garland
BIA
A202 126 402/403
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 TO 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 Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 9th day of March, two thousand twenty-two.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PIERRE N. LEVAL,
9 ROSEMARY S. POOLER ,
10 Circuit Judges.
11 _____________________________________
12
13 GERSON ELISEO RODAS-ROSALES,
14 M.J.R.G.,
15 Petitioners,
16
17 v. 19-147
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Jessica Swenson, Esq., Washington
25 Square Legal Services, Inc.,
26 Immigrant Rights Clinic, New
27 York, NY.
28
29 FOR RESPONDENT: Joseph H. Hunt, Assistant
30 Attorney General; Shelley R. Goad,
1 Assistant Director; Russell J.E.
2 Verby, Senior Litigation Counsel,
3 Office of Immigration Litigation,
4 United States Department of
5 Justice, Washington, DC.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioners Gerson Eliseo Rodas-Rosales and M.J.R.G.,
12 natives and citizens of El Salvador, seek review of a December
13 20, 2018, decision of the BIA denying their motion to
14 reconsider and terminate removal proceedings. In re Gerson
15 Eliseo Rodas-Rosales, M.J.R.G., Nos. A202 126 402/403 (B.I.A.
16 Dec. 20, 2018). We assume the parties’ familiarity with the
17 underlying facts and procedural history.
18 We review the BIA’s denial of reconsideration for abuse
19 of discretion. See Jin Ming Liu v. Gonzales, 439 F.3d 109,
20 111 (2d Cir. 2006). The BIA did not abuse its discretion in
21 denying Petitioners’ motion to reconsider as untimely because
22 it was filed four months after the BIA’s denial of reopening
23 and one year after the underlying removal order. See
24 8 U.S.C. § 1229a(c)(6)(B) (providing 30-day deadline for
2
1 motions to reconsider).
2 The BIA also did not err in rejecting Petitioners’
3 argument that the time limit should be excused and their
4 removal proceedings terminated in light of Pereira v.
5 Sessions, 138 S. Ct. 2105 (2018). Petitioners argued that
6 their notices to appear (“NTAs”) did not include a hearing
7 date and time and thus were insufficient to commence removal
8 proceedings. We have held, however, “that an NTA that omits
9 information regarding the time and date of the initial removal
10 hearing is nevertheless adequate to vest jurisdiction in the
11 Immigration Court, at least so long as a notice of hearing
12 specifying this information is later sent to the alien.”
13 Banegas Gomez v. Barr, 922 F.3d 101, 112 (2d Cir. 2019); see
14 also Chery v. Garland, Nos. 18-1036, 18-1835(L), 19-223(Con),
15 --- F.4th ---, 2021 WL 4805217, at *5 (2d Cir. Oct. 15, 2021)
16 (holding that Banegas Gomez remains good law after the Supreme
17 Court’s decision in Niz-Chavez v. Garland, 141 S. Ct. 1474
18 (2021)). Although Petitioners’ NTAs did not specify the date
19 and time of their initial hearing, they unquestionably
20 received notice of their hearings at which they appeared.
21 Accordingly, their argument that their NTAs were insufficient
3
1 to commence removal proceedings under Pereira is foreclosed
2 by Banegas Gomez, 922 F.3d at 110, 112.
3 For the foregoing reasons, the petition for review is
4 DENIED. All pending motions and applications are DENIED and
5 stays VACATED.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe,
8 Clerk of Court
4