Heitor v. Barr ( 2020 )

17-3219
Heitor v. Barr
BIA
Straus, IJ
A078 323 092
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 2nd day of December, two thousand twenty.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 REENA RAGGI,
10 JOSEPH F. BIANCO,
11 Circuit Judges.
12 _____________________________________
13
14 ERITON JOABIS HEITOR,
15 Petitioner,
16
17 v. 17-3219
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Glenn L. Formica, New Haven, CT.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
27 General; Song Park, Senior
28 Litigation Counsel; Micah Engler,
1 Trial Attorney, Office of
2 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 Eriton Joabis Heitor, a native and citizen of
10 Brazil, seeks review of a September 14, 2017, decision of the
11 BIA affirming a May 24, 2017, decision of an Immigration Judge
12 (“IJ”) denying Heitor’s motion to reopen proceedings and
13 rescind his in absentia removal order. In re Eriton Joabis
14 Heitor, No. A 078 323 092 (B.I.A. Sept. 14, 2017), aff’g No.
15 A 078 323 092 (Immig. Ct. Hartford May 24, 2017). Heitor
16 separately moves for remand to the BIA for consideration of
17 his argument that the immigration court lacked authority to
18 order his removal in light of Pereira v. Sessions, 138 S. Ct.
19 2105 (2018). We assume the parties’ familiarity with the
20 underlying facts and procedural history in this case.
21 As an initial matter, there is no merit to Heitor’s
22 argument, raised in his motion to remand, that he is entitled
23 to relief under Pereira. To the extent that he argues that
2
1 his Notice to Appear (“NTA”) was insufficient to vest
2 jurisdiction in the immigration court under Pereira, his
3 argument is foreclosed by our decision in Banegas-Gomez v.
4 Barr, in which we held that Pereira does not “void
5 jurisdiction in cases in which an NTA omits a hearing time or
6 place” and that an NTA lacking this information is sufficient
7 to vest jurisdiction “so long as a notice of hearing
8 specifying this information is later sent to the alien.” 922
9 F.3d 101, 110, 112 (2d Cir. 2019) (emphasis omitted).
10 Although Heitor’s April 2001 NTA did not specify the time and
11 date of his initial hearing, he was personally served with a
12 notice providing a hearing date of May 9, 2001—and he attended
13 that hearing. To the extent that he relies on Pereira to
14 argue that he could not have been expected to attend his
15 hearings because of the alleged NTA defect, this argument
16 fails because he appeared at his initial hearing.
17 Heitor’s challenges to the agency’s denial of his motion
18 to rescind his in absentia removal order are also without
19 merit. We have reviewed the IJ’s decision denying the motion
20 to rescind as supplemented by the BIA. See Chen v. Gonzales,
21 417 F.3d 268, 271 (2d Cir. 2005). We review the denial of a
3
1 motion to rescind or reopen for abuse of discretion. Alrefae
2 v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). As relevant
3 here, the agency may rescind an in absentia removal order if
4 the alien demonstrates that he lacked notice of the hearing
5 or, if rescission is requested within 180 days, “if the alien
6 demonstrates that the failure to appear was because of
7 exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C); see
8 8 C.F.R. § 1003.23(b)(4)(ii).
9 The agency did not abuse its discretion in finding that
10 Heitor received adequate notice of the hearing where he failed
11 to appear. If, as here, notice is “served via regular mail”
