Filed: Feb. 08, 2010
Latest Update: Mar. 02, 2020
Summary: 08-6173-ag Faiz v. Holder BIA Montante, IJ A 095 967 378 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 TH
Summary: 08-6173-ag Faiz v. Holder BIA Montante, IJ A 095 967 378 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..
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08-6173-ag
Faiz v. Holder
BIA
Montante, IJ
A 095 967 378
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 8 th day of February, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 PETER W. HALL,
11 Circuit Judges.
12
13 _______________________________________
14
15 SHAHEEN FAIZ,
16 Petitioner,
17
18 v. 08-6173-ag
19 NAC
20 ERIC H. HOLDER, JR., * UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
24
25
26
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Pro se.
2
3 FOR RESPONDENT: Tony West, Assistant Attorney
4 General; Carol Federighi, Senior
5 Litigation Counsel; Brianne Whelan
6 Cohen, Trial Attorney, Office of
7 Immigration Litigation, United
8 States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED, that the petition for review
14 is DENIED.
15 Petitioner Shaheen Faiz, a native and citizen of
16 Pakistan, seeks review of the November 19, 2008 order of the
17 BIA affirming the December 6, 2006 order of Immigration
18 Judge (“IJ”) Philip Montante denying her motion to reopen.
19 In re Shaheen Faiz, No. A 095 967 378 (B.I.A. Nov. 19, 2008)
20 aff’g No. A 095 967 378 (Immig Ct. Buffalo, N.Y. Dec. 6,
21 2006). We assume the parties’ familiarity with the
22 underlying facts and procedural history of the case.
23 We review the denial of a motion to rescind an in
24 absentia removal order under the same standard applicable to
25 motions to reopen. See Alrefae v. Chertoff, 471 F.3d 353,
26 357 (2d Cir. 2006). We review the BIA’s denial of a motion
27 to reopen for abuse of discretion, mindful of the Supreme
2
1 Court’s admonition that such motions are “disfavored.” Ali
2 v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
3 Doherty,
502 U.S. 314, 322-23 (1992)).
4 An immigration judge may proceed with removal
5 proceedings in absentia if an alien fails to appear for a
6 scheduled hearing after proper written notice of the hearing
7 is sent to the alien at her most recent address. See
8 8 U.S.C. § 1229a(b)(5)(A). However, written notice is not
9 required if the alien fails to provide her address.
Id. at
10 § 1229a(b)(5)(B). In such a case, the alien will be ordered
11 removed if the government establishes the alien’s
12 removability by “clear, unequivocal, and convincing
13 evidence.”
Id. at § 1229a(b)(5)(A). Faiz, through her
14 counsel, acknowledged that she personally received the
15 Notice to Appear on January 26, 2003, which informed her
16 that she would be notified of her hearing date before an IJ,
17 the consequences of her failure to attend the hearing, and
18 her responsibility to inform the immigration court of any
19 change of address. Faiz does not dispute that she failed to
20 inform the immigration court of her change in address.
21 Therefore, no written notice was required, and the IJ did
22 not err in ordering her removed in absentia.
Id. at
3
1 § 1229a(b)(5)(A); (B); see also Maghradze v. Gonzales, 462
2 F.3d 150, 153-54 (2d Cir. 2006) (upholding BIA’s
3 determination that aliens who fail to inform the immigration
4 court of a change in address are deemed to have
5 constructively received notice provided in accordance with
6 the requirements of 8 U.S.C. § 1229a).
7 Faiz argues that her failure to appear was based on her
8 inability to understand the Notice to Appear due to her
9 minimal education and lack of knowledge of the English
10 language. She contends that the Notice does not indicate
11 that it was translated to her by a Punjabi interpreter. To
12 the contrary, the Notice clearly states that Faiz was
13 provided with oral notice in her native Punjabi language of
14 the consequences of her failure to attend. Furthermore,
15 there is no requirement that Faiz be provided with a written
16 translation of the Notice to Appear. See Lopes v. Gonzales,
17
468 F.3d 81, 84-85 (2d Cir. 2006) (“[W]e reject Silva’s
18 claim that the notices to appear were defective because they
19 did not advise him in his native Portuguese that an in
20 absentia order could be entered against him if he failed to
21 appear. The relevant statute does not require that notice
22 be provided in any particular language”).
4
1 Finally, Faiz cites no legal authority for her
2 contention that her motion should have been granted because
3 “[t]he family was moving to Canada to apply for political
4 asylum and had, at the time, no intent of returning to the
5 United States.” In fact, the BIA has held to the contrary.
6 See Matter of Brown, 18 I. & N. Dec. 324 (1982) (“As long as
7 the allegations and charges in the [NTA] continue to be
8 applicable, the alien remains subject to deportation. He
9 cannot compel the termination of deportation proceedings
10 which have been commenced against him merely by effecting a
11 departure and reentry”). The Seventh Circuit has reached a
12 similar conclusion. See Ahmed v. Gonzales, 432 F.3d 709,
13 711 (7th Cir. 2005) (finding that “because petitioner was
14 removable, had sufficient notice, and failed to appear, the
15 regulations required the immigration judge to enter an order
16 of removal,” even though petitioner was not present in the
17 United States at the time). Therefore, the agency did not
18 abuse its discretion in denying Faiz’s motion to reopen.
19
Kaur, 413 F.3d at 233-34.
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
23 is VACATED, and any pending motion for a stay of removal in
5
1 this petition is DISMISSED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2), and Second
4 Circuit Local Rule 34(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
9
6
