De Souza-De Queiroz v. Barr ( 2020 )

18-3705
De Souza-De Queiroz v. Barr
BIA
Farber, IJ
A078 965 604
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 TO 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 Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 23rd day of April, two thousand twenty.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DENNY CHIN,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 ADEMIR DE SOUZA-DE QUEIROZ,
15 Petitioner,
16
17 v. 18-3705
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gerald R. Nowotny, Esq., Latin
25 American Law Center, Canton, CT.
26
27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
28 General; Shelley R. Goad,
1 Assistant Director; Julia J.
2 Tyler, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
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
9 is DENIED.
10 Petitioner Ademir De Souza-De Queiroz (“De Souza”), a
11 native and citizen of Brazil, seeks review of a December 7,
12 2018, decision of the BIA both denying his second motion to
13 reopen and affirming a March 7, 2018, decision of an
14 Immigration Judge (“IJ”) denying his first motion to reopen.
15 In re Ademir De Souza-De Queiroz, No. A 078 965 604 (B.I.A.
16 Dec. 7, 2018), aff’g No. A 078 965 604 (Immig. Ct. N.Y. City
17 A.K. Marsh. 7, 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history in this case.
19 When, as here, an alien files a motion that seeks both
20 rescission of an in absentia removal order as well as
21 reopening of removal proceedings based on new claims for
22 relief from removal, we treat the motion as “comprising two
23 distinct motions” to rescind and to reopen. Alrefae v.
24 Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). We review the
2
1 denial of a motion to rescind an in absentia removal order
2 under the same abuse of discretion standard applicable to a
3 motion to reopen. Id. De Souza was ordered removed in
4 absentia in 2003 and sought to rescind that order and reopen
5 proceedings in 2018. We find no abuse of discretion in the
6 agency’s decisions denying his motions.
7 A motion to rescind must be filed within 180 days of the
8 removal order unless “the alien demonstrates that [he] did
9 not receive notice” of his hearing. 8 U.S.C.
10 § 1229a(b)(5)(C). De Souza did not satisfy the requirements
11 for this exception to the 180-day deadline. Although he
12 alleged a deficiency in his notice to appear, he appeared at
13 an initial hearing and did not allege non-receipt of the
14 relevant hearing notice. Accordingly, to the extent he
15 sought to rescind the order, his motion was untimely. See
16 id.
17 To the extent he sought reopening to apply for asylum or
18 cancellation of removal, his motion was also untimely. An
19 alien seeking to reopen proceedings may file a motion to
20 reopen no later than 90 days after the final administrative
21 decision. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
3
1 §§ 1003.2(c)(3), 1003.23(b)(1). There is no dispute that De
2 Souza’s motion was untimely because it was filed 15 years
3 after his final removal order. While there is an exception
4 to the time limitation for asylum, it does not apply here.
5 “There is no time limit on the filing of a motion to reopen
6 if the basis of the motion is to apply for [asylum] and is
7 based on changed country conditions arising in the country of
8 nationality or the country to which removal has been ordered,
9 if such evidence is material and was not available and would
10 not have been discovered or presented at the previous
11 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). The BIA did
12 not abuse its discretion in declining to reopen to the extent
13 that De Souza sought to apply for asylum based on changed
14 country conditions because he did not file the required
15 application for relief and evidence demonstrating changed
16 country conditions. Id.; 8 C.F.R. § 1003.2(c)(1). While
17 counsel discussed country conditions in the motion and
18 supporting briefs, counsel’s statements are not evidence, see
19 Pretzantzin v. Holder, 736 F.3d 641, 651 (2d Cir. 2013), and
20 he did not identify any change in conditions in Brazil. De
21 Souza’s allegation of changed personal circumstances does not
4
1 satisfy the exception. See Wei Guang Wang v. BIA, 437 F.3d
2 270, 273 (2d Cir. 2006) (holding that changed personal
3 circumstances do not fall within the changed conditions
4 exception to reopening).
5 Although De Souza also sought reopening to apply for
6 cancellation of removal under 8 U.S.C. § 1229b(b), there are
7 no exceptions to the time limitation for cancellation. See
8 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. §§ 1003.2(c)(3)(i)–
9 (iv), 1003.23(b)(4)(i)–(iv).
10 De Souza’s remaining arguments fail as well. De Souza
11 contends that his notice to appear (“NTA”) was ineffective to
12 vest the IJ with jurisdiction because it omitted the time and
13 date of his initial hearing. This argument is foreclosed by
14 Banegas Gomez v. Barr, because he was subsequently personally
15 served with a hearing notice and appeared at his initial
16 hearings. 922 F.3d 101, 112 (2d Cir. 2019) (holding that “an
17 NTA that omits information regarding the time and date of the
18 initial removal hearing is nevertheless adequate to vest
19 jurisdiction in the Immigration Court, at least so long as a
20 notice of hearing specifying this information is later sent
21 to the alien”). We lack jurisdiction to review the BIA’s
5
1 “entirely discretionary” determination not to exercise its
2 authority to reopen proceedings sua sponte. Ali v. Gonzales,
3 448 F.3d 515, 518 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED and
6 stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
6