Duarte v. Barr ( 2020 )

18‐2167
Duarte v. Barr
BIA
Strauss, IJ
A 098 594 072/073
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 23rd day of March, two thousand twenty.
PRESENT: REENA RAGGI,
DENNY CHIN,
RICHARD J. SULLIVAN,
Circuit Judges.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
LEIDA CRISTINA DUARTE and G.D.N.,
Petitioners,
v. 18‐2167‐ag
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
FOR PETITIONERS: MARY FODEN, DeCastro Foden, LLC,
Hartford, Connecticut; Gerald R. Nowotny,
Latin American Law Center, Canton,
Connecticut.
FOR RESPONDENT: ELIZABETH K. FITZGERALD‐SAMBOU, Trial
Attorney, Margaret Kuehne Taylor, Senior
Litigation Counsel, Office of Immigration
Litigation, for Joseph H. Hunt, Assistant
Attorney General, Civil Division, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a decision
of the Board of Immigration Appeals (the ʺBIAʺ), IT IS ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioners Leida Cristina Duarte and her minor daughter, natives and
citizens of Brazil, seek review of a July 2, 2018 decision of the BIA affirming an October
12, 2017 decision of an Immigration Judge (ʺIJʺ) denying Duarteʹs motion to reopen the
proceedings to rescind an in absentia removal order. In re Leida Cristina Duarte, G.D.N.,
Nos. A 098 594 072/073 (B.I.A. Jul. 2, 2018), aff’g Nos. A 098 594 072/073 (Immig. Ct.
Hartford Oct. 12, 2017). We assume the partiesʹ familiarity with the underlying facts,
the procedural history of this case, and the issues on appeal.
We review the IJʹ s decision as supplemented by the BIA. Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review motions to reopen removal
proceedings for abuse of discretion. Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.
2009); Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). The BIA has ʺbroad
discretionʺ to grant or deny such a motion. I.N.S. v. Abudu, 485 U.S. 94, 96 (1988); see 8
C.F.R. § 1003.2(a).
2
As a general matter, a petitioner cannot appeal directly to the BIA from an
order of deportation that was issued in absentia. See 8 U.S.C. § 1229a(b)(5)(C); In re
Guzman, 22 I. & N. Dec. 722, 723 (BIA 1999) (holding that the BIA is ʺwithout authority
to consider a direct appeal from an in absentia orderʺ). Instead, a petitioner seeking to
rescind such an order must first file a motion to reopen removal proceedings. See 8
U.S.C. § 1229a(b)(5)(C). A motion to reopen can be filed at any time ʺif the alien
demonstrates that [she] did not receive notice.ʺ 8 U.S.C. § 1229a(b)(5)(c)(ii); see also
Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir. 2006) (holding that in considering a motion to
reopen, ʺthe central issue . . . is [not] whether the notice was properly mailed . . . but
rather whether the alien actually received the notice); Guzman, 22 I. & N. Dec. at 723.
Duarte argues that she did not receive notice of her April 5, 2005 hearing or the in
absentia order of removal, and that therefore her motion to reopen should have been
granted.
Even assuming that Duarte never received the notice of her April 5, 2005
hearing or the in absentia order of removal, the BIA did not abuse its discretion in
denying Duarteʹs motion to reopen. First, Duarte was personally served with a written
notice to appear, in English, for a hearing scheduled for February 22, 2005. Second,
although she was also given oral notice in Spanish when she purportedly only speaks
Portuguese, the agency is not required to give notice in a language that the petitioner
3
actually understands. See 8 U.S.C. § 1229(a)(1); see also Lopes, 468 F.3d at 85. Third,
despite the personal service of a written notice to appear, Duarte failed to appear for her
hearing. Fourth, when the hearing was rescheduled for April 5, 2005, notice was
mailed to Duarte. Although the notice was returned as undeliverable, it was mailed to
the address she provided. Finally, Duarte waited 12 years to move to rescind her in
absentia removal order. See Matter of M‐R‐A‐, 24 I. & N. Dec. 665, 674 (BIA 2008) (on
motion to reopen, factors to consider include applicantʹs affidavit, her prior attendance
at hearings, and whether she exercised due diligence to redress the situation). Duarte
knew she should have received correspondence from the immigration court, but never
attempted to learn the status of her proceedings, assuming ʺthe court had forgotten
about [her].ʺ In these circumstances, we cannot say that it was an abuse of discretion
for the agency to decline to reopen the proceedings. The BIA well understood that
Duarte did not receive the notice and in absentia order ‐‐ they were returned to the
Immigration Court as undeliverable ‐‐ but it concluded that she should be charged with
receiving the documents. In light of the circumstances, that conclusion was reasonable.
To the extent that Duarte presented new evidence to the BIA, the BIA did
not abuse its discretion in declining to remand because the request was in essence an
untimely second motion to reopen and the evidence was not previously unavailable.
See Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005) (motions to
4
remand are subject to the same standards as motions to reopen); 8 C.F.R. § 1003.2(c)(1);
8 U.S.C. § 1229a(c)(7).
The agency also declined to reopen proceedings sua sponte. The agency
may reopen sua sponte even where a motion to reopen is untimely, see 8 C.F.R.
§§ 1003.2(a), 1003.23(b)(1), but we lack jurisdiction to review this ʺentirely discretionaryʺ
determination, Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006), unless the agency
ʺmisperceived the legal background and thought, incorrectly, that a reopening would
necessarily fail,ʺ Mahmood, 570 F.3d at 469. That exception does not apply here because
the BIA did not misperceive the law. See Ali, 448 F.3d at 518; In re J‐J‐, 21 I. & N. Dec.
976, 984 (BIA 1997). Therefore, we do not have jurisdiction to further review the BIAʹs
decision not to reopen sua sponte. See Ali, 448 F.3d at 518.
For the foregoing reasons, the petition for review is DENIED. All
pending motions and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine OʹHagan Wolfe,
Clerk of Court
5