You cannot go underground for a decade and expect any relief

11-2654-agChen v. Holder

BIALaForest, IJ

A070 906 815

UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILEDON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATEPROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENTFILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONICDATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARYORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appealsfor the Second Circuit, held at the Daniel Patrick MoynihanUnited States Courthouse, 500 Pearl Street, in the City of NewYork, on the 24th day of September, two thousand twelve.

PRESENT:DENNIS JACOBS,

Chief Judge,SUSAN L. CARNEY,CHRISTOPHER F. DRONEY,

Circuit Judges._____________________________________

HE SHENG CHEN,Petitioner,

v. 11-2654-agNAC

ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,

Respondent._____________________________________

FOR PETITIONER: Gary J. Yerman, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney General;Douglas E. Ginsburg, AssistantDirector; Jessica R. C. Malloy, TrialAttorney, Office of ImmigrationLitigation, United States Department ofJustice, Washington, D.C.

2

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is DENIED.

Petitioner He Sheng Chen, a native and citizen of the

People’s Republic of China, seeks review of a June 6, 2011

decision of the BIA affirming the April 28, 2010 decision of

Immigration Judge (“IJ”) denying his motion to reopen his

immigration proceedings. In re He Sheng Chen, No. A070 906

815 (B.I.A. June 6, 2011), aff’g No. A070 906 815 (Immig. Ct.

N.Y. City Apr. 28, 2010). We assume the parties’ familiarity

with the underlying facts and procedural history of the case.

For completeness’ sake, we review both the IJ’s and the

BIA’s opinions. See Wangchuck v. DHS, 448 F.3d 524, 528 (2d

Cir. 2006). We review the BIA’s denial of a motion to reopen

for abuse of discretion, mindful of the Supreme Court’s

admonition that such motions are “disfavored.” Ali v.

Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam)

(citing INS v. Doherty, 502 U.S. 314, 322-23 (1992)).

Generally, a motion to reopen must be filed within 90 days of

the final administrative order. See 8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although the

3

90-day period may be equitably tolled when the motion is based

on a claim of ineffective assistance of counsel, in order to

warrant equitable tolling, an alien must demonstrate “due

diligence” in pursuing his claim during “both the period of

time before the ineffective assistance of counsel was or

should have been discovered and the period from that point

until the motion to reopen is filed.” Rashid v. Mukasey, 533

F.3d 127, 131-32 (2d Cir. 2008); see also Cekic v. INS, 435

F.3d 167, 170 (2d Cir. 2006).

Here, over eleven years elapsed between Chen’s September

1998 withdrawal of his asylum application and his April 2010

motion to reopen his immigration proceedings. Chen argues

that it was not until 2009, when his current counsel explained

to him that his previous counsel had improperly presented his

asylum application, that he discovered that his previous

counsel had been ineffective, and that he has acted with due

diligence since that discovery. We have held, however, that

“even an alien who is unfamiliar with the technicalities of

immigration law can, under certain circumstances, be expected

to comprehend that he has received ineffective assistance

without being explicitly told so by an attorney.” Rashid, 533

F.3d at 132, n.3; see also Cekic, 435 F.3d at 171 (holding

4

that although petitioners reasonably relied on their

attorney’s assurances that he was actively pursuing their

case, they should have known they received ineffective

assistance once they “were aware that there was an order of

removal against them”). Chen’s affidavit supports the

conclusion that he was aware in 1998 that his attorney was

ineffective as it shows that he withdrew his asylum

application after realizing that his attorney had failed to

prepare or to request of him any supporting evidence. The

agency reasonably concluded that, at the time of that

withdrawal and the IJ’s grant of voluntary departure, Chen was

aware that he had received ineffective assistance of counsel.

Chen argues that Rashid is inapplicable because the facts

of his case are comparable to other cases in which we have

held that an alien may reasonably rely on an attorney’s

assurances that his case is being pursued. Although in

certain contexts an attorney’s assurances may excuse an

alien’s failure to pursue his claims, see, e.g., Cekic, 435

F.3d at 171; Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir.

