Reyes v. Holder , 396 F. App'x 750 ( 2010 )

09-5225-ag
Reyes v. Holder
BIA
A070 580 001
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
4 New York, on the 19th day of October, two thousand ten.
5
6 PRESENT:
7 ROGER J. MINER,
8 JOSÉ A. CABRANES,
9 DENNY CHIN,
10 Circuit Judges.
11 ______________________________________
12
13 TATIANA REYES,
14 Petitioner,
15
16 09-5225-ag
17 v. NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: H. Raymond Fasano, New York, New
25 York.
26
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Linda S. Wernery, Assistant
30 Director; Janice K. Redfern, Senior
31 Litigation Counsel, Office of
32 Immigration Litigation, Civil
33 Division, United States Department
34 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Tatiana Reyes, a native and citizen of
6 Russia, seeks review of a November 20, 2009 order of the BIA
7 denying her motion to reopen. In re Tatiana Reyes, No. A070
8 580 001 (B.I.A. Nov. 20, 2009). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 of the case.
11 We review the BIA’s denial of Reyes’s motion to reopen
12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). We review constitutional claims de novo.
14 See Guo Qi Wang v. Holder, 583 F.3d 86, 90 (2d Cir. 2009).
15 An alien may only file one motion to reopen and must do
16 so within 90 days of the final administrative decision.
17 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). Reyes’s
18 motion to reopen was therefore indisputably untimely and
19 number-barred as it was her second motion filed more than
20 five years after the agency’s final order of removal.
21 However, because the BIA nevertheless considered Reyes’s
22 motion to reopen on its merits, we review that decision and
2
1 conclude that the BIA did not abuse its discretion in
2 denying the motion.
3 In Dada v. Mukasey, 128 S. Ct. 2307, 2319 (2008), the
4 United States Supreme Court held that an alien “must be
5 permitted to withdraw, unilaterally, a voluntary departure
6 request before the departure period expires.” 128 S. Ct. at
7 2319 (emphasis added). Reyes’s voluntary departure period
8 expired on January 4, 2004. See 8 U.S.C. § 1101(a)(47)(B)
9 (providing that an “``order of deportation’” becomes “final
10 upon the earlier of . . . a determination of the BIA
11 affirming such order” or “the expiration of the period in
12 which the alien is permitted to seek review of such order by
13 the [BIA]”). However, Reyes did not file her motion to
14 reopen seeking to withdraw her request for voluntary
15 departure until April 2009, more than five years after the
16 expiration of her voluntary departure period. Therefore,
17 the BIA did not abuse its discretion to the extent it denied
18 Reyes’s request for withdrawal as untimely. See Dada, 128
19 S. Ct. at 2319.
20 The BIA also reasonably found that the IJ provided
21 Reyes with appropriate notification of the consequences of
22 failing to voluntarily depart. Under 8 U.S.C.
3
1 § 1229c(d)(3), “[t]he order permitting an alien to depart
2 voluntarily shall inform the alien of the penalties under
3 this subsection.” The IJ did so, including warnings in his
4 order granting Reyes’s request for voluntary departure and
5 also providing warnings to Reyes orally at her merits
6 hearing. Reyes indicated on the record that she understood
7 the potential penalties, and Reyes cites to no authority
8 requiring an IJ to provide a warning of those penalties
9 before granting voluntary departure. Thus, we find no error
10 in the BIA’s conclusion that the IJ’s contemporaneous
11 warnings were proper. See 8 U.S.C. § 1229c(d)(3).
12 We likewise find no merit to Reyes’s argument that the
13 IJ violated her due process rights by failing to provide her
14 with warnings prior to granting her request for voluntary
15 departure. In the immigration context, “[t]o establish a
16 violation of due process, an alien must show that she was
17 denied a full and fair opportunity to present her claims or
18 that the IJ or BIA otherwise deprived her of fundamental
19 fairness.” Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.
20 2007) (internal quotation marks omitted). The alien is also
21 required to “allege some cognizable prejudice fairly
22 attributable to the challenged process.” Garcia-Villeda v.
4
1 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)(internal quotation
2 marks omitted).
3 Reyes does not allege that she was deprived of an
4 opportunity to withdraw her request for voluntary departure
5 after learning of the consequences of failing to comply with
6 a grant of such relief. In fact, Reyes was informed of the
7 penalties associated with a failure to voluntarily depart on
8 August 28, 2002, but Reyes did not seek to withdraw her
9 request at any time before the expiration of her voluntary
10 departure period on January 4, 2004, as she had a right to
11 do. See Dada, 128 S. Ct. at 2319. Reyes thus has failed to
12 demonstrate that she was deprived of a “full and fair
13 opportunity” to withdraw her request for voluntary departure
14 after being informed of the possible consequences of failing
15 to comply with the voluntary departure order. Burger, 498
16 F.3d at 134. Accordingly, the BIA did not abuse its
17 discretion in denying Reyes’ motion to reopen. See Ke Zhen
18 Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.
19 2001).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any pending motion
22 for a stay of removal in this petition is DISMISSED as moot.
5
1 Any pending request for oral argument in this petition is
2 DENIED in accordance with Federal Rule of Appellate
3 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
8
9
6