Espinal Paz v. Lynch ( 2016 )

15-2670
Espinal Paz v. Lynch
BIA
Bukszpan, IJ
A070 436 901
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 20th day of December, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 CARLOS A. ESPINAL PAZ, AKA CARLOS
14 ARISTIDES ESPINAL PAZ,
15 Petitioner,
16
17 v. 15-2670
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Craig Relles, Law Office of Craig
25 Relles, White Plains, N.Y.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General; Julie M.
29 Iversen, Senior Litigation Counsel;
30 James A. Hurley, Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 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 is
4 DENIED.
5 Petitioner Carlos A. Espinal Paz, a native and citizen of
6 El Salvador, seeks review of a July 22, 2015, decision of the
7 BIA affirming a March 2, 2015, decision of an Immigration Judge
8 (“IJ”) denying Espinal’s motion to reconsider the previous
9 denial of his motion to rescind the in absentia order for his
10 removal. In re Carlos A. Espinal-Paz, No. A070 436 901 (B.I.A.
11 July 22, 2015), aff’g No. A070 436 901 (Immig. Ct. N.Y. City
12 Mar. 2, 2015). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed the
15 decisions of both the IJ and BIA “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). When, as here, an alien files a petition from the denial
18 of a motion to reconsider, but not from the denial of the motion
19 of which reconsideration was sought, our review is limited to
20 the denial of the motion to reconsider. See Kaur v. BIA, 413
21 F.3d 232, 233 (2d Cir. 2005); see also Stone v. INS, 514 U.S.
22 386, 405 (1995) (holding that the courts of appeals must treat
23 each petition for review as challenging only the BIA decision
2
1 from which it was timely filed). Accordingly, only the
2 agency’s denial of Espinal’s motion to reconsider is before us.
3 An alien seeking reconsideration must “specify the errors
4 of law or fact in the previous order and [support the motion]
5 with pertinent authority.” 8 U.S.C. § 1229a(c)(6)(C);
6 8 C.F.R. § 1003.2(b)(1); see Jian Hui Shao v. Mukasey, 546 F.3d
7 138, 173 (2d Cir. 2008). We review the agency’s denial of a
8 motion to reconsider for abuse of discretion. See Jin Ming Liu
9 v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). The agency “does
10 not abuse its discretion by denying a motion to reconsider where
11 the motion repeats arguments that the [agency] has previously
12 rejected.” Id. Here, the question is whether Espinal’s
13 motion for reconsideration identified any error in the agency’s
14 denial of his motion to rescind. It did not, and the agency
15 did not abuse its discretion by denying the motion.
16 “An order entered in absentia in deportation proceedings
17 may be rescinded only upon a motion to reopen filed: (1) Within
18 180 days after the date of the order of deportation if the alien
19 demonstrates that the failure to appear was because of
20 exceptional circumstances beyond the control of the alien
21 (e.g., serious illness of the alien or serious illness or death
22 of an immediate relative of the alien, but not including less
23 compelling circumstances); or (2) At any time if the alien
3
1 demonstrates that he or she did not receive notice or if the
2 alien demonstrates that he or she was in federal or state custody
3 and the failure to appear was through no fault of the alien.”
4 8 C.F.R. § 1003.23(b)(4)(iii)(A); see 8 U.S.C.
5 § 1229a(b)(5)(C). “[A] lawyer’s inaccurate advice to his
6 client concerning an immigration hearing date can constitute
7 ‘exceptional circumstances’ excusing the alien’s failure to
8 appear at a deportation hearing . . . .” Aris v. Mukasey, 517
9 F.3d 595, 599 (2d Cir. 2008).
10 First, the agency did not abuse its discretion in denying
11 reconsideration based on Espinal’s claim that he lacked notice
12 of his hearing. See Jin Ming Liu, 439 F.3d at 111. The IJ
13 already rejected this claim in the initial denial of Espinal’s
14 motion to rescind when she found that Espinal was physically
15 present in court (with counsel and an interpreter) when the
16 hearing date was announced. Additionally, Espinal concedes
17 that he received oral notice of his hearing, and he has failed
18 to identify any authority requiring subsequent written notice.
19 Second, the agency did not abuse its discretion in denying
20 reconsideration based on Espinal’s claim that his counsel’s
21 ineffective assistance constituted “exceptional
22 circumstances” for his failure to appear. See Aris, 517 F.3d
23 at 599. Espinal is unable to demonstrate an abuse of discretion
4
1 in the rejection of his ineffective assistance claim because,
2 as the agency observed, he had not complied with the procedural
3 requirements set forth in Matter of Lozada, 19 I. & N. Dec. 6374 (B.I.A. 1988). See Garcia-Martinez v. Dep’t of Homeland Sec.,
5 448 F.3d 511, 513-14 & n.1 (“Under Lozada, an applicant who
6 claims ineffective assistance of counsel must submit (1) an
7 affidavit setting forth in detail the agreement with former
8 counsel concerning what action would be taken and what counsel
9 did or did not represent in this regard; (2) proof that the
10 applicant notified former counsel of the allegations of
11 ineffective assistance and allowed counsel an opportunity to
12 respond; and (3) if a violation of ethical or legal
13 responsibilities is claimed, a statement as to whether the
14 applicant has filed a complaint regarding counsel's conduct
15 with the appropriate disciplinary authorities and, if a
16 complaint has not been filed, an explanation for not doing
17 so.”). “Because [Espinal] was obligated ‘to comply
18 substantially with the Lozada requirements’ and because he has
19 failed to do so, he has ‘forfeit[ed] [his] ineffective
20 assistance of counsel claim in this Court.’” Garcia-Martinez,
21 448 F.3d at 514 (quoting Jian Yun Zheng v. U.S. Dep’t of Justice,
22 409 F.3d 43, 46 (2d Cir. 2005)).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED.
4 Any pending request for oral argument in this petition is DENIED
5 in accordance with Federal Rule of Appellate Procedure
6 34(a)(2), and Second Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
6