2008), Chen does not argue that he failed to pursue his claims

because he believed that an attorney was pursuing them for

him, or because an attorney had given him incorrect advice.

5

Rather, the record supports the conclusion that Chen was aware

in 1998 that he received ineffective assistance but that he

failed to exercise due diligence in pursuing his claims from

that date until April 2010.

The agency did not abuse its discretion in finding that

Chen’s motion to reopen was untimely. Because that finding is

dispositive, we decline to consider Chen’s argument that he is

prima facie eligible for asylum, withholding of removal, and

CAT relief. See 8 U.S.C. § 1229a(c)(7)(C). Finally, we lack

jurisdiction to consider Chen’s argument that the agency

abused its discretion in failing to exercise its authority to

reopen his proceedings sua sponte. See Ali v. Gonzales, 448

F.3d 515, 518 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

FILEDU.S. COURT OF APPEALS

ELEVENTH CIRCUITJUNE 27, 2012

JOHN LEYCLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 11-15556 Non-Argument Calendar

________________________

Agency No. A077-003-179

MOHANRAJ RAHIMAN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(June 27, 2012)

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:

Mohanraj Rahiman, a native and citizen of Guyana, seeks review of the

Board of Immigration Appeals’ (“BIA”) order dismissing Rahiman’s appeal of the

Immigration Judge’s (“IJ”) denial of his motion to reopen and rescind his in

absentia removal order, filed pursuant to the Immigration and Nationality Act

(“INA”) § 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C). After review, we dismiss in

part and deny in part Rahiman’s petition for review.

I. BACKGROUND

While this petition is before this Court on only a motion to reopen, we

outline what happened in the nine years before the motion was filed.

A. 1999 Notice to Appear

On March 20, 1999, Rahiman tried to use a counterfeit Trinidadian passport

to enter the United States through Miami International Airport and was detained.

In credible fear interviews, Rahiman, who is of Indian descent, said that he feared

persecution in Guyana by people of African descent.

On April 5, 1999, the Immigration and Naturalization Service (“INS”)

served Rahiman with a Notice to Appear, charging him with: (1) procuring, by

fraud or willful misrepresentation, a visa, other documentation, or admission into

the United States, in violation of INA § 212(a)(6)(C)(i), 8 U.S.C.

§ 1182(a)(6)(C)(i); and (2) being an alien who, at the time of application for

2

admission, was not in possession of a valid unexpired immigrant visa, reentry

permit, border crossing card, or other valid entry document, in violation of INA

§ 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I).

At a July 22, 1999 calendar hearing, Rahiman filed an application for

asylum and withholding of removal. His application asserted that he feared

persecution in Guyana based on his race and his involvement with the Progressive

Youth Organization, which was aligned with the People’s Progressive Party, the

ruling political party and the party of the Indo-Guyanese. During the July 22

hearing, the IJ advised Rahiman, orally and in writing, of the consequences of his

failure to appear at his removal hearing.

B. March 13, 2002 In Absentia Removal Order

Rahiman’s asylum hearing was set for August 22, 2000, and notice was

mailed to Rahiman’s attorney. Rahiman did not appear at the hearing, but

Rahiman’s attorney appeared. Noting that Rahiman had received proper notice of

the hearing, the IJ determined that Rahiman had abandoned his claims for relief

from removal and ordered him removed in absentia.

On September 5, 2000, Rahiman filed a motion to reopen his removal

proceedings, contending that he had not appeared at the asylum hearing because

he was afraid his immigration case would take a “wrong turn,” and thus became

3

nervous and could not board the airplane. The IJ denied the motion to reopen after

finding that Rahiman had not shown exceptional circumstances. Rahiman

appealed to the BIA, which determined that Rahiman had established exceptional

circumstances and remanded to the IJ for further proceedings.

