Durgaj v. Holder , 474 F. App'x 19 ( 2012 )

10-1961-ag BIA
Durgaj v. Holder Lamb, IJ
A073 580 327
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.
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 5th day of April, two thousand twelve.
PRESENT:
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_________________________________________
BARDH DURGAJ,
Petitioner,
v. 10-1961-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Caridad Pastor Cardinale, Troy,
Michigan.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Thomas B. Fatouros, Senior
Litigation Counsel; Annette M.
Wietecha, 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 DENIED.
Petitioner Bardh Durgaj, a native and citizen of
Albania, seeks review of a May 12, 2010 order of the BIA
affirming the February 2, 2009 decision of Immigration Judge
(“IJ”) Elizabeth A. Lamb, which denied his motion to reopen.
In re Bardh Durgaj, No. A073 580 327 (B.I.A. May 12, 2010),
aff’g No. A073 580 327 (Immig. Ct. N.Y. City Feb. 2, 2009).
We assume the parties’ familiarity with the underlying facts
and procedural history of the case.
Under the circumstances of this case, we have reviewed
the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005). The applicable standards of review
are well-established. See Debeatham v. Holder, 602 F.3d
481, 484 (2d Cir. 2010); Aliyev v. Mukasey, 549 F.3d 111,
115-16 (2d Cir. 2008). An order of removal entered in
absentia may be rescinded only upon: (1) a motion filed
within 180 days after the date of the order of removal if
the alien demonstrates that the failure to appear was
because of exceptional circumstances; or (2) a motion to
reopen filed at any time if the alien demonstrates that he
2
did not receive notice as required or demonstrates that he
was in federal or state custody and the failure to appear
was through no fault of his own. 8 U.S.C. § 1229a(b)(5)(C).
The only issue before us is whether the agency erred in
finding that Durgaj received the required notice and thus
was not eligible for rescission of his in absentia removal
order, as Durgaj does not assert any exceptional
circumstances in his brief to this Court. The required
notice to an alien in removal proceedings consists of
written notice of the consequences of the failure to appear
at the proceedings against the alien in the notice to appear
(“NTA”), and written notice given in person to the alien
specifying any change or postponement in the time and place
of such proceedings.* 8 U.S.C. §§ 1229(a)(1), (2). Durgaj
does not allege that he did not receive written notice, only
that he did not receive oral notice in Albanian. There is
no requirement that an alien in removal proceedings be
*
While there is no requirement that an alien be given
oral notice of the consequences of failure to appear before
he is ordered removed in absentia, see 8 U.S.C.
§§ 1229(a)(1), (a)(2), 1229a(b)(5)(A), an alien who is given
oral notice in his native language of the date and time of a
hearing, and the consequences of failing to appear at that
hearing, and nonetheless fails to appear, is ineligible for
certain types of discretionary relief for ten years after
the entry of the in absentia removal order, see 8 U.S.C.
§ 1229a(b)(7).
3
notified orally of the consequences of failure to appear at
a hearing before removal is ordered in absentia, and a lack
of oral notice is not grounds for reopening proceedings
after an in absentia order has been entered. See 8 U.S.C.
§§ 1229(a), 1229a(b)(5)(A), (C). Furthermore, the record
clearly shows that with the service of the NTA, Durgaj
received written notice in English, and oral notice in
Albanian, of the consequences of failing to appear at any
scheduled hearing. He further received written notice, in
English, prior to his August 12, 1999 hearing date, of the
consequences of failing to appear at that particular
hearing. Consequently, the agency did not abuse its
discretion in denying Durgaj’s motion to reopen.
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
4