11-3404
Ramsood v. Holder
BIA
A029 509 119
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 August, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 OMADQT RAMSOOD, AKA OMADAT RAMSOOD,
14 Petitioner,
15
16 v. 11-3404
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Naresh M. Gehi, Forest Hills, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Linda S. Wernery,
28 Assistant Director; Janice K.
29 Redfern, Senior Litigation Counsel,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 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 Petitioner Omadqt Ramsood, a native and citizen of
6 Guyana, seeks review of an August 4, 2011, order of the BIA
7 denying his motion to reopen. In re Omadqt Ramsood a.k.a.
8 Omadat Ramsood, No. A029 509 119 (B.I.A. Aug. 4, 2011). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history in this case.
11 We have reviewed Ramsood’s motion to reopen/rescind for
12 abuse of discretion. See Alrefae v. Chertoff, 471 F.3d 353,
13 357 (2d Cir. 2006). Ramsood argues that his in absentia
14 order of exclusion1 should be rescinded due to the
15 ineffective assistance of his prior counsel. Under the
16 former Immigration and Nationality Act governing in absentia
17 exclusion proceedings, with respect to “[a]ny alien [who]
18 has been given a reasonable opportunity to be present at
1
Ramsood’s argument that he should be in deportation
rather than exclusion proceedings is erroneous because,
although he initially entered on a visitor visa, he departed
and upon return was paroled into the United States. See
Cruz-Miguel v. Holder, 650 F.3d 189, 196-97 (2d Cir. 2011)
(an alien paroled into the U.S. for the purpose of an
exclusion proceeding has not been properly admitted to the
U.S. and has thus not effectuated an “entry”).
2
1 a[n] [exclusion] proceeding . . . and without reasonable
2 cause fails or refuses to attend[,] . . . the special
3 inquiry officer may proceed to a determination in like
4 manner as if the alien were present.” 8 U.S.C. § 1252(b)
5 (1992). An alien ordered excluded in absentia may have the
6 order rescinded or obtain reopening if he demonstrates
7 “reasonable cause” for failing to appear, supported by
8 affidavits or other evidence. See 8 C.F.R.
9 § 1003.23(b)(4)(iii)(B).
10 Ramsood argues that his alleged lack of notice of the
11 hearing and the ineffective assistance of his prior counsel
12 constitute “reasonable cause” for his failure to appear.
13 Lack of notice of a hearing may constitute “reasonable
14 cause” for failure to appear at a hearing. Cf. 8 C.F.R.
15 § 1003.23(b)(4)(iii)(A) (permitting rescission of an in
16 absentia deportation order at any time if the alien did not
17 receive notice of his hearing). To the extent that Ramsood
18 argues that he did not receive the initial notice placing
19 him in proceedings because only his attorney was notified,
20 the record shows that Ramsood was personally served with
21 that notice. To the extent he asserts that he did not
22 receive notice of the date of the hearing, the record shows
3
1 that the notice was sent to him at the address he provided.
2 Ramsood also argues that his failure to appear was due
3 to the ineffective assistance of his counsel who told him
4 that he need not attend the hearing and who failed to notify
5 him of the consequences of his failure to attend. The BIA
6 did not abuse its discretion in declining to rescind the in
7 absentia order and reopen proceedings on the ground that
8 Ramsood failed to act with due diligence. Although Ramsood
9 was in exclusion proceedings, and thus the usual 90-day time
10 limit on motions to reopen did not apply, see 8 C.F.R.
11 § 1003.23(b)(4)(iii)(B); In re N-B-, 22 I. & N. 590, 591-92
12 (BIA 1999), the BIA was not foreclosed from denying the
13 motion for failure to exercise due diligence because the
14 agency’s decision regarding whether to rescind an in
15 absentia exclusion order pursuant to 8 C.F.R.
16 § 1003.23(b)(4)(iii)(B) is discretionary. Accordingly, the
17 requirement that aliens exercise due diligence in the
18 equitable tolling context, see Iavorski v. INS, 232 F.3d
19 124, 134 (2d Cir. 2000), applies with equal force in this
20 situation and the agency’s finding that Ramsood failed to
21 exercise due diligence in rescinding his in absentia
22 exclusion order was not an abuse of discretion because
4
1 Ramsood waited 19 years to file a motion to reopen, had
2 several pending petitions before the United States
3 Citizenship and Immigration Services (“USCIS”), and should
4 have been aware of the consequences of the in absentia
5 order. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.
6 2007) (providing that the “petitioner bears the burden of
7 proving that he has exercised due diligence” and citing
8 several cases in which we have held that “a petitioner who
9 waits two years or longer to take steps to reopen a
10 proceeding has failed to demonstrate due diligence”).
11 Finally, to the extent that Ramsood argues that the
12 agency was required to reopen to adjudicate his I-130 or
13 continue proceedings to allow adjudication by the USCIS, he
14 challenges the BIA’s decision whether to exercise its sua
15 sponte authority. We lack jurisdiction to review that
16 decision. Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.
17 2006).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
23 oral argument in this petition is DENIED in accordance with
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6