The IJ set a new hearing date for March 13, 2002. On July 2, 2001, the IJ

mailed notice of the hearing to Rahiman’s counsel of record. Once again,

Rahiman’s counsel attended the March 13, 2002 hearing, but Rahiman did not

appear. The IJ stated that the hearing was held pursuant to proper notice and

determined that Rahiman had abandoned his claims for relief. Noting that “the

issue of removability [had been] resolved,” the IJ ordered Rahiman removed in

absentia.

C. April 26, 2011 Motion to Reopen

Nine years later, on April 26, 2011, Rahiman filed a motion to reopen his

March 13, 2002 removal hearing and to rescind his in absentia removal order

based on “lack of notice and ineffective assistance of counsel.” Rahiman claimed

that he failed to attend the March 13, 2002 removal hearing because his attorney

did not inform him of it. Rahiman further argued that he was prejudiced by his

attorney’s ineffective assistance because Rahiman recently was detained and was

subject to removal to Guyana, where his life would be threatened. Rahiman

4

attached a copy of an April 20, 2011 Florida Bar complaint in which he alleged

that his attorney in 2002 was not cooperative or helpful, but did not claim that his

attorney failed to tell him of the scheduled hearing.

Rahiman also attached his sworn statement. Rahiman averred that his

attorney became upset because Rahiman called so often to check on the status of

his immigration case and advised Rahiman he would call when there was news.

When Rahiman did not hear from his attorney, Rahiman tried to call him and got a

recording that the number was no longer in service. Rahiman then learned that a

removal order had been entered on March 13, 2002 and decided he would pursue

his education, as follows:

I decided to wait and give him his time since I was told theseproceedings can take several months even up to a year. I never heardfrom him since and finally when I call him, I got a recording saying thisnumber is no longer in service. But I did find out that there was adeportation order against me on March 13, 2002. At this time I becamevery frustrated and decided I would go to school and pursue myeducation.

Rahiman stated that, thereafter, he earned an associate’s degree at Bronx

Community College, a bachelor’s degree from the City University of New York in

2006 and a master’s degree from Fordham University in 2008.

Rahiman subsequently submitted a second Florida Bar complaint, dated

May 24, 2011, in which Rahiman claimed that he repeatedly tried to reach his

5

attorney and the failure to reach his attorney resulted in Rahiman not knowing the

date of his March 13, 2002 hearing. Rahiman also submitted documentation

showing that on May 13, 2009, and again on March 17, 2011, he sought assistance

from a New York immigration clinic. With a clinic attorney’s help, Rahiman

requested a copy of his immigration file pursuant to the Freedom of Information

Act and received the file in May 2011.

On August 17, 2011, the IJ denied Rahiman’s motion to reopen. The IJ

noted that, although Rahiman claimed he did not receive notice of the March 13,

2002 removal hearing due to his counsel’s ineffective assistance, his counsel

appeared on his behalf at that 2002 hearing. The IJ also found, based on

Rahiman’s sworn statement, that Rahiman waited nine years after learning of the

removal order to file the motion to reopen. The IJ concluded that Rahiman’s

motion to reopen was time-barred because it was filed more than 180 days after

entry of the removal order and that ineffective assistance did not equitably toll the

180-day deadline. The IJ alternatively concluded that, even if equitable tolling

applied, Rahiman had not acted with due diligence.

Rahiman appealed to the BIA arguing, inter alia, that the IJ misread

Rahiman’s sworn statement and that Rahiman did not find out about the in

absentia removal order until some time after the March 13, 2002 hearing, as

6

follows:

Respondent is not saying that he found out on March 13, 2002 he wasordered deported. He is saying he found out that his order of removalwas entered on that day. He also is not saying that he found out abouthis removal at the time he was calling his lawyer back in 2002. Ratherhe is highlighting here that it is at the time that he finally did call him,after waiting all this time, that he discovered that the lawyer’s phonewas disconnected, and it is roughly around that exact time that he laterlearned he was ordered removed.

Rahiman contended that he was diligent because he sought help from the

immigration clinic in 2009. However, Rahiman did not say when he learned of the

March 13, 2002 removal order or why he waited until 2009 to seek legal

assistance.

