Ocasio v. Barr ( 2020 )

18-1613
Ocasio v. Barr
BIA
Hom, IJ
A076 574 740
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 9th day of October, two thousand twenty.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RAYMOND J. LOHIER, JR.,
9 MICHAEL H. PARK,
10 Circuit Judges.
11 _____________________________________
12
13 LICETH MARTHA OCASIO,
14 Petitioner,
15
16 v. 18-1613
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Bruno Joseph Bembi, Hempstead,
24 NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
27 General; Justin Markel, Senior
28 Litigation Counsel; Andrew
1 Oliveira, Trial Attorney, Office
2 of Immigration Litigation, United
3 States Department of Justice,
4 Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Liceth Martha Ocasio, a native and citizen of
10 Honduras, seeks review of a May 2, 2018 decision of the BIA
11 affirming an October 10, 2017 decision of an Immigration Judge
12 (“IJ”) denying Ocasio’s motion to reopen and rescind her in
13 absentia removal order. In re Liceth Martha Ocasio, No. A
14 076 574 740 (B.I.A. May 2, 2018), aff’g No. A 076 574 740
15 (Immig. Ct. N.Y.C. Oct. 10, 2017). We assume the parties’
16 familiarity with the underlying facts and procedural history
17 in this case.
18 Under the circumstances of this case, we consider the
19 IJ’s decision as supplemented by the BIA. Yan Chen v.
20 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Motions to reopen
21 in absentia removal orders are governed by different rules
22 depending on whether the movant seeks to rescind the order or
23 present new evidence of eligibility for relief from removal.
2
1 See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In
2 re M-S-, 22 I. & N. Dec. 349, 353–55 (BIA 1998). Accordingly,
3 when, as here, an alien files a motion that seeks both
4 rescission of an in absentia removal order, as well as
5 reopening for consideration of an application for relief from
6 removal, we treat the motion as comprising distinct motions
7 to rescind and to reopen. Alrefae v. Chertoff, 471 F.3d 353,
8 357 (2d Cir. 2006). We review the denial of a motion to
9 rescind an in absentia removal order under the same abuse of
10 discretion standard that applies to motions to reopen. See
11 Id.; Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005).
12 Motion to Rescind
13 There are two grounds to rescind an in absentia removal
14 order: (1) lack of notice of the hearing, and (2) exceptional
15 circumstances for failure to appear if rescission is
16 requested within 180 days. See 8 U.S.C. § 1229a(b)(5)(C);
17 8 C.F.R. § 1003.23(b)(4)(ii). The agency did not abuse its
18 discretion when it denied Ocasio’s motion to rescind.
19 First, the record supports the agency’s conclusion that
20 Ocasio had notice of her final hearing. The record shows a
21 letter from Ocasio’s attorney, Juan A. Torres, stating that
3
1 he was her attorney and asking to reschedule the hearing.
2 And the IJ found based on his review of the tape of the
3 hearing that both Ocasio and counsel were present at a May
4 2001 hearing at which notice was given of the August 2001
5 hearing at which the in absentia order was entered. A written
6 notice in the record supports this finding as it was signed
7 by the IJ following a statement that the IJ provided written
8 notice to Ocasio in English and orally advised her of the
9 notice’s contents in a language she understands.
10 While Ocasio now argues that she was not present at the
11 May 2001 hearing, she has not provided any evidence, including
12 any affidavit, to support that argument, and her counsel’s
13 statements to this Court are not evidence. See Pretzantzin
14 v. Holder, 736 F.3d 641, 651 (2d Cir. 2013). Moreover, she
15 does not contest that Torres was present at the May 2011
16 hearing, and any notice to her counsel constitutes notice to
17 her. See 8 U.S.C. § 1229a(b)(5)(A) (“Any alien who, after
18 written notice . . . has been provided to the alien or the
19 alien’s counsel of record, does not attend a proceeding under
20 this section, shall be ordered removed in absentia . . . .
