Persaud v. Holder ( 2011 )

10-1963-ag
Persaud v. Holder
BIA
A073 540 452
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 30th day of September, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 ______________________________________
12
13 NAITRAM PERSAUD,
14 Petitioner,
15 10-1963-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR.,
19 Respondent.
20 ______________________________________
21
22 FOR PETITIONER: Naitram Persaud, pro se.
23
24 FOR RESPONDENT: Tony West, Assistant Attorney
25 General; Leslie McKay, Assistant
26 Director; Kelly J. Walls, Trial
27 Attorney, Office of Immigration
28 Litigation, Civil Division, United
29 States Department of Justice,
30 Washington, D.C.
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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 Naitram Persaud, a native and citizen of Guyana, seeks
6 review of a May 12, 2010, decision of the BIA denying his
7 motion to reopen his deportation proceedings. In re
8 Persaud, No. A073 540 452 (B.I.A. May 12, 2010). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history of the case.
11 As an initial matter, we lack jurisdiction to review
12 Persaud’s arguments with respect to the underlying denial of
13 asylum, because our review is limited to the BIA’s denial of
14 his motion to reopen, as that is the only order from which a
15 timely petition for review was filed. See Ke Zhen Zhao v.
16 U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).
17 We review the BIA’s denial of a motion to reopen for abuse
18 of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d
19 Cir. 2006). The BIA did not abuse its discretion in denying
20 Persaud’s motion to reopen as untimely. See id. A motion
21 to reopen must generally be filed no later than 90 days
22 after the date on which the final administrative decision
23 was rendered in the proceedings sought to be reopened. See
2
1 8 U.S.C. § 1229a(c)(7)(C). There is no dispute that
2 Persaud’s motion to reopen, filed in February 2010, almost
3 fourteen years after the BIA affirmed the IJ’s denial of his
4 asylum application, was untimely. See id.
5 A. Ineffective Assistance of Counsel
6 The BIA did not abuse its discretion in declining to
7 equitably toll the time period for filing Persaud’s motion
8 to reopen because he failed to demonstrate that he exercised
9 due diligence in pursuing reopening based on his claim of
10 ineffective assistance of counsel. See Cekic v. INS, 435
11 F.3d 167, 170 (2d Cir. 2006). The BIA reasonably found that
12 other than the vague assertion that Persaud “tried to
13 contact” his former counsel, Persaud did not recount any
14 steps he took in pursuing his claim during the nearly
15 fourteen-year period between the BIA’s decision and his
16 motion to reopen, and thus failed to demonstrate that he
17 exercised due diligence in pursuing his claim “during the
18 entire period he . . . [sought] to toll.” Rashid v.
19 Mukasey, 533 F.3d 127, 132 (2d Cir. 2008). In an affidavit
20 Persaud submitted before this Court, he asserts that his
21 former counsel told him that the BIA had not decided his
22 appeal, and that in mid-2001, he was no longer able to reach
23 his former counsel. Persaud does not mention any steps he
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1 took to ascertain the status of his appeal to the BIA during
2 the more than eight years after he lost contact with his
3 former counsel, until he discovered, in 2009, that his
4 appeal had been denied. In addition, because Persaud’s
5 affidavit was not submitted to the BIA and is not part of
6 the administrative record, it is of no moment here. See 8
7 U.S.C. § 1252(b)(4)(A) (mandating that “the court of appeals
8 shall decide the petition only on the administrative
9 record”).
10 B. Discretionary Sua Sponte Reopening
11 In Persaud’s motion to reopen, he requested that the
12 BIA reopen his removal proceedings sua sponte to allow him
13 to pursue cancellation of removal and adjustment of status
14 based on his mother’s approved I-130 Petition. The BIA, in
15 its discretion, may grant reopening outside the time
16 limitations for motions to reopen. See 8 C.F.R.
17 § 1003.2(a). Although we lack jurisdiction to review the
18 BIA’s discretionary decision not to grant reopening sua
19 sponte, see Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.
20 2006), where the BIA declines to reopen sua sponte based on
21 a misperception of law, we will remand to the BIA, see
22 Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009). We
4
1 have also explained that the BIA has a “duty to ‘consider
2 the facts of record relevant to the motion’ and provide a
3 ‘rational explanation’ for its ruling.” Sheng Gao Ni v.
4 BIA, 520 F.3d 125, 129-30 (2d Cir. 2008) (citing Melnitsenko
5 v. Mukasey, 517 F.3d 42, 50 (2d Cir. 2008)).
6 Here, the BIA erred in failing to address Persaud’s
7 request for sua sponte reopening to allow him to pursue
8 adjustment of status or cancellation of removal. As the
9 Government argues, however, remand would be futile because
10 Persaud is statutorily ineligible for cancellation of
11 removal and adjustment of status. Adjustment of status is
12 available only if, inter alia, “an immigrant visa is
13 immediately available to [the alien] at the time his
14 application is filed.” 8 U.S.C. § 1255(a). Because
15 Persaud’s priority date is not current, remand to the BIA
16 for it to consider whether to reopen his deportation
17 proceedings to allow him to apply for adjustment of status
18 would be futile. See Conteh v. Gonzales, 461 F.3d 45, 64
19 (1st Cir. 2006).
20 Remand for the BIA to consider Persuad’s motion to
21 reopen sua sponte based on his application for cancellation
22 of removal would likewise be futile because he is ineligible
23 for this form of relief. Because Persaud’s proceedings
5
1 commenced (and even concluded) prior to the effective date
2 of the Illegal Immigration Reform and Immigrant
3 Responsibility Act (“IIRIRA”), the provisions regarding
4 cancellation of removal do not apply to him. See 8 U.S.C.
5 § 1229b(b) (setting forth eligibility requirements for
6 cancellation of removal). Instead, Persaud was required to
7 seek suspension of deportation under 8 U.S.C. § 1254(a)(1)
8 (repealed in 1996 with the enactment of IIRIRA), but failed
9 to do so. Cf. Arenas-Yepes v. Gonzales, 421 F.3d 111, 116-
10 17 (2d Cir. 2005). Accordingly, remand for the BIA to
11 consider in the first instance whether sua sponte reopening
12 is warranted in its discretion would be futile. See Alam v.
13 Gonzales, 438 F.3d 184, 187-188 (2d Cir. 2006) (remand is
14 not required where “there is no realistic possibility that .
15 . . the IJ or BIA would have reached a different
16 conclusion”).
17 C. Pending Motions
18 Persaud moves to supplement his brief with evidence
19 that criminal charges against him were dismissed, which he
20 contends is relevant to his eligibility for cancellation of
21 removal. However, because this evidence is not part of the
22 administrative record and was not submitted to the BIA it
6
1 has no bearing on whether the BIA abused its discretion in
2 denying his motion to reopen. See 8 U.S.C. § 1252(b)(4)(A).
3 Finally, because we deny Persaud’s petition for review on
4 the merits, we do not reach the Government’s motion to
5 dismiss based on the fugitive disentitlement doctrine.
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
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