The BIA dismissed Rahiman’s appeal. The BIA determined that Rahiman

received proper notice of the March 13, 2002 hearing because his counsel actually

received notice of the hearing. To the extent Rahiman claimed exceptional

circumstances, his motion to reopen was time-barred and the 180-day deadline

could not be equitably tolled even in the case of ineffective assistance of counsel.

Alternatively, the BIA concluded that Rahiman’s lack of due diligence foreclosed

the application of equitable tolling. Even though Rahiman had notice that the INS

sought to remove him, he failed to take any actions to inquire into the status of his

proceedings from 2002 until he sought legal advice in May 2009 and he failed to

7

offer any explanation for that lengthy wait. The BIA also declined to reopen

Rahiman’s proceedings sua sponte. Rahiman petitioned for review.

II. DISCUSSION

If an alien fails to appear at his removal hearing, the IJ must order the alien

removed in absentia if the government proves by clear, unequivocal and

convincing evidence that the alien received proper notice and is removable. See

INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A); 8 C.F.R. §§ 1208.10,

1208.2(c)(3)(ii). The alien may move to reopen the proceedings and rescind the in

absentia removal order: (1) within 180 days after the entry of the in absentia

removal order if he shows “that the failure to appear was because of exceptional

circumstances”; or (2) “at any time” if he shows that he did not receive proper

notice of the hearing. INA § 240(b)(5)(C)(i)-(ii), 8 U.S.C. § 1229a(b)(5)(C)(i)-(ii).

Here, Rahiman filed his motion to reopen based on both lack of proper notice and

exceptional circumstances. 1

We review the denial of a motion to reopen for abuse of discretion. Anin v. Reno, 1881

F.3d 1273, 1276 (11th Cir. 1999). “Our review is limited to determining whether there has beenan exercise of administrative discretion and whether the matter of exercise has been arbitrary orcapricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (internal quotationmarks omitted). In the context of a motion to reopen and rescind a removal order entered inabsentia, our review is limited to: (1) “the validity of the notice provided to the alien”; (2) “thereasons for the alien’s not attending the proceeding”; and (3) “whether or not the alien isremovable.” INA § 240(b)(5)(D), 8 U.S.C. § 1229a(b)(5)(D); see also Contreras-Rodriguez v.U.S. Att’y Gen., 462 F.3d 1314, 1317 (11th Cir. 2006). Where, as here, the BIA did notexpressly adopt the IJ’s decision or reasoning, we review only the BIA’s decision. See Al Najjar

8

A. Notice of March 13, 2002 Hearing

Rahiman argues that the BIA violated his due process rights when it found

that he received proper notice of the asylum hearing despite his attorney’s

ineffective assistance.

In removal proceedings, the IJ is required to provide an alien notice

regarding the time and place of each hearing. INA § 239(a)(1)-(2), 8 U.S.C.

§ 1229(a)(1)-(2). That notice may be provided by personal service on the alien or

service by mail to the alien or the alien’s counsel of record. INA § 239(a)(1),

(2)(a), 8 U.S.C. § 1229(a)(1), (2)(a); see also 8 C.F.R. § 1292.5(a). “Due process

is satisfied if notice is accorded in a manner reasonably calculated to ensure that

notice reaches the alien,” and service by mail to an alien’s counsel of record

satisfies this standard. Anin v. Reno, 188 F.3d 1273, 1277-78 (11th Cir. 1999)

(internal quotation marks omitted). Therefore, actual notice to the alien is not

required under the INA and “the fact that [the alien] did not receive actual notice .

. . does not present a violation of the Due Process Clause.” Id. at 1276-77

(interpreting predecessor to INA § 239(a), 8 U.S.C. § 1229(a), formerly found at

INA § 242B(c), 8 U.S.C. § 1252b(c) (1994)).

Here, the INS mailed notice of the March 13, 2002 hearing to Rahiman’s

v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).

9

counsel of record. That notice contained information as to the date, time and place

of the 2002 hearing and the consequences of failing to appear. Importantly,

Rahiman’s counsel actually received the notice given that he attended the hearing.

