Rupa v. Holder

09-2602-ag
Rupa v. Holder
BIA
Montante, IJ
A098 220 639
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 9th day of February, two thousand eleven.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT D. SACK,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 JHAGESHWAR RUPA, AKA RAMESH NASSIAH,
14 Petitioner,
15
16 v. 09-2602-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL; DEPARTMENT OF HOMELAND
20 SECURITY,
21 Respondents.
22 _______________________________________
23
24 FOR PETITIONER: Stephen L. Rockmacher, Schenectady,
25 New York.
26
27 FOR RESPONDENTS: Tony West, Assistant Attorney General;
28 Daniel E. Goldman, Senior Litigation
29 Counsel; Brianne Whelan Cohen, Trial
30 Attorney, Office of Immigration
31 Litigation, Civil Division, United
32 States Department of Justice,
33 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Jhageshwar Rupa, a native and citizen of
6 Guyana, seeks review of a May 21, 2009, decision of the BIA,
7 affirming the September 24, 2007, decision of Immigration
8 Judge (“IJ”) Philip J. Montante, Jr., finding that he waived
9 the opportunity to apply for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Jhageshwar Rupa, No. A098 220 639 (B.I.A. May 21, 2009),
12 aff’g No. A098 220 639 (Immig. Ct. Buffalo Sept. 24, 2007).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history of the case.
15 Under the circumstances of this case, we review both the
16 IJ’s and the BIA’s decisions for the sake of completeness.
17 See Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). We
18 review an IJ’s decision regarding his discretionary authority
19 to set and extend time limits for filing applications for
20 relief for abuse of discretion. See Dedji v. Mukasey, 525
21 F.3d 187, 191 (2d Cir. 2008).
22 As an initial matter, Rupa has abandoned any challenge to
2
1 the IJ’s finding that he waived his application for asylum and
2 withholding of removal. See Yueqing Zhang v. Gonzales, 426
3 F.3d 540, 545 n.7 (2d Cir. 2005) (holding that issues not
4 sufficiently argued in the briefs are considered waived and
5 normally will not be addressed on appeal). Nor does Rupa
6 challenge the IJ’s decision with regard to his removability
7 and request for voluntary departure. Thus, we consider only
8 Rupa’s challenge to the IJ’s finding that Rupa waived the
9 opportunity to apply for CAT relief.
10 The agency did not abuse its discretion in finding that
11 Rupa’s request to apply for CAT relief was untimely. IJs have
12 broad discretion in calendar management and may set a filing
13 deadline for an application for relief. See Morgan v.
14 Gonzales, 445 F.3d 549, 551 (2d Cir. 2006) (holding that “IJs
15 are accorded wide latitude in calendar management, and [the
16 Court] will not micromanage their scheduling decisions any
17 more than when we review such decisions by district court
18 judges”). Here, Rupa did not indicate, either during his
19 interview with an Immigration and Customs Enforcement (“ICE”)
20 agent or at his initial hearing before the IJ, that he feared
21 any harm, much less torture, if he were compelled to return to
22 Guyana. Moreover, at his initial hearing, after his
3
1 application for cancellation of removal was denied, and the IJ
2 asked whether Rupa was seeking any other relief, Rupa replied,
3 “Not at this time.” The IJ then adjourned proceedings,
4 setting a date five months later for a hearing on whether Rupa
5 was removable and whether he should be accorded voluntary
6 departure, the only issues that had been raised at that time.
7 During that five-month interval, Rupa had every
8 opportunity to apply for additional relief or to alert the IJ
9 that he would be raising additional issues at the hearing. He
10 did not do so. Nor did he advise the IJ at the start of the
11 hearing, when the IJ repeated that the hearing would address
12 the legal issue of removability and the question of voluntary
13 departure, that he had any other issues to raise.
14 Only at the end of the hearing, after Rupa testified
15 about owing money to smugglers, did Rupa’s attorney aks for a
16 “credible fear hearing.” Only after government counsel
17 pointed out that such an interview was not procedurally
18 appropriate and that an application for asylum would be
19 untimely in any event did Rupa’s counsel mention the
20 possibility of CAT relief. He did not seek a continuance for
21 the purpose of making a further application for relief.
22 On this record, the IJ neither abused his discretion in
4
1 finding that Rupa’s request to file such an application at the
2 end of his merits hearing was untimely, see Dedji, 525 F.3d at
3 191, nor denied him a full and fair opportunity to submit an
4 application for relief, see Li Hua Lin v. U.S. Dept. of
5 Justice, 453 F.3d 99, 104-05 (2d Cir. 2006). The IJ had
6 offered Rupa every opportunity to apply for any relief for
7 which he might have been eligible, had granted a continuance
8 to permit Rupa ample time to prepare for a hearing and explore
9 any additional avenues of relief, and gave explicit notice,
10 both at the time the hearing was scheduled and at its opening,
11 as to the issues to be addressed. Only at the end of the
12 hearing, after Rupa had testified to the manner of his illegal
13 entry, and after abandoning his untimely suggestion of a
14 possible asylum claim, did Rupa’s counsel argue that “it’s not
15 too late to at least . . . make the CAT claim.” Even then,
16 after the IJ pointed out that Rupa had not established any
17 basis for such relief, Rupa made no effort to explain how he
18 could qualify for such relief, nor did he seek a continuance
19 to prepare an application or present additional evidence or
20 argument.
21 Additionally, the IJ reasonably determined that Rupa’s
22 proffered excuse, that his attorney had discovered Rupa’s
5
1 claimed fear only days before the merits hearing, did not
2 justify his failure to file an application for CAT relief at
3 some point prior to the conclusion of that hearing. Dedji,
4 525 F.3d at 192. Furthermore, as the IJ observed, given that
5 Rupa had not previously mentioned his claimed fear of
6 persecution or torture, either during his extensive interview
7 with an ICE agent or at his initial hearing before the IJ,
8 there appeared no credible basis for a CAT claim. The only
9 fear Rupa expressed at the hearing was a vague fear that if he
10 did not repay the smugglers, and he returned to Guyana, they
11 would look for him and “kill me or something.” Yet he also
12 expressed a similar fear that the smugglers would also seek
13 him out in Schenectady if he remained in the United States.
14 Accordingly, the IJ reasonably found that Rupa did not
15 demonstrate either good cause for his failure to timely file
16 an application for CAT relief or substantial prejudice, the IJ
17 did not abuse his discretion in finding that Rupa’s request to
18 apply for CAT relief was untimely and that any such
19 application was waived. See id.
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of removal
22 that the Court previously granted in this petition is VACATED,
6
1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
7
7