21 ”). Although Ocasio also argues that Torres was not her
4
1 attorney of record because he did not file a notice of
2 appearance form, she did not exhaust this argument before the
3 agency. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
4 104, 122 (2d Cir. 2007) (holding that we are “usually unable
5 to review” an issue not raised before the BIA).
6 Accordingly, because Ocasio had notice, her 2017 motion
7 to rescind was untimely filed more than 180 days after the
8 2001 order. See 8 U.S.C. § 1229a(b)(5)(C). Her claim of
9 ineffective assistance of counsel was insufficient to warrant
10 a grant of equitable tolling because she did not comply with
11 the procedural requirements for such a claim. See Jian Yun
12 Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 47 (2d Cir. 2005)
13 “[A]n alien who has failed to comply substantially with
14 the [procedural] requirements in her motion to reopen before
15 the BIA forfeits her ineffective assistance of counsel claim
16 in this Court.”). We find no merit in Ocasio’s argument that
17 the procedural requirements set forth in Matter of Lozada, 19
18 I. & N. Dec. 637 (BIA 1988), should be overturned. See id.;
19 see also Piranej v. Mukasey, 516 F.3d 137, 142 (2d Cir. 2008)
20 (“[T]his Court has firmly upheld the relevance of the Lozada
21 requirements.”). In addition to Ocasio’s failure to satisfy
5
1 the procedural requirements, Ocasio failed to act with due
2 diligence. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.
3 2008) (alien who waited fourteen months did not demonstrate
4 due diligence); Iavorski v. U.S. INS, 232 F.3d 124, 134 (2d
5 Cir. 2000) (petitioner who waited nearly two years after
6 adverse BIA decision did not exercise due diligence).
7 Motion to Reopen
8 An alien seeking to reopen proceedings may file a motion
9 to reopen no later than 90 days after the date on which the
10 final administrative decision was rendered. See 8 U.S.C.
11 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1). It is
12 undisputed that Ocasio’s motion to reopen, filed 16 years
13 after her in absentia removal order, was untimely. While the
14 time limitation may be tolled based on ineffective assistance
15 of counsel, see Iavorski, 232 F.3d at 133–34, as discussed
16 above, Ocasio did not satisfy the procedural requirements or
17 exercise due diligence to toll the time limitation.
18 Moreover, Ocasio’s purported eligibility to adjust
19 status does not implicate any exception to the time limit for
20 filing a motion to reopen. See Matter of Yauri, 25 I. & N.
21 Dec. 103, 105 (BIA 2009) (emphasizing “that untimely motions
6
1 to reopen to pursue an application for adjustment of status
2 . . . do not fall within any of the statutory or regulatory
3 exceptions to the time limits for motions to reopen before
4 the [BIA]”). And Ocasio’s motion to reopen was not
5 accompanied by the relevant application for relief as
6 required by the regulations. See 8 C.F.R. § 1003.23(b)(3)
7 (“A motion to reopen proceedings . . . for the purpose of
8 acting on an application for relief must be accompanied by
9 the appropriate application for relief and all supporting
10 documents.”).
11 Sua Sponte Reopening
12 Ocasio has not challenged the denial of sua sponte
13 reopening in her brief. See Norton v. Sam’s Club, 145 F.3d
14 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in
15 the briefs are considered waived and normally will not be
16 addressed on appeal.”). Moreover, we lack jurisdiction to
17 review the agency’s “entirely discretionary” decision
18 declining to reopen sua sponte. Ali v. Gonzales, 448 F.3d
19 515, 518 (2d Cir. 2006).
20 Motion to Compel
21 We deny Ocasio’s counsel’s motion to compel the IJ to
7
1 grant him access to the hearing tapes. First, apart from
2 counsel’s representations, there is no evidence or statement
3 directly from Ocasio to contradict the IJ’s finding that she
4 and her counsel attended the May 2001 hearing where they
5 received notice of the next hearing date. Second, Ocasio’s
6 attorney should have filed a request directly with the IJ
7 assigned to the case along with a Form EOIR-28.
8 For the foregoing reasons, the petition for review is
9 DENIED. All pending motions and applications are DENIED and
10 stays VACATED.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe,
13 Clerk of Court
8