Ji-Can Shih v. Holder

08-4906-ag
Shih v. Holder
BIA
Weisel, IJ
A072 054 355
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 11 th day of February, two thousand ten.
5
6 PRESENT:
7 JOHN M. WALKER, Jr.,
8 JOSÉ A. CABRANES,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _______________________________________
12
13 JI-CAN SHIH, ALSO KNOWN AS JI CAN CHI,
14 Petitioner,
15
16 v. 08-4906-ag
17 NAC
18 ERIC H. HOLDER, JR., 1 UNITED STATES
19 ATTORNEY GENERAL, UNITED STATES
20 DEPARTMENT OF HOMELAND SECURITY,
21 Respondents.
22 _______________________________________
23
24 FOR PETITIONER: Yee Ling Poon, New York, New York.
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as a respondent in this case.
1 FOR RESPONDENTS: Michael F. Hertz, Acting Assistant
2 Attorney General, Civil Division, Susan
3 K. Houser, Senior Litigation Counsel,
4 Gary J. Newkirk, Trial Attorney, Office
5 of Immigration Litigation, U.S.
6 Department of Justice, Washington, D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 decision of the Board of Immigration Appeals (“BIA”), it is
4 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
5 review is DENIED.
6 Ji-Can Shih, a native and citizen of China, seeks
7 review of the September 16, 2008, order of the BIA: (1)
8 affirming the May 5, 2006, decision of Immigration Judge
9 (“IJ”) Robert D. Weisel; and (2) denying his motion to
10 remand. In re Ji-Can Shih, No. A72 054 355 (B.I.A. Sept.
11 16, 2008) aff’g No. A72 054 355 (Immig. Ct. N.Y. City May 5,
12 2006). We assume the parties’ familiarity with the
13 underlying facts and procedural history of the case.
14 When, as here, an alien files a motion that seeks both
15 rescission of an in absentia exclusion order, as well as
16 reopening of exclusion proceedings based on new evidence,
17 the Court treats the motion as comprising distinct motions
18 to rescind and to reopen. See Alrefae v. Chertoff, 471 F.3d
19 353, 357 (2d Cir. 2006); see also Maghradze v. Gonzales, 462
2
1 F.3d 150, 152 n.1 (2d Cir. 2006). We address each motion in
2 turn.
3 A. Motion to Rescind
4 When an IJ orders an alien excluded in absentia, there
5 is no time limit on filing a motion to rescind if the alien
6 demonstrates “reasonable cause” for her failure to appear.
7 See 8 C.F.R. § 1003.23(b)(4)(iii)(B) (providing that, “a
8 motion to reopen exclusion hearings on the basis that the
9 [IJ] improperly entered an order of exclusion in absentia
10 must be supported by evidence that the alien had reasonable
11 cause for [her] failure to appear”); Matter of N-B-, 22 I &
12 N Dec. 590 (BIA 1999); Matter of Ruiz, 20 I & N Dec. 91, 92-
13 93. The BIA did not err in finding that Shih failed to
14 demonstrate “reasonable cause” for his failure to appear at
15 his November 1992 merits hearing. See 8 C.F.R.
16 § 1003.23(b)(4)(iii)(B). As the BIA noted, Shih conceded
17 that he received written notice of the hearing date. He
18 argued, however, that rescission was appropriate because the
19 travel agency he had retained to help him had not verbally
20 advised him of the hearing date. The BIA acted well within
21 its discretion in concluding that this did not constitute
22 reasonable cause for his failure to appear.
3
1 B. Motion to Reopen
2 The BIA also did not abuse its discretion in denying
3 Shih’s motion to reopen. The regulations provide that “[a]
4 party may file only one motion to reopen deportation or
5 exclusion proceedings . . . and that motion must be filed no
6 later than 90 days after the date on which the final
7 administrative decision was rendered in the proceeding
8 sought to be reopened, or on or before September 30, 1996,
9 whichever is later.” 8 C.F.R. § 1003.2(c)(2).
10 Indisputably, Shih’s May 2005 motion was untimely because he
11 filed it more than twelve years after the IJ’s November 1992
12 in absentia order. However, the time limitation does not
13 apply when the alien can establish materially “changed
14 country conditions arising in the country of nationality.”
15 8 C.F.R. § 1003.2(c)(3)(ii).
16 Shih based his motion to reopen before the IJ on
17 changed circumstances, i.e., the birth of his two U.S.-
18 citizen children and his wife’s imputed political opinion.
19 In addition to finding that Shih had not established changed
20 country conditions, the BIA found that even if he had, it
21 would deny his motion as a matter of discretion. See INS v.
22 Abudu, 485 U.S. 94, 105 (1988) (finding that “in cases in
4
1 which the ultimate grant of relief is discretionary,” the
2 agency may jump ahead and determine that the movant would
3 not be entitled to discretionary relief); see also 8 C.F.R.
4 § 1003.2(a) ( “The Board has discretion to deny a motion to
5 reopen even if the party moving has made out a prima facie
6 case for relief.”); 8 C.F.R. § 1003.23(b)(3). The BIA based
7 its discretionary denial on: (1) Shih’s statement during his
8 credible fear interview that he had killed someone in
9 China; 2 (2) the fact that Shih had “purposefully” ignored
10 the voluntary departure order issued in connection with his
11 deportation proceedings under another alien number; and (3)
12 Shih’s failure to exercise due diligence in pursuing his
13 “immigration status.” Despite Shih’s arguments to the
14 contrary, we find no abuse of discretion in the agency’s
15 findings.
16 C. Motion to Remand
17 In addition to his motion to reopen and rescind, Shih
18 filed a motion to remand based on: (1) his potential
19 eligibility to adjust his status in light of his wife’s
2
Although Shih later recanted that statement, the
BIA reasonably found that he had either killed someone or
lied and said that he did in order to obtain an
immigration benefit--i.e., asylum.
5
1 pending adjustment application; and (2) his argument that
2 the IJ had denied his motion to reopen without allowing
3 sufficient time for further briefing. As to the former,
4 because the ability to adjust one’s status is not an
5 exception to the statutory filing deadline for a motion to
6 reopen, see 8 U.S.C. § 1229a(c)(7)(C)(ii), an alien seeking
7 reopening on that basis in an untimely motion to reopen is
8 invoking the BIA’s authority to reopen proceedings sua
9 sponte, 8 C.F.R. § 1003.2(a). The BIA’s exercise of its sua
10 sponte authority is a matter entirely within its discretion
11 and, thus, beyond the scope of our jurisdiction. See Azmond
12 Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). As to
13 the latter argument, Shih is correct that the BIA ignored
14 it. However, even if this was an error, it was a harmless
15 one. Cf. Dedji v. Mukasey, 525 F.3d 187, 192 (2d Cir. 2008)
16 (holding that “IJs are accorded wide latitude in calendar
17 management,” and the Court “will not micromanage their
18 scheduling decisions any more than when [it] review[s] such
19 decisions by district judges”). Because Shih offered no
20 proper basis for reopening, the IJ’s refusal to allow
21 further briefing was permissible, and remand on this basis
22 would be futile. See Xiao Ji Chen v. U.S. Dep’t of Justice,
6
1 471 F.3d 315, 335 (2d Cir. 2006) (finding that remand would
2 be futile if it can be confidently predict that the IJ would
3 reach the same decision were the case remanded).
4 Accordingly, the BIA did not abuse its discretion in
5 denying his motion to remand. Li Yong Cao v. Dep't of
6 Justice, 421 F.3d 149, 151 (2d Cir. 2005); see Kaur v. BIA,
7 413 F.3d 232, 233 (2d Cir. 2005).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot . Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
7