Anderson v. Holder , 475 F. App'x 802 ( 2012 )

11-4516
Anderson v. Holder
BIA
Hom, IJ
A074 234 332
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 New
4 York, on the 29th day of August, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _________________________________________
13
14 EMMANUEL ANDERSON, AKA GEORGE ORHIN
15 KWASI ANSAH, AKA GEORGE ANSAH,
16 Petitioner,
17
18 v. 11-4516
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _________________________________________
24
25 FOR PETITIONER: Thomas M. Griffin, Philadelphia,
26 Pennsylvania.
27
28 FOR RESPONDENT: Stuart M. Delery, Acting Assistant
29 Attorney General; Nancy E. Friedman,
30 Senior Litigation Counsel; Christina
1 Bechak Parascandola, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Emmanuel Anderson, a native and citizen of Ghana, seeks
11 review of a September 26, 2011, order of the BIA, affirming
12 the October 15, 2010, decision of Immigration Judge (“IJ”)
13 Sandy K. Hom, which denied his motion to reopen.
14 In re Emmanuel Anderson, No. A074 234 332 (B.I.A. Sept. 26,
15 2011), aff’g No. A074 234 332 (Immig. Ct. N.Y. City Oct. 15,
16 2010). We assume the parties’ familiarity with the underlying
17 facts and procedural history.
18 When, as here, an alien files a motion that seeks both
19 rescission of an in absentia exclusion order as well as
20 reopening of proceedings based on new evidence, we treat the
21 motion as comprising distinct motions to rescind and to
22 reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.
23 2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152 n.1
24 (2d Cir. 2006). We review the denial of a motion to rescind
25 an in absentia exclusion order under the same abuse of
2
1 discretion standard applicable to motions to reopen.
2 See Alrefae, 471 F.3d at 357; see also Kaur v. BIA, 413 F.3d
3 232, 233 (2d Cir. 2005) (per curiam).
4 A. Motion to Rescind
5 Under the circumstances of this case, we review both the
6 IJ’s and the BIA’s opinions are both reviewed, “for the sake
7 of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d
8 Cir. 2008) (per curiam) (internal quotation marks omitted).
9 “A motion to reopen exclusion hearings on the basis that the
10 Immigration Judge improperly entered an order of exclusion in
11 absentia must be supported by evidence that the alien had
12 reasonable cause for his failure to appear.” 8 C.F.R.
13 § 1003.23(b)(4)(iii)(B); see also Matter of Haim, 19 I&N Dec.
14 641, 642 (BIA 1988). Failure to receive notice is
15 “reasonable cause.” 8 C.F.R. § 1003.23(b)(4)(iii)(A)
16 (permitting rescission of an in absentia deportation order at
17 any time if the alien did not receive notice of his hearing).
18 Anderson argues that he was not given notice of the
19 October 1995 exclusion hearing. As the agency observed,
20 however, the record evidence reflected that an immigration
21 officer personally served Anderson with a Form I-122, Notice
22 to Applicant for Admission Detained/Deferred for Hearing
3
1 Before Immigration Judge (“Notice to Applicant”), which
2 ordered Anderson to appear before an IJ at a specified date,
3 time, and location. Anderson neither disputes the accuracy of
4 the information contained in the Notice to Applicant, nor
5 presents any compelling evidence undermining the validity of
6 service. See Kulhawik v. Holder, 571 F.3d 296, 298 (2d
7 Cir.#2009) (per curiam) (recognizing that personal service of
8 a Notice of Hearing provided proper notification of a
9 hearing). Accordingly, the agency did not abuse its
10 discretion in denying Anderson’s motion to rescind the in
11 absentia exclusion order for failure to establish a reasonable
12 cause for his failure to appear. See 8 C.F.R.
13 § 1003.23(b)(4)(iii)(B); see also 8 C.F.R.
14 § 1003.23(b)(4)(iii)(A); Matter of Haim, 19 I&N Dec. at 642.
15 B. Motion to Reopen
16 The agency similarly did not abuse its discretion in
17 denying Anderson’s request to adjust to permanent resident
18 status. An approved immigrant visa petition does not
19 constitute grounds for reopening the case. See Matter of
20 Castro-Padron, 21 I&N Dec. 379 (BIA 1996). In exclusion
21 proceedings, the IJ and the BIA “generally lack jurisdiction
22 to entertain an application for adjustment of status,” except
4
1 in limited circumstances that are inapplicable here. See id.2 Because it is undisputed that Anderson was in exclusion
3 proceedings, the agency lacked jurisdiction over Anderson’s
4 adjustment of status application. See 8 C.F.R. §§ 245.2(a)(1)
5 and 1245.2(a)(1); Matter of Castro-Padron, 21 I&N Dec. at 379-
6 80.
7 For the foregoing reasons, the petition for review is
8 DENIED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
5