Filed: Jan. 20, 2011
Latest Update: Feb. 21, 2020
Summary: 09-4959-ag Patel v. Holder BIA Rocco, IJ A074 855 443 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: 09-4959-ag Patel v. Holder BIA Rocco, IJ A074 855 443 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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09-4959-ag
Patel v. Holder
BIA
Rocco, IJ
A074 855 443
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 20 th day of January, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 SANJAY MANUBHI PATEL,
14 Petitioner,
15
16 v. 09-4959-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: James J. Orlow, Philadelphia,
24 Pennsylvania.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Thomas B. Fatouros, Senior
28 Litigation Counsel; Karen Y.
29 Stewart, Attorney, Office of
30 Immigration Litigation, Civil
1 Division, United States Department
2 of Justice, Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 decision of the Board of Immigration Appeals (“BIA”), it is
6 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
7 review is DENIED.
8 Sanjay Manubhi Patel, a native and citizen of India,
9 seeks review of a November 10, 2009, order of the BIA
10 affirming the September 29, 2009, order of Immigration Judge
11 (“IJ”) Michael Rocco denying his motion to reopen. In re
12 Sanjay Manubhi Patel, No. A074 855 443 (B.I.A. Nov. 10, 2009),
13 aff’g No. 074 855 443 (Immig. Ct. Buffalo Sept. 29, 2009). We
14 assume the parties’ familiarity with the underlying facts and
15 procedural history of this case.
16 Motions to reopen in absentia exclusion orders are
17 governed by different rules depending on whether the movant
18 seeks to rescind the order or present new evidence. See Song
19 Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-,
20 22 I. & N. Dec. 349, 353-55 (BIA 1998) (en banc).
21 Accordingly, when, as here, an alien files a motion that seeks
22 both rescission of an in absentia exclusion order, as well as
23 reopening of proceedings to apply for new relief, we treat the
24 BIA’s decision as having denied distinct motions to rescind
25 and to reopen. Alrefae v. Chertoff,
471 F.3d 353, 357 (2d
2
1 Cir. 2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152
2 n.1 (2d Cir. 2006). We review the agency’s denials of motions
3 to rescind and reopen for abuse of discretion. See Alrefae,
4 471 F.3d at 357. Under the circumstances of this case, we
5 review the decision of the IJ as supplemented by the BIA. See
6 Yan Chen v. Gonzales,
417 F.3d 268, 271 (2d Cir. 2005).
7 Patel’s arguments that he did not receive proper notice
8 of his hearing and that his due process right was violated
9 because he was not provided with a translation of the Notice
10 to Appear are unavailing. A Notice to Appear is not defective
11 merely because it fails to advise an alien in his native
12 language that an in absentia order could be entered against
13 him if he fails to appear. See Lopes v. Gonzales,
468 F.3d
14 81, 84-85 (2d Cir. 2006) (rejecting a Portugese alien’s claim
15 that “the notices to appear were defective because they did
16 not advise him in his native Portuguese that an in absentia
17 order could be entered against him if he failed to appear”
18 because the relevant statute does not require that notice be
19 provided in any particular language); 8 U.S.C. § 1229(a); 8
20 C.F.R. § 1003.26. Accordingly, the agency did not abuse its
21 discretion in denying Patel’s motion to rescind.
22 To the extent Patel was requesting reopening of
23 proceedings to apply for relief from removal based on new
3
1 evidence, his motion was untimely and he did not establish
2 that it met any exceptions to the filing deadlines. 8 C.F.R.
3 § 1003.23(b); see also Matter of Yauri, 25 I. & N. Dec. 103,
4 105 (BIA 2009) (emphasizing “that untimely motions to reopen
5 to pursue an application for adjustment of status . . . do not
6 fall within any of the statutory or regulatory exceptions to
7 the time limits for motions to reopen before the Board”).
8 Thus, Patel was necessarily invoking the BIA’s authority to
9 reopen his proceedings sua sponte. See Mahmood v. Holder, 570
10 F.3d 466, 469 (2d Cir. 2009) (“Because Mahmood’s untimely
11 motion to reopen was not excused by any regulatory exception,
12 her motion to reopen could only be considered upon exercise of
13 the Agency’s sua sponte authority”); 8 C.F.R. § 1003.2(a).
14 The BIA’s determination as to whether it will exercise its sua
15 sponte authority is entirely discretionary and thus beyond the
16 scope of our jurisdiction. See Ali v. Gonzales,
448 F.3d 515,
17 517 (2d Cir. 2006). Because Patel’s motion was untimely and
18 he did not establish that his motion met any exceptions to the
19 filing deadlines, there is no error in the BIA’s finding and
20 we lack jurisdiction to review the BIA’s decision to decline
21 to sua sponte reopen his proceedings. See Mahmood,
570 F.3d
22 at 469; see also
Ali, 448 F.3d at 517; 8 C.F.R.
23 § 1003.23(b).
4
1 Finally, Patel’s argument that the agency violated the
2 notice requirements of the APA is frivolous because the
3 Supreme Court has held that the APA does not apply to
4 immigration proceedings. See Ardestanti v. INS, 502 U.S. 129,
5 133-34 (1991) (“the INA ‘expressly supersedes’ the hearing
6 provisions of the APA”) (citing Marcello v. Bonds,
349 U.S.
7 302, 310 (1955)).
8 For the foregoing reasons, the petition for review
9 is DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition is
11 VACATED, and any pending motion for a stay of removal in this
12 petition is DISMISSED as moot. Any pending request for oral
13 argument in this petition is DENIED in accordance with Federal
14 Rule of Appellate Procedure 34(a)(2), and Second Circuit Local
15 Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
20
5
