Filed: Feb. 07, 2011
Latest Update: Feb. 21, 2020
Summary: 09-4996-ag Bhela v. Holder BIA A073 669 376 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 “S
Summary: 09-4996-ag Bhela v. Holder BIA A073 669 376 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 “SU..
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09-4996-ag
Bhela v. Holder
BIA
A073 669 376
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 7th day of February, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _________________________________________
12
13 UJJALPAL SINGH BHELA,
14 Petitioner,
15
16 v. 09-4996-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Viney K. Gupta, Orange, California.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Mary Jane Candaux,
27 Assistant Director; Kiley L. Kane,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Ujjalpal Singh Bhela, a native and citizen
6 of India, seeks review of the November 17, 2009, decision of
7 the BIA denying his motion to reopen. In re Ujjalpal Singh
8 Bhela, No. A073 669 376 (B.I.A. Nov. 17, 2009). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history of the case.
11 The majority of the issues raised by Bhela are not
12 properly before us. Bhela asks us to vacate his in absentia
13 removal order from 1999. Under 8 U.S.C. § 1252(d)(1), we
14 “may review a final order of removal only if . . . the alien
15 has exhausted all administrative remedies available to the
16 alien as of right.” Bhela failed to challenge the IJ’s in
17 absentia removal order, or the IJ’s denial of his motion to
18 reopen and rescind that order, in his 2009 motion to reopen
19 with the BIA. Moreover, Bhela did not appeal either the
20 1999 IJ decision entering an in absentia removal order
21 against him, or the IJ’s denial of his motion to reopen
22 proceedings in order to rescind that in absentia order.
23 Accordingly, the merits of Bhela’s in absentia removal order
2
1 are not properly before us, and, as a statutory matter, we
2 lack jurisdiction to review that order. See 8 U.S.C.
3 § 1252(b)(1) (requiring a petition for review to be filed
4 within thirty days of the final order of removal); Stone v.
5 INS, 514 U.S. 386, 394 (1995); Malvoisin v. INS,
268 F.3d
6 74, 75 (2d Cir. 2001).
7 Bhela also claims, for the first time in his lengthy
8 immigration proceedings, ineffective assistance by his
9 former counsel, who represented him in the immigration
10 proceedings that commenced in 1997. In addition to the
11 statutory requirement that a petitioner exhaust the
12 categories of relief he seeks, 8 U.S.C. § 1252(d)(1), a
13 petitioner must also raise to the BIA the specific issue he
14 later raises to this Court. See Foster v. INS,
376 F.3d 75,
15 78 (2d Cir. 2004). While not jurisdictional, this
16 judicially imposed exhaustion requirement is mandatory. Lin
17 Zhong v. U.S. Dep’t of Justice,
480 F.3d 104, 119-20 (2d
18 Cir. 2007). Bhela failed to raise ineffective assistance of
19 counsel in either his initial appeal to the BIA, or in his
20 2009 motion to reopen with the BIA, and thus, we decline to
21 consider this unexhausted issue.
22 Bhela further argues that the BIA abused its discretion
23 in denying his motion to reopen. Because Bhela’s motion to
3
1 reopen was untimely, and in his motion, he alleged neither
2 ineffective assistance of counsel, which may have tolled the
3 time period, nor changed country conditions, which may
4 constitute an exception to the time limit, the BIA construed
5 the motion as a request for it to exercise its sua sponte
6 authority to reopen proceedings at any time. See 8 C.F.R.
7 § 1003.2(a). The BIA then found that it lacked authority to
8 reopen proceedings because Bhela had self-executed his
9 outstanding in absentia removal order. The regulations
10 provide that a motion to reopen “shall not be made by . . .
11 [an alien] subsequent to his or her departure from the
12 United States.” 8 C.F.R. § 1003.2(d). The BIA has
13 interpreted this provision as depriving it of jurisdiction
14 to exercise its sua sponte reopening authority after an
15 alien has departed the United States, and we have deferred
16 to that interpretation. See Xue Yong Zhang v. Holder, 617
17 F.3d 650, 660-61 (2d Cir. 2010); In re Armendarez-Mendez, 24
18 I. & N. Dec. 646 (B.I.A. 2008).
19 In concluding that it lacked jurisdiction to reopen,
20 the BIA failed to consider either Bhela’s pending self-
21 petition as the abused spouse of a United States citizen, or
22 the special rule governing motions to reopen by those
23 seeking relief as the battered spouse of a United States
4
1 citizen. See 8 U.S.C. § 1229a(c)(7)(C)(iv). However, any
2 remand would be futile, because we can “confidently predict”
3 that even if the agency were to consider Bhela’s motion as
4 governed by the special rule, it would deny the motion. See
5 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d
6 Cir. 2006) (holding that remand is futile “when the
7 reviewing court can ‘confidently predict’ that the agency
8 would reach the same decision absent the errors that were
9 made” (quoting Cao He Lin v. U.S. Dep’t of Justice,
428 F.3d
10 391, 395 (2d Cir. 2005)). The statute governing a motion to
11 reopen by an alien seeking relief as the abused spouse of a
12 United States citizen provides that such a motion to reopen
13 must be filed within one year of the final administrative
14 order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(iv)(III).
15 Bhela was ordered removed in absentia in 1999, and his
16 motion to the IJ to reopen proceedings and rescind that
17 order was denied that same year. Thus, there is no question
18 that Bhela’s 2009 motion to reopen was untimely even under
19 the special rule for abused spouses. See
id. Moreover,
20 Bhela did not allege any extraordinary circumstances, or any
21 extreme hardship to his children, that would excuse the one
22 year filing deadline. See
id.
23 For the foregoing reasons, the petition for review is
5
1 DENIED. As we have completed our review, any stay of
2 removal that the Court previously granted in this petition
3 is VACATED, and any pending motion for a stay of removal in
4 this petition is DISMISSED as moot. Any pending request for
5 oral argument in this petition is DENIED in accordance with
6 Federal Rule of Appellate Procedure 34(a)(2), and Second
7 Circuit Local Rule 34.1(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
6
