Hansa Persad v. Eric H. Holder, Jr. , 381 F. App'x 622 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3266
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Hansa Persad, *
*
Petitioner, *
* On Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
Eric H. Holder, Jr., Attorney *
General of the United States, *
* [UNPUBLISHED]
Respondent. *
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Submitted: June 14, 2010
Filed: June 18, 2010
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Before MURPHY, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
Hansa Persad, a native and citizen of Trinidad and Tobago, petitions for review
of a decision by the Board of Immigration Appeals (BIA) affirming an order of the
Immigration Judge (IJ) denying his motion to reopen removal proceedings conducted
in absentia. We deny the petition.
On July 18, 2003 Petitioner failed to appear for his master calendar hearing and
was found removable in absentia. In 2004 he made his first motion to reopen,
claiming lack of proper service of the notice regarding the immigration proceedings.
The IJ denied the motion to reopen, finding that he was sent proper notice and had
signed for the notice which was sent via certified mail. Petitioner appealed the IJ’s
denial in 2005 and the BIA adopted and affirmed the decision. He did not seek further
review before this court, and failed to leave the country. On February 17, 2009, after
Petitioner’s detention by the Immigration and Customs Enforcement, he filed a second
motion to reopen his in absentia order. The BIA denied this second motion to reopen
as number barred. The BIA noted an alien is allowed only one motion to reopen and
rescind an in absentia order of removal and that Petitioner’s second motion to reopen
alleged the same claim raised in his first motion five years earlier. INA § 240(c)(7)(a);
8 U.S.C. § 1229a(c)(7)(a).
Petitioner argues the BIA abused its discretion in denying Petitioner’s second
motion to reopen his in absentia removal order and that he was denied due process of
law in the removal proceedings. We review the BIA’s denial of a motion to reopen
for abuse of discretion. INS v. Doherty, 502 U.S. 314, 324 (1992); Aneyoue v.
Gonzales, 478 F.3d 905, 907 (8th Cir. 2007). Because an alien may file only one
motion to reopen his removal proceedings, the BIA did not abuse its discretion in
denying Petitioner’s second motion. Sabhari v. Mukasey, 522 F.3d 842, 844 (8th Cir.
2008); INA § 240(c)(7)(a); 8 U.S.C. § 1229a(c)(7)(a).
There is also no merit to Petitioner’s constitutional challenge under the due
process clause. The INA plainly provides the exact steps required to establish
improper notice. See INA § 240(b)(5)(C)(ii), 8 U.S.C. § 1229a(b)(5)(C)(ii). Petitioner
was represented by counsel and had a fair opportunity to present his case in his
original appeal in 2005. He failed to file a petition for review within thirty days of
that decision and therefore is not entitled to review of the merits of his in absentia
removal order. White v. INS, 6 F.3d 1312, 1318 (8th Cir. 1993); 8 U.S.C.
§1252(b)(1).
Accordingly, we deny the petition for review.
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