The notice was sufficient and was sent in a manner reasonably calculated to ensure

it reached Rahiman. Rahiman’s motion to reopen thus did not show that he failed

to receive proper notice of the March 13, 2002 hearing. Accordingly, the BIA did

not violate Rahiman’s due process rights, much less abuse its discretion, when it

denied Rahiman’s motion to reopen based on lack of notice.

B. Exceptional Circumstances

The other basis for Rahiman’s motion to reopen is his attorney’s ineffective

assistance. Under some circumstances, an attorney’s ineffective assistance can

constitute “exceptional circumstances.” See, e.g., Montano Cisneros v. U.S. Att’y

Gen., 514 F.3d 1224, 1226 (11th Cir. 2008) (involving aliens who failed to appear

because counsel advised them they did not need to attend the scheduled hearing).

However, an alien’s motion to reopen and rescind an in absentia removal order

based on exceptional circumstances must be filed “within 180 days after the date

of the order of removal.” INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i).

This Court has explained that because “congressional filing deadlines should be

read literally by federal courts,” the INA’s time limitations with respect to motions

10

to reopen, although “inherently . . . arbitrary and harsh,” are “jurisdictional and

mandatory.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1150 (11th Cir. 2005)

(involving 90-day deadline for general motions to reopen found in INA

§ 240(c)(7)(C), 8 U.S.C. § 1229a(c)(7)(C)); see also Anin, 188 F.3d at 1278.

Consequently, this Court has concluded that those statutory deadlines cannot be

equitably tolled or excused because of ineffective assistance of counsel. See Abdi,

430 F.3d at 1150; Anin, 188 F.3d at 1278.

Here, it is undisputed that Rahiman’s motion to reopen based on ineffective

assistance of counsel was not filed until April 26, 2011, nine years after the IJ’s

March 13, 2002 removal order. Thus, to the extent Rahiman’s motion to reopen

was based on exceptional circumstances, Rahiman failed to timely file it within the

180-day deadline in INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i).

Rahiman argues that the 180-day deadline is subject to equitable tolling due

to his counsel’s ineffective assistance. Rahiman points out that other circuits have

determined that the INA’s filing deadlines for motions to reopen are akin to

statutes of limitations and not jurisdictional and thus can be equitably tolled. See,

e.g., Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir. 2005); Iavorski v. INS, 232

F.3d 124, 129-30 (2d Cir. 2000); Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir.

1999). We are bound by Anin and Abdi, however, which do not recognize

11

equitable tolling of filing deadlines for motions to reopen based on ineffective

assistance of counsel. Accordingly, the BIA did not abuse its discretion when it

concluded that Rahiman’s motion to reopen and rescind his in absentia removal

order based on exceptional circumstances was time-barred.

In any event, we agree with the BIA that, even if the 180-day deadline could

be equitably tolled, the circumstances in Rahiman’s case would not warrant such

equitable relief because Rahiman failed to exercise due diligence. By his own

admission, Rahiman knew of the in absentia removal order before be decided to

pursue his education. Given that Rahiman obtained his bachelor’s degree in 2006,

he learned of the removal order well before 2006. Yet Rahiman took no action

until 2009, when he sought legal assistance from an immigration clinic, and he did

not file his motion to reopen until 2011.

Finally, Rahiman contends the BIA abused its discretion when it did not

reopen his removal proceedings sua sponte pursuant to 8 C.F.R. § 1003.2(a). We

lack subject-matter jurisdiction to review such a claim. See Lenis v. U.S. Att’y

Gen., 525 F.3d 1291, 1292-93 (11th Cir. 2008). Contrary to Rahiman’s argument,

the Supreme Court has not overruled Lenis. See Kucana v. Holder, 558 U.S. ___,

130 S. Ct. 827, 839 n.18 (2010) (“We express no opinion on whether federal

courts may review the Board’s decision not to reopen removal proceedings sua

12

sponte. Courts of Appeals have held that such decisions are unreviewable because

sua sponte reopening is committed to agency discretion by law.”). Accordingly,

Rahiman’s petition is dismissed to the extent it seeks review of the BIA’s failure

to sua sponte reopen his removal proceedings.

