Filed: Sep. 18, 2013
Latest Update: Mar. 28, 2017
Summary: 11-5398 Yu v. Holder BIA Weisel, IJ A076 106 062 A076 106 063 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
Summary: 11-5398 Yu v. Holder BIA Weisel, IJ A076 106 062 A076 106 063 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 (WIT..
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11-5398
Yu v. Holder
BIA
Weisel, IJ
A076 106 062
A076 106 063
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 18th day of September, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RAYMOND J. LOHIER, JR.,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 HONG YU, TIANYI YU,
14 Petitioners,
15
16 v. 11-5398
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONERS: Thomas Edward Moseley, Newark, NJ.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Edward J. Duffy,
27 Senior Litigation Counsel; Alison
28 Marie Igoe, Senior Counsel, National
29 Security Unit, Office of Immigration
30 Litigation, United States Department
31 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 Hong Yu and Tianyi Yu, father and son and
6 natives and citizens of China, seek review of a December 1,
7 2011, order of the BIA, affirming the July 1, 2011, decision
8 of an Immigration Judge (“IJ”), which denied Petitioners’
9 motion to reopen and rescind their in absentia removal
10 orders. In re Hong Yu, Tianyi Yu, Nos. A076 106 062/063
11 (B.I.A. Dec. 1, 2011), aff’g Nos. A076 106 062/063 (Immig.
12 Ct. N.Y. City July 1, 2011). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s decisions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008) (quoting Wangchuck v. DHS,
448 F.3d 524, 528 (2d Cir.
19 2006))(quotation marks omitted). We review the denial of a
20 motion to rescind an in absentia removal order under the
21 abuse of discretion standard applicable to motions to
22 reopen. See Alrefae v. Chertoff,
471 F.3d 353, 357 (2d Cir.
23 2006); see also Ke Zhen Zhao v. U.S. Dep’t of Justice, 265
24 F.3d 83, 93 (2d Cir. 2001).
2
1 Petitioners did not contest that they had received
2 proper notice of their hearing and, therefore, were required
3 to show “‘that [their] failure to appear was because of
4 exceptional circumstances.’” Alrefae, 471 F.3d at 358
5 (quoting 8 U.S.C. § 1229a(b)(5)(C)). Exceptional
6 circumstances are circumstances “beyond the control of the
7 alien,” such as the “serious illness of the alien, or
8 serious illness or death of the spouse, child, or parent of
9 the alien, but not [] less compelling circumstances.”
10 8 U.S.C. § 1229a(e)(1).
11 Petitioners argue that they established exceptional
12 circumstances for their failure to appear because the IJ
13 abused his discretion in denying their unopposed motion for
14 a continuance. However, even assuming that an improper
15 denial of a continuance may constitute an exceptional
16 circumstance for an alien’s failure to appear, Petitioners’
17 argument is predicated on a misstatement of the record.
18 Indeed, the record is clear that the IJ did not deny
19 Petitioners’ motion to continue on the merits, but rather
20 refused to consider the motion because it was filed late and
21 in violation of the Immigration Court Practice Manual.
22 Petitioners do not dispute that their counsel filed the
3
1 motion to continue only four days before the December 2010
2 master calender hearing, although the Immigration Court
3 Practice Manual clearly provides that “filings must be
4 submitted at least fifteen (15) days in advance of the
5 [master calender] hearing if requesting a ruling at or prior
6 to the hearing.” Immigration Court Practice Manual,
7 § 3.1(b)(i)(A). The Immigration Court Practice Manual also
8 cautions that “[t]he untimely submission of a filing may
9 have serious consequences” and that “[t]he Immigration Judge
10 retains the authority to determine how to treat an untimely
11 filing.” Id. § 3.1(d)(ii). Because Petitioners do not
12 allege any error in the IJ’s refusal to consider their
13 motion for failure to comply with the filing requirements of
14 the Immigration Court Practice Manual, they have waived
15 review of this determination, which forecloses their
16 argument for exceptional circumstances based on the IJ’s
17 purported merits-based denial of their motion. See Yueqing
18 Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.
19 2005) (providing that issues not argued in briefs are deemed
20 waived).
21 Lastly, we reject Petitioners’ argument that their
22 presence in Canada and inability to return to the United
23 States constituted an exceptional circumstance for their
4
1 failure to appear. See 8 U.S.C. § 1229a(e)(1). Indeed,
2 Petitioners do not dispute that they were sent hearing
3 notices for the December 2010 master calender hearing in
4 September 2010, but took no action to contact the
5 Immigration Court to request a telephonic conference or a
6 waiver of appearance. Nor do Petitioners argue that they
7 took any action to attempt to legally return to the United
8 States for their hearing. Accordingly, the agency properly
9 determined that Petitioners’ presence in Canada and
10 inability to return to the United States did not constitute
11 an exceptional circumstance for their failure to appear that
12 was “beyond [their] control.” 8 U.S.C. § 1229a(e)(1)
13 (emphasis added).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
5
