Devsani v. Holder

11-3162-ag 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 6 PRESENT: 7 GUIDO CALABRESI, 8 REENA RAGGI, 9 DENNY CHIN, 10 Circuit Judges. 11 12 ___________________________________ 13 14 PANKAJ PRAVIN DEVSANI, 15 ASMITHA PANKAJ DEVSANI, 16 Petitioners, 17 18 v. 11-3162-ag 19 NAC 20 ERIC H. HOLDER, JR., UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONERS: Judy Resnick, Esq., Far Rockaway, 26 New York. 27 28 FOR RESPONDENT: Tony West, Assistant Attorney 29 General; Melissa Neiman-Kelting, 30 Senior Litigation Counsel; Kelly J. 31 Walls, Trial Attorney, Office of 32 Immigration Litigation, Civil 33 Division, United States Department 34 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 absentia 10 removal orders and reopen their proceedings. In re Pankaj 11 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. July 13 14, 2010). We assume the parties’ familiarity with the 14 underlying facts and procedural history of this case. 15 Under the circumstances of this case, we have reviewed 16 the decision of the IJ as supplemented by the BIA. See Yan 17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We 18 review the agency’s denial of motions to rescind or reopen 19 for abuse of discretion. See Alrefae v. Chertoff, 471 F.3d 20 353, 357 (2d Cir. 2006). 21 A deportation order entered in absentia may be 22 rescinded if the alien shows he did not receive notice of 23 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 petitioners 10 had no right to receive notice in Gujarati, which they 11 asserted was their “best language,” Pet’rs Br. 14, since 12 they received adequate oral and written notice. See Lopes, 13 468 F.3d at 85 (noting that the governing statute does not 14 require that an alien receive notice in any particular 15 language). 16 Because petitioners did not deny that they received 17 notice of their hearing’s date and time, but only complain 18 of the language in which it was communicated, petitioners 19 failed to demonstrate that they did not receive notice, see 20 8 U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R. 21 § 1003.23(b)(4)(iii)(a)(1), no evidentiary hearing was 22 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 agency 10 did not abuse its discretion in denying their motion to 11 reopen as untimely. Generally, motions to reopen must be 12 filed within 90 days of a removal order. See 8 U.S.C. 13 § 1229a(c)(7)(C)(i). Petitioners’ motions were filed over 14 ten years after their in absentia removal orders, and they 15 did not present circumstances that would excuse their motion 16 from that time limit to the agency. We do not have 17 jurisdiction to review the BIA’s discretionary decision not 18 to reopen proceedings sua sponte. See Ali v. Gonzales, 448 19 F.3d 515, 518 (2d Cir. 2006). 20 Finally, the agency’s decision in this case did not 21 deprive the petitioners of due process. Petitioners 22 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 is 12 DENIED. As we have completed our review, any stay of 13 removal that the Court previously granted in this petition 14 is VACATED, and any pending motion for a stay of removal in 15 this petition is DISMISSED as moot. Any pending request for 16 oral argument in this petition is DENIED in accordance with 17 Federal Rule of Appellate Procedure 34(a)(2), and Second 18 Circuit Local Rule 34.1(b). 19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22 5