Filed: May 01, 2015
Latest Update: Mar. 02, 2020
Summary: 14-475 Quizhpi v. Lynch BIA Montante, IJ A096 442 333 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
Summary: 14-475 Quizhpi v. Lynch BIA Montante, IJ A096 442 333 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 NO..
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14-475
Quizhpi v. Lynch
BIA
Montante, IJ
A096 442 333
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 1st day of May, two thousand fifteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 JORGE QUIZHPI,
14 Petitioner,
15
16 v. 14-475
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL*,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Michael E. Piston, New York, New
25 York.
26
*Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is
automatically substituted for former Attorney General Eric H. Holder, Jr.
1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General; John S. Hogan,
3 Assistant Director; Matthew A.
4 Spurlock, Trial Attorney, Office of
5 Immigration Litigation, Civil
6 Division, United States Department
7 of Justice, Washington D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Jorge Quizhpi, a native and citizen of Ecuador, seeks
14 review of a January 23, 2014, decision of the BIA, affirming
15 the May 7, 2012, decision of an Immigration Judge (“IJ”),
16 denying his motion to reopen. In re Jorge Quizhpi, No. A096
17 442 333 (B.I.A. Jan. 23, 2014), aff’g No. A096 442 333
18 (Immig. Ct. Buffalo May 7, 2012). We assume the parties’
19 familiarity with the underlying facts and procedural history
20 in this case.
21 Under the circumstances of this case, we have
22 considered both the IJ’s and the BIA’s opinions “for the
23 sake of completeness.” Wangchuck v. Dep’t of Homeland Sec.,
24 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards
25 of review are well established. See 8 U.S.C. §
2
1 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
2 Cir. 2009).
3 We review the denial of motions to reopen for abuse of
4 discretion. See Jian Hui Shao v. Mukasey,
546 F.3d 138,
5 168-69, 173 (2d Cir. 2008). A motion to rescind an in
6 absentia removal order is reviewed under the same standard
7 as a motion to reopen. See Alrefae v. Chertoff,
471 F.3d
8 353, 357 (2d Cir. 2006). Generally, a motion to rescind
9 must be filed within 180 days of a removal order. 8 U.S.C.
10 § 1229a(b)(5)(C)(i). The deadline may be tolled, however,
11 if an alien can demonstrate that he did not receive proper
12 notice of the hearing.
Id.
13 § 1229a(b)(5)(C)(ii).
14 Quizhpi received proper notice because his Notice of
15 Hearing was mailed to his last known address, which was
16 provided on the Notice to EOIR: Alien Address (Form I-830).
17 See 8 U.S.C. § 1229(c). Quizhpi asserted that he never
18 lived at the address provided on the I-830, and that his
19 bond obligor had provided that address without his
20 knowledge. However, the I-830 stated that it was Quizhpi
21 who had provided the address.
3
1 Accordingly, because the record supports the agency’s
2 finding that Quizhpi did not provide a correct updated
3 address, it did not err in finding that Quizhpi could not
4 “evade delivery of a properly sent [Notice of Hearing] by
5 relocating without providing the required change of
6 address[.]” See Matter of M-R-A-, 24 I. & N. Dec. 665, 675
7 (B.I.A. 2008); Maghradze v. Gonzales, 462 F.3d 150, 154 (2d
8 Cir. 2006) (finding permissible the BIA’s determination that
9 an alien who fails to provide an update of a change of
10 address is deemed to have constructively received notice in
11 accordance with 8 U.S.C. § 1229(a)).
12 Quizhpi argues that he was denied due process because
13 he was not given the opportunity to cross-examine the
14 immigration officer who prepared the I-830. But Quizhpi was
15 afforded an opportunity to argue that issue before the BIA
16 because the IJ’s reliance on that document presupposed its
17 reliability. See Burger v. Gonzales,
498 F.3d 131, 134 (2d
18 Cir. 2007) (noting that a due process violation requires
19 showing lack of notice and opportunity to be heard or
20 deprivation of fundamental fairness).
4
1 Quizhpi does not challenge the agency’s determination
2 that, to the extent that he sought reopening to apply for
3 adjustment of status, his motion was untimely and he failed
4 to establish prima facie eligibility for that relief. He
5 has therefore waived review of that issue. Yueqing Zhang v.
6 Gonzales, 426 F.3d 540, 542 n.1 (2d Cir. 2005).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot. Any pending request for
12 oral argument in this petition is DENIED in accordance with
13 Federal Rule of Appellate Procedure 34(a)(2), and Second
14 Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
5
