De La Cruz v. Holder ( 2010 )

08-4389-ag
De La Cruz v. Holder
BIA
Vomacka, IJ
A078 424 318
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
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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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 27 th day of January, two thousand ten.
PRESENT:
ROBERT D. SACK,
BARRINGTON D. PARKER,
REENA RAGGI,
Circuit Judges.
_________________________________________
JOSE DE LA CRUZ, ALSO KNOWN AS JOSE
DELACRUZ,
Petitioner,
v. 08-4389-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, 1
Respondent.
_________________________________________
1
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.
FOR PETITIONER: Sandra Greene, Greene Fitzgerald
Advocates and Consultants, York,
Pennsylvania.
FOR RESPONDENT: Tony West, Assistant Attorney
General; James E. Grimes, Senior
Litigation Counsel; William C.
Minick, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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 DISMISSED, in part, and DENIED, in part.
Petitioner Jose De La Cruz, a native and citizen of the
Dominican Republic, seeks review of the August 26, 2008
order of the BIA: (1) affirming the May 19, 2008 decision of
Immigration Judge (“IJ”) Alan Vomacka, denying his motion to
rescind his in absentia removal order; and (2) denying his
motion to reopen. In re Jose De La Cruz, No. A078 424 318
(B.I.A. Aug. 26, 2008), aff’g No. A078 424 318 (Immig. Ct.
N.Y. City May 19, 2008). We assume the parties’ familiarity
with the underlying facts and procedural history of the
case.
The INA provides, in pertinent part, that no court
shall have jurisdiction to review any final order of removal
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against an alien who is removable by reason of having
committed a criminal offense covered by 8 U.S.C.
§ 1227(a)(2)(A)(iii) (relating to convictions for aggravated
felonies). See 8 U.S.C. § 1252(a)(2)(C). Here, there is no
dispute that De La Cruz was subject to removal by virtue of
his conviction of an aggravated felony. Thus, we retain
jurisdiction to review only constitutional claims and
questions of law. 8 U.S.C. § 1252(a)(2)(D).
A. Motion to Rescind
When the BIA adopts the decision of the IJ and
supplements the IJ’s decision, this Court reviews the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The agency’s
regulations provide that “[a]n order entered in absentia in
deportation proceedings may be rescinded only upon a motion
to reopen filed . . . [a]t any time if the alien
demonstrates that he or she did not receive notice.”
8 C.F.R. § 1003.23(b)(4)(iii)(A).
De La Cruz argues that the IJ failed to provide him
with adequate notice of his merits hearing because the
written notice he received was only in English. However, De
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La Cruz was provided both written notice of his hearing in
English as well as oral notice, through a certified
interpreter, in his native Spanish. In such circumstances,
the agency provided adequate notice that De La Cruz was
obligated to appear at his merits hearing. As we have
found, a Notice to Appear is not defective merely because it
fails to advise an alien in his native language that an in
absentia order could be entered against him if he fails to
appear. See Lopes v. Gonzales, 468 F.3d 81, 84-85 (2d Cir.
2006)
De La Cruz contends that the IJ violated his due
process rights by denying his motion to rescind before he
had an opportunity to respond to the evidence submitted by
the government. This argument is similarly without merit.
Although it might have been preferable for the IJ to have
allowed De La Cruz to respond, the IJ’s failure to do so did
not violate due process because the IJ did not rely solely
upon the evidence submitted by the government. See Jian Hui
Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008) (finding
that the agency’s failure to allow the petitioner an
opportunity to respond to evidence of which it took
administrative notice did not violate due process where that
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evidence did not form the sole basis for denying
petitioner’s motion to reopen). In denying De La Cruz’s
motion to rescind, the IJ relied upon the complete record of
proceedings that established that De La Cruz had been
provided both written and oral notice of his February 2003
hearing. Because the IJ relied upon evidence already in the
record, and to which De La Cruz could have responded, the IJ
did not deprive him of due process. See id. Indeed, De La
Cruz was instructed promptly to submit any documentary proof
in support of his motion to rescind, but he failed to do so.
Nor did he submit supporting documents with his motion to
reconsider, decided by the IJ on June 2. See Garcia-Villeda
v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (“Parties
claiming denial of due process in immigration cases must, in
order to prevail, allege some cognizable prejudice fairly
attributable to the challenged process.” (internal quotation
marks omitted)).
B. Motion to Reopen
In addition to his motion to rescind, De La Cruz filed
a separate application for CAT relief, which the BIA
construed as a motion to reopen. In that application, De La
Cruz asserts that he is more likely than not to be tortured
5
upon returning to the Dominican Republic because he is HIV
positive and would be denied adequate medical care. De La
Cruz argues that the agency erred in finding that he did not
allege a change in country conditions, explaining that when
he entered the United States in 1977, the AIDS epidemic had
not yet taken hold, and that current country conditions
reports demonstrate pervasive discrimination against HIV
positive individuals. Because De La Cruz challenges only
the agency’s purely factual findings, he has failed to
assert a question of law or constitutional claim reviewable
by this Court. Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 329-30 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DISMISSED, in part, and DENIED, in part. As we have
completed our review, any stay of removal that the Court
previously granted in this petition is VACATED, and any
pending motion for a stay of removal in this petition is
DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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