Persaud v. Holder

11-2267-ag
Persaud v. Holder
BIA
Vomacka, IJ
A097 385 394
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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 23rd day of August, two thousand twelve.
PRESENT:
BARRINGTON D. PARKER,
RICHARD C. WESLEY,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
YADESHVARI PERSAUD, AKA MALLINI
MICHELLE SAMSOONDAR,
Petitioner,
v. 11-2267-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Judy Resnick, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Luis E. Perez, Senior
Litigation Counsel; Joseph D. Hardy,
Trial Attorney, Civil Division,
Office of Immigration Litigation,
U.S. Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Petitioner Yadeshvari Persaud, a native and citizen of
Guyana, seeks review of the May 18, 2011 order of the BIA
summarily dismissing her appeal from the March 25, 2010
decision of an Immigration Judge (“IJ”) denying her motion
to reopen. In re Yadeshvari Persaud, No. A097 385 394
(B.I.A. May 18, 2011), aff’g No. A097 385 394 (Immig. Ct.
N.Y. City Mar. 25, 2010). We assume the parties’
familiarity with the underlying facts and procedural history
of the case.
Although we have not articulated a standard of review
for summary dismissals by the BIA, we find it unnecessary to
do so now because the BIA’s decision withstands scrutiny
under either an abuse of discretion or de novo standard of
review. Compare, e.g., Singh v. Gonzales, 416 F.3d 1006,
1009 (9th Cir. 2005) (reviewing BIA summary dismissal for
abuse of discretion), with Awe v. Ashcroft, 324 F.3d 509,
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513 (7th Cir.2003) (discussing propriety of BIA’s summary
dismissal without articulating a standard of review). The
BIA’s decision rested upon its regulatory authority
“summarily [to] dismiss any appeal or portion of any appeal
in any case in which: (A) The party concerned fails to
specify the reasons for the appeal on Form EOIR-26 . . . or
other document filed therewith .” 8 C.F.R.
§ 1003.1(d)(2)(i)(A).
Here, Persaud’s assertion in her Form EOIR-26 that
“[t]he Immigration Judge erred as a matter of law in denying
the motion to reopen since Respondent never received notice
of the hearing in which she was removed” falls short of the
standard for specificity that would preclude the BIA from
dismissing the appeal summarily. See 8 C.F.R. § 1003.3(b);
see also Matter of Valencia, 19 I. & N. Dec. 354, 355
(B.I.A. 1986). And, while Persaud filed a brief with the
BIA, that brief similarly fails to state any specific legal
or factual challenge to the IJ’s findings or refer to any
evidence or authority in support of her conclusory
assertions that “she was never served with Notice of the
Hearing” and that her motion to reopen should have been
granted because of the “future persecution that she would
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suffer if she returned to Guyana.” See 8 C.F.R.
§ 1003.1(d)(2)(i)(A); see also Matter of Valencia, 19 I. &
N. Dec. at 355 (“[I]t should be stated whether the error
[alleged] relates to grounds of statutory eligibility or to
the exercise of discretion . . . Where a question of law is
presented, supporting authority should be included, and
where the dispute is on the facts, there should be a
discussion of the particular details contested.”). Cf.
Casas-Chavez v. INS, 300 F.3d 1088, 1090-91 (9th Cir. 2002)
(summary dismissal not appropriate where alien directed BIA
to specific portions of IJ’s decision, and referred to
evidence and authority in support of arguments).
Accordingly, we find no error in the BIA’s summary dismissal
of Persaud’s appeal.* See 8 C.F.R. § 1003.1(d)(2)(i)(A).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
The pending request for oral argument in this petition is
*
We decline review of the additional issues Persaud
raises in her brief on appeal, because they have not been
first presented to the BIA. See Steevenez v. Gonzales, 476
F.3d 114, 117 (2d Cir. 2007) (noting that “[t]o preserve an
issue for judicial review, the petitioner must first raise
it with specificity before the BIA”).
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DENIED in accordance with Federal Rule of Appellate
Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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