Alvarez Polanco v. Barr

18-2789
Alvarez Polanco v. Barr
BIA
Ruehle, IJ
A074 728 635
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 30th day of September, two thousand twenty.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 ROBERT D. SACK,
9 MICHAEL H. PARK,
10 Circuit Judges.
11 _____________________________________
12
13 OLGA MARINA ALVAREZ POLANCO,
14 Petitioner,
15
16 v. 18-2789
17 NAC
18
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24
25 FOR PETITIONER: Yaniv Lavy, New York, NY
26
27 Rakhvir Dhanoa, New York, NY.
28 (on the Brief)
29
30 FOR RESPONDENT: Joseph H. Hunt, Assistant
31 Attorney General (Anthony P.
32 Nicastro, Assistant Director;
1 Sheri R. Glaser, Trial Attorney,
2 Office of Immigration Litigation,
3 on the brief) for William P. Barr,
4 United States Attorney General,
5 United States Department of
6 Justice, Washington, DC.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Olga Marina Alvarez Polanco, a native and
13 citizen of Guatemala, seeks review of a September 4, 2018,
14 decision of the BIA affirming the March 15, 2018, decision of
15 an Immigration Judge (“IJ”) denying her motion to rescind her
16 removal order and reopen her removal proceedings. In re Olga
17 Marina Alvarez Polanco, No. A074 728 635 (B.I.A. Sept. 4,
18 2018), aff’g No. A074 728 635 (Immig. Ct. Buffalo Mar. 15,
19 2018). We assume the parties’ familiarity with the
20 underlying facts and procedural history.
21 We have reviewed the IJ’s decision as supplemented by
22 the BIA. See Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
23 2005). When, as here, an alien seeks both rescission of an in
24 absentia removal order and reopening of removal proceedings
2
1 to apply for relief from removal, we treat the request as
2 “comprising distinct motions to rescind and to reopen.”
3 Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); see
4 also Maghradze v. Gonzales, 462 F.3d 150, 152 n.1 (2d Cir.
5 2006). When the BIA has applied the correct law, we review
6 the denial of a motion to rescind an in absentia removal order
7 under the same abuse of discretion standard applicable to
8 motions to reopen. See Maghradze, 462 F.3d at 152.
9 Motion to Rescind
10 The agency did not abuse its discretion in denying
11 Alvarez Polanco’s motion to rescind. An order of removal
12 entered in absentia may be rescinded “upon a motion to reopen
13 filed at any time if the alien demonstrates that the alien
14 did not receive notice . . . and the failure to appear was
15 through no fault of the alien.” 8 U.S.C.
16 § 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(ii).
17 Alvarez Polanco received notice of her February 2000
18 hearing in September 1999 when she was personally served with
19 and signed a notice to appear, which placed her in removal
20 proceedings, informed her of her hearing date, time, and
21 location, and informed her that she could be ordered removed
3
1 in absentia if she failed to appear. See 8 U.S.C. § 1229(a)(1)
2 (listing requirements for notices to appear). This Circuit
3 has rejected Alvarez Polanco’s argument that a notice to
4 appear must be provided in a noncitizen’s native language.
5 See Lopes v. Gonzales, 468 F.3d 81, 84–85 (2d Cir. 2006).
6 Alvarez Polanco failed to exhaust her contention that
7 rescission was required under Rojas v. Johnson, 305 F. Supp.
8 3d 1176 (W.D. Wash. 2018), and Orantes-Hernandez v. Gonzales,
9 504 F. Supp. 2d 825 (C.D. Cal. 2007) by failing to raise the
10 issue before the BIA. See Lin Zhong v. U.S. Dep’t of Justice,
11 480 F.3d 104, 122–23 (2d Cir. 2007) (discussing statutory and
12 judicial exhaustion). Even if she had raised the issue before
13 the BIA, those cases are inapplicable because they do not
14 address the issue of proper service of a notice to appear for
15 purposes of a motion to rescind an in absentia removal order.
16 Accordingly, because Alvarez Polanco was personally
17 served with a notice to appear providing her notice of her
18 hearing and informing of the consequences of failing to
19 appear, the agency did not abuse its discretion in denying
20 her motion to rescind her in absentia removal order. See
21
4
1 8 U.S.C. §§ 1229(a)(1), 1229a(b)(5)(C)(ii); see also Lopes,
2 468 F.3d at 84–85.
3 Motion to Reopen
4 The agency also did not abuse its discretion in denying
5 Alvarez Polanco’s motion to reopen. It is undisputed that her
6 2018 motion to reopen was untimely because it was filed 18
7 years after she was ordered removed in 2000, and she failed
8 to assert that any changed country conditions evidence was
9 material. See 8 U.S.C. § 1229a(c)(7)(C)(i)–(ii) (providing
10 90-day deadline for filing motion to reopen and changed
11 country conditions exception for asylum applicants); see also
12 8 C.F.R. § 1003.23(b)(1), (4). The BIA also did not err in
13 declining to consider Alvarez Polanco’s evidence submitted
14 for the first time on appeal, or in refusing to remand because
15 that evidence was previously available. See 8 C.F.R.
16 § 1003.1(d)(3)(iv); see also Li Yong Cao v. U.S. Dep’t of
17 Justice, 421 F.3d 149, 156 (2d Cir. 2005) (providing that
18 failure to proffer material and previously unavailable
19 evidence is a permissible ground for the BIA to decline to
20 remand).
21
5
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe,
5 Clerk of Court
6