12 rather than certified mail, there is “a ‘less stringent,
13 rebuttable presumption’ of receipt.” Silva-Carvalho Lopes
14 v. Mukasey, 517 F.3d 156, 159 (2d Cir. 2008) (quoting Alrefae,
15 471 F.3d at 359). The agency “must consider all of the
16 petitioner’s evidence (circumstantial or otherwise) in a
17 practical fashion, guided by common sense, to determine
18 whether the slight presumption of receipt of regular mail has
19 more probably than not been overcome.” Id. at 160. However,
20 for aliens who receive notice of their obligation to inform
21 the immigration court of any change in address and of the
4
1 consequences of failing to do so, the “requirement that an
2 alien ‘receive’ notice [is] constructively satisfied if
3 notice is properly provided and the alien changes address
4 without informing” the agency. Maghradze v. Gonzales, 462
5 F.3d 150, 154 (2d Cir. 2006); see 8 U.S.C. § 1229(a).
6 Here, the record reflects that Heitor did not actually
7 receive notice of the hearing because the notice was returned
8 as undeliverable. But this fact is not dispositive because
9 the NTA, which Heitor did receive, provided notice of his
10 obligation to update his address with the immigration court
11 if he moved. Maghradze, 462 F.3d at 154. The agency did not
12 abuse its discretion in finding that the notice was properly
13 provided to the address in the record, and that Heitor
14 effectively “thwarted delivery” because he did not
15 demonstrate that he was living or receiving mail at that
16 address. Id. Heitor affirmed that he moved to the Hartford
17 address after he was released on bond, but he did not provide
18 any information about how long he remained there or whether
19 he ever received mail there. The record indicates that
20 Heitor did eventually move, but not that he informed the
21 agency of his new address; to the contrary, Heitor asserted
5
1 in his affidavit that he was not aware of his obligation to
2 do so. Because counsel’s statement in a brief is not
3 evidence, the BIA properly discounted Heitor’s attorney’s
4 assertion on appeal that Heitor lived at the address he had
5 provided the agency for one year. See Pretzantzin v. Holder,
6 736 F.3d 641, 651 (2d Cir. 2013). The address on the enclosed
7 hearing notice was correct, and the Government is entitled to
8 a presumption that the agency properly addressed the
9 envelope. See Nat’l Archives and Records Admin. v. Favish,
10 541 U.S. 157, 174 (2004) (discussing, in the context of a
11 FOIA application, the presumption that government officials
12 have properly performed their duties). The USPS endorsement
13 indicates that Heitor was not known at the address, not that
14 the address was illegible or that delivery at the address of
15 record could not otherwise be attempted. Circumstantial
16 evidence in the record that Heitor might not have thwarted
17 delivery is not compelling: Heitor appeared at a previous
18 hearing, but he was detained at the time; and although Heitor
19 now asserts that he had an incentive to appear because he has
20 a meritorious asylum claim, he did not attempt to pursue it
21 for more than 15 years and it is not a strong claim—abuse at
6
1 the hands of his father does not appear to implicate a
2 protected ground as needed to state an asylum claim. See 8
3 U.S.C. § 1101(a)(42); cf. Matter of M-R-A-, 24 I. & N. Dec.
4 665, 674 (BIA 2008) (describing evidence that may be relevant
5 to rebutting the presumption that a notice sent by regular
6 mail was delivered, including appearances at prior hearings
7 and evidence that the alien is eligible for relief from
8 removal). Accordingly, the agency did not abuse its
9 discretion in finding that Heitor had constructive notice of
10 his hearing.
11 The agency also did not abuse its discretion in denying
12 Heitor’s motion to the extent he alleged exceptional
13 circumstances because he did not file his motion within 180
14 days of his removal order. See 8 U.S.C. § 1229a(b)(5)(C)(i);
15 8 C.F.R. § 1003.23(b)(4)(ii). Heitor was ordered removed in
16 2002, and he did not move to reopen until 2017. Even if the
17 motion were timely, Heitor’s assertion of past abuse is not
18 a basis to rescind an in absentia order because he did not
19 demonstrate that his “failure to appear was because of” these
20 circumstances. 8 C.F.R. § 1003.23(b)(4)(ii) (emphasis
21 added).
7
1 Finally, Heitor does not challenge the agency’s denial
2 of sua sponte reopening and has therefore waived review of
3 that issue. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
4 n.1 (2d Cir. 2005) (finding claim not raised in brief
5 abandoned).
6 For the foregoing reasons, the petition for review is
7 DENIED. All pending motions and applications are DENIED and
8 stays VACATED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe,
11 Clerk of Court
8