DENIED IN PART, DISMISSED IN PART.

13

11-3162-agDevsani v. Holder

BIAMontante, IJ

A074 857 273/274

UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDERFILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OFAPPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDERIN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR ANELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARYORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals1for the Second Circuit, held at the Daniel Patrick Moynihan2United States Courthouse, 500 Pearl Street, in the City of3New York, on the 21st day of June, two thousand twelve.4

5PRESENT:6

GUIDO CALABRESI,7REENA RAGGI,8DENNY CHIN,9

Circuit Judges. 1011

___________________________________1213

PANKAJ PRAVIN DEVSANI, 14ASMITHA PANKAJ DEVSANI,15

Petitioners, 1617

v. 11-3162-ag18NAC 19

ERIC H. HOLDER, JR., UNITED STATES 20ATTORNEY GENERAL,21

Respondent.22_____________________________________23

24FOR PETITIONERS: Judy Resnick, Esq., Far Rockaway,25

New York.2627

FOR RESPONDENT: Tony West, Assistant Attorney28General; Melissa Neiman-Kelting,29Senior Litigation Counsel; Kelly J.30Walls, Trial Attorney, Office of31Immigration Litigation, Civil32Division, United States Department33of Justice, Washington, D.C.34

2

UPON DUE CONSIDERATION of this petition for review of a1

Board of Immigration Appeals (“BIA”) decision, it is hereby2

ORDERED, ADJUDGED, AND DECREED that the petition for review3

is DENIED.4

Petitioners Pankaj Pravin Devsani and Asmitha Pankaj5

Devsani, husband and wife and natives and citizens of India, 6

seek review of a July 6, 2011 order of the BIA affirming the7

July 14, 2010 decision of Immigration Judge (“IJ”) Philip J.8

Montante, Jr. denying their motions to rescind in absentia9

removal orders and reopen their proceedings. In re Pankaj10

Pravin Devsani, Nos. A074 857 273/274 (B.I.A. July 6, 2011),11

aff’g Nos. A074 857 273/274 (Immig. Ct. Buffalo, N.Y. July12

14, 2010). We assume the parties’ familiarity with the13

underlying facts and procedural history of this case.14

Under the circumstances of this case, we have reviewed15

the decision of the IJ as supplemented by the BIA. See Yan16

Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We17

review the agency’s denial of motions to rescind or reopen18

for abuse of discretion. See Alrefae v. Chertoff, 471 F.3d19

353, 357 (2d Cir. 2006).20

A deportation order entered in absentia may be21

rescinded if the alien shows he did not receive notice of22

the removal hearing. See 8 U.S.C. § 1229a(b)(5)(C)(ii);23

3

accord Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir. 2006). 1

In this case, the IJ reasonably determined that the2

petitioners received notice of their hearing because (1)3

they received written Notices to Appear specifying the4

hearing date, which they signed to acknowledge that they5

received oral notice of their contents; and (2) reports6

written by the border patrol agents who arrested the7

petitioners indicated that the agents had been able to8

communicate with them in English and Hindi. The petitioners9

had no right to receive notice in Gujarati, which they10

asserted was their “best language,” Pet’rs Br. 14, since11

they received adequate oral and written notice. See Lopes,12

468 F.3d at 85 (noting that the governing statute does not13

require that an alien receive notice in any particular14

language).15

Because petitioners did not deny that they received16

notice of their hearing’s date and time, but only complain17

of the language in which it was communicated, petitioners18

failed to demonstrate that they did not receive notice, see19

8 U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R.20

§ 1003.23(b)(4)(iii)(a)(1), no evidentiary hearing was21

necessary to resolve disputed issues of fact. Moreover, the22

4

BIA applied the proper standard of review on appeal,1

reviewing the IJ’s factual findings for clear error and its2

legal conclusions de novo. See 8 C.F.R. § 1003.1(d)(3)(i),3

(ii). In sum, the agency did not abuse its discretion, or4

deprive the petitioners of due process, in denying their5

motions to rescind because they received notice of their6

removal hearing.7

Insofar as the petitioners sought reopening based on8

their desire to apply for adjustment of status, the agency9

did not abuse its discretion in denying their motion to10

