Filed: Jun. 21, 2012
Latest Update: Mar. 26, 2017
Summary: 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 (W
Summary: 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 (WI..
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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
