Gaviola v. Lynch , 636 F. App'x 37 ( 2016 )

12-4748
Gaviola v. Lynch
BIA
Zagzoug, IJ
A039 158 351
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 15th day of January, two thousand sixteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 MARK SEMANA GAVIOLA,
14 Petitioner,
15
16 v. 12-4748
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,*
20 Respondent.
21 _____________________________________
22
23
*Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
as Respondent.
1 FOR PETITIONER: Herbert J. Tan, Fort Lee, NJ.
2
3 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
4 Attorney General; Mary Jane Candaux,
5 Assistant Director; Channah F.
6 Norman, Trial Attorney, Office of
7 Immigration Litigation, United
8 States Department of Justice,
9 Washington, D.C.
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review is
13 DENIED.
14 Petitioner Mark Semana Gaviola, a native and citizen of
15 the Philippines, seeks review of the November 8, 2012,
16 decision of the BIA affirming the December 21, 2010, decision
17 of an Immigration Judge (“IJ”), which denied Gaviola’s motion
18 to rescind his in absentia removal order. In re Mark Semana
19 Gaviola, No. A039 158 351 (B.I.A. Nov. 8, 2012), aff’g No.
20 A039 158 351 (Immig. Ct. N.Y. City Dec. 21, 2010). We assume
21 the parties’ familiarity with the underlying facts and
22 procedural history in this case.
23 Pursuant to 8 U.S.C. § 1229a(b)(5)(A), “[a]ny alien who,
24 after written notice . . . has been provided to the alien or
25 the alien’s counsel of record, does not attend a proceeding .
26 . ., shall be ordered removed in absentia” if it is
2
1 established “by clear, unequivocal, and convincing evidence
2 that the written notice was so provided and that the alien is
3 removable.” An in absentia removal order may be rescinded,
4 inter alia, upon a motion to reopen filed within 180 days
5 after the date of the order of removal if the alien
6 establishes “exceptional circumstances.” 8 U.S.C.
7 § 1229a(b)(5)(C)(i); 8 C.F.R. § 1003.23(b)(4)(ii). When an
8 alien files a motion that seeks both rescission of an in
9 absentia order, as well as reopening of proceedings based on
10 new evidence, we treat the motion as comprising distinct
11 motions to rescind and to reopen. Alrefae v. Chertoff, 471
12 F.3d 353, 357 (2d Cir. 2006). We review both the denial of a
13 motion to rescind an in absentia removal order and the denial
14 of a motion to reopen for abuse of discretion. Id.; Maghradze
15 v. Gonzales, 462 F.3d 150, 152-53 & n.1 (2d Cir. 2006).
16 Construing Gaviola’s motion before the IJ as both a
17 motion to reopen and as a motion to rescind the in absentia
18 order, the agency did not abuse its discretion in denying the
19 motion. To the extent that Gaviola moved to reopen
20 proceedings pursuant to 8 U.S.C. § 1229a(c)(7), he did not
21 present any new, previously unavailable evidence, or any
22 additional evidence at all, and accordingly the IJ did not
3
1 abuse her discretion in declining to reopen proceedings. See
2 8 C.F.R. § 1003.2(c)(1); Norani v. Gonzales, 451 F.3d 292, 294
3 & n.3 (2d Cir. 2006). To the extent that Gaviola moved to
4 rescind the in absentia order, the motion, while timely, did
5 not adequately allege exceptional circumstances which would
6 warrant rescinding the order, as Gaviola stated only that his
7 attorney had filed a motion to adjourn proceedings, and, by
8 his own account, did not receive a reply to that motion. See
9 8 U.S.C. § 1229a(e)(1); Kulhawik v. Holder, 571 F.3d 296, 299
10 (2d Cir. 2009) (per curiam). Accordingly, the agency did not
11 abuse its discretion in declining to rescind the in absentia
12 order.**
**
As the government notes in its brief, ineffective
assistance of counsel can constitute exceptional
circumstances warranting the reopening of a removal order
entered in absentia, and, assuming due diligence on the part
of the movant, the 180-day filing deadline may be equitably
tolled. See Aris v. Mukasey, 517 F.3d 595, 599 & n.7 (2d
Cir. 2008). Gaviola does not now allege and has not
previously alleged that he received any ineffective
assistance of counsel in these proceedings, and we do not
opine on the merits of any such argument. We note, however,
that Gaviola’s attorney failed to appear at the November
2010 hearing which resulted in the in absentia order, and
that this failure is neither explained nor shown to be the
result of exceptional circumstances. Gaviola, moreover, may
be statutorily eligible for cancellation of removal for
permanent residents under 8 U.S.C. § 1229b(a), and, pursuant
to Vartelas v. Holder, 132 S. Ct. 1479 (2012), he may no
longer be inadmissible as charged.
4
1 Gaviola argues here for the first time that because his
2 assault conviction was expunged in 2008, he is not removable
3 as charged. As the government notes, this argument is
4 unexhausted and we therefore do not consider it.*** See Lin
5 Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.
6 2007).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of removal
9 that the Court previously granted in this petition is VACATED,
10 and any pending motion for a stay of removal in this petition
11 is DISMISSED as moot. Any pending request for oral argument
12 in this petition is DENIED in accordance with Federal Rule of
13 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
14 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
***
Moreover, Gaviola’s conviction was expunged pursuant
to California Penal Code § 1203.4, and a conviction expunged
under that particular statutory provision remains a
conviction for immigration purposes. See Ramirez-Castro v.
INS, 287 F.3d 1172, 1175 (9th Cir. 2002); Matter of
Marroquin-Garcia, 23 I&N Dec. 705, 713-14 (A.G. 2005); see
also Saleh v. Gonzales, 495 F.3d 17, 25 (2d Cir. 2007).
5