Filed: Apr. 12, 2011
Latest Update: Feb. 22, 2020
Summary: 10-1225-ag Jassi v. Holder BIA Nelson, IJ A072 048 960 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
Summary: 10-1225-ag Jassi v. Holder BIA Nelson, IJ A072 048 960 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 N..
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10-1225-ag
Jassi v. Holder
BIA
Nelson, IJ
A072 048 960
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 12th day of April, two thousand eleven.
PRESENT:
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_________________________________________
SUNIL KUMAR JASSI
Petitioner,
v. 10-1225-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Jaime Jasso, Westlake Village, CA.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Ada E.
Bosque, Senior Litigation Counsel;
Jonathan Robbins, Trial Attorney,
Office of Immigration Litigation,
Civil Division, United States
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Petitioner Sunil Kumar Jassi, a native and citizen of
India, seeks review of the April 2, 2010, order of the BIA,
affirming the December 17, 2009, decision of Immigration
Judge (“IJ”) Barbara A. Nelson, which denied his motion to
rescind. In re Sunil Kumar Jassi, No. A072 048 960 (B.I.A.
Apr. 2, 2010), aff’g No. A072 048 960 (Immig. Ct. N.Y. City
Dec. 17, 2009). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
We review the denial of a motion to rescind an in
absentia order for abuse of discretion. See Alrefae v.
Chertoff,
471 F.3d 353, 357 (2d Cir. 2006); see also Kaur v.
BIA,
413 F.3d 232, 233 (2d Cir. 2005) (per curiam). The
agency’s regulations provide that, although motions to
rescind in absentia orders in exclusion proceedings are not
subject to time or numerical limitations, to obtain
rescission an alien must demonstrate that he had reasonable
cause for his failure to appear. See 8 C.F.R.
§ 1003.23(b)(4)(iii)(B); Matter of N-B-, 22 I. & N. Dec.
2
590, 591 (B.I.A. 1999).
Contrary to Jassi’s argument that the agency did not
take his affidavit into account in reaching its decision,
both the IJ and the BIA referred to the claims Jassi made in
his affidavit in their decisions on the motion. See Xiao Ji
Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 338 n.17 (2d
Cir. 2006) (“[W]e presume that [the agency] has taken into
account all of the evidence before [it], unless the record
compellingly suggests otherwise.”); see also Wei Guang Wang
v. BIA,
437 F.3d 270, 275 (2d Cir. 2006) (holding that the
BIA does not abuse its discretion by giving summary
consideration to evidence presented in a motion to reopen).
Jassi further argues that the agency abused its
discretion in reaching a decision based solely on a finding
that he failed to exercise due diligence, because he
successfully demonstrated that he failed to appear for his
May 1997 hearing due to ineffective assistance of counsel,
and he adequately explained why he waited over 12 years to
move to reopen his proceedings. This argument is
unpersuasive.
Although Jassi was in exclusion proceedings, and thus
the usual 90-day time limit on motions to reopen did not
3
apply, see 8 C.F.R. § 1003.23(b)(4)(iii)(D), the BIA was not
foreclosed from denying the motion as a matter of discretion
due to Jassi’s lack of due diligence. The agency’s ultimate
decision regarding whether to rescind an in absentia
exclusion order under 8 C.F.R. § 1003.23 is discretionary.
See Twum v. INS,
411 F.3d 54, 58 (2d Cir. 2005); see also
Luna v. Holder, ---F.3d---, Nos. 07-3796-ag, 08-4840-ag,
2011 WL 722607, at *10 (2d Cir. Mar. 3, 2011) (noting the
different treatment this Court has accorded to statutory
motions to reopen versus regulatory motions to reopen, the
latter of which are discretionary). Here, the BIA did not
abuse its discretion, as it provided a rational explanation
for denying the motion – the 12-year delay in filing. See
Ke Zhen Zhao v. U.S. Dep’t of Justice,
265 F.3d 83, 93 (2d
Cir. 2001); see also, e.g., Zhao Quan Chen v. Gonzales,
492
F.3d 153, 155 (2d Cir. 2007) (three-year delay suggested
lack of diligence); Cekic v. INS,
435 F.3d 167, 171-72 (2d
Cir. 2006) (two-year delay suggested lack of diligence); Ali
v. Gonzales,
448 F.3d 515, 516-17 & n. 2 (2d Cir. 2006)
(eleven-year delay suggested lack of diligence).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
4
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5