reopen as untimely. Generally, motions to reopen must be11

filed within 90 days of a removal order. See 8 U.S.C.12

§ 1229a(c)(7)(C)(i). Petitioners’ motions were filed over13

ten years after their in absentia removal orders, and they14

did not present circumstances that would excuse their motion15

from that time limit to the agency. We do not have16

jurisdiction to review the BIA’s discretionary decision not17

to reopen proceedings sua sponte. See Ali v. Gonzales, 44818

F.3d 515, 518 (2d Cir. 2006). 19

Finally, the agency’s decision in this case did not20

deprive the petitioners of due process. Petitioners21

received “a full and fair opportunity to present [their]22

5

claims” by presenting evidence with their motions, thus1

eliminating their procedural due process claim. See Burger2

v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007). Nor were3

petitioners’ substantive due process rights violated. The4

agency’s decision to deny their motion to reopen as untimely5

and to decline to reopen sua sponte was not “so egregious,6

so outrageous, that it may fairly be said to shock the7

contemporary conscience.” See Bolmer v. Oliveira, 594 F.3d8

134, 142 (2d Cir. 2010) (quoting County of Sacramento v.9

Lewis, 523 U.S. 833, 847 n.8 (1998)).10

For the foregoing reasons, the petition for review is11

DENIED. As we have completed our review, any stay of12

removal that the Court previously granted in this petition13

is VACATED, and any pending motion for a stay of removal in14

this petition is DISMISSED as moot. Any pending request for15

oral argument in this petition is DENIED in accordance with16

Federal Rule of Appellate Procedure 34(a)(2), and Second17

Circuit Local Rule 34.1(b).18

FOR THE COURT: 19Catherine O’Hagan Wolfe, Clerk20

2122

This disposition is not appropriate for publication and is not precedent *

except as provided by 9th Cir. R. 36-3.

The panel unanimously concludes this case is suitable for decision **

without oral argument. See Fed. R. App. P. 34(a)(2).

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDGAR SAMUEL LARA-GARCIA,

Petitioner,

v.

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

No. 10-73195

Agency No. A072-307-959

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted September 10, 2012**

Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

Edgar Samuel Lara-Garcia, a native and citizen of Guatemala, petitions for

review of an order of the Board of Immigration Appeals (“BIA”) denying his

motion to reopen deportation proceedings. Our jurisdiction is governed by

8 U.S.C. § 1252. Reviewing for abuse of discretion the BIA’s denial of a motion

FILEDSEP 24 2012

MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS

10-731952

to reopen, Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011) (citation omitted),

we deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion by denying Lara-Garcia’s motion to

reopen as untimely because the motion was filed approximately 13 years after

issuance of the final administrative order, see 8 C.F.R. §§ 1003.2(c)(2), 1241.31,

and Lara-Garcia failed to demonstrate the due diligence necessary to warrant

equitable tolling of the filing deadline, where his motion did not state when he had

definitively learned of the alleged ineffective assistance of his former attorney, see

Avagyan, 646 F.3d at 679 (measuring the end of the tolling period from “when

petitioner definitively learns of the harm resulting from counsel’s deficiency”).

We lack jurisdiction to review Lara-Garcia’s due process challenge to the

BIA’s decision to invoke the summary-affirmance procedure in its 2001 order,

because he failed to raise this contention in his motion to reopen before the BIA.

See Tijani v. Holder, 628 F.3d 1071, 1079 (9th Cir. 2010) (“We lack jurisdiction to

review legal claims not presented in an alien’s administrative proceedings before

the BIA.”).

Finally, because our determination regarding the untimeliness of Lara-

Garcia’s motion to reopen is dispositive of his petition for review, we decline to

consider his assertion that he remains prima facie eligible for relief from removal.

10-731953

See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006) (declining to

reach nondispositive challenges to a BIA order).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.