Bustillo-Veliz v. Garland
This text of Bustillo-Veliz v. Garland (Bustillo-Veliz v. Garland) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
19-4213 Bustillo-Veliz v. Garland BIA Poczter, IJ A200 891 107 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 20th day of December, two thousand twenty-one. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROBERT D. SACK, 9 REENA RAGGI, 10 Circuit Judges. 11 _____________________________________ 12 13 MARLA YULISSA BUSTILLO-VELIZ, 14 AKA MARLA LUISA BUSTILLO-VELIZ, 15 Petitioner, 16 17 v. 19-4213 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Bruno Joseph Bembi, Esq., 25 Hempstead, NY. 26 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; 1 Melissa Neiman-Kelting, Assistant 2 Director; Jessica A. Dawgert, 3 Senior Litigation Counsel, Office 4 of Immigration Litigation, United 5 States Department of Justice, 6 Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED in part and DISMISSED in part.
11 Petitioner Marla Yulissa Bustillo-Veliz (“Bustillo”), a
12 native and citizen of Honduras, seeks review of a November
13 29, 2019, decision of the BIA affirming a May 17, 2018,
14 decision of an Immigration Judge (“IJ”) denying her motion to
15 reopen her removal proceedings. In re Marla Yulissa Bustillo-
16 Veliz, No. A 200 891 107 (B.I.A. Nov. 29, 2019), aff’g No. A
17 200 891 107 (Immig. Ct. N.Y. City May 17, 2018). We assume
18 the parties’ familiarity with the underlying facts and
19 procedural history.
20 Because the BIA summarily affirmed the IJ’s decision, we
21 have reviewed the IJ’s decision as the final agency
22 determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146
23 (2d Cir. 2008). We review the denial of a motion to reopen
24 for abuse of discretion. See Jian Hui Shao v. Mukasey, 546
2 1 F.3d 138, 168-69 (2d Cir. 2008).
2 We distinguish between motions to reopen to apply for
3 relief from removal based on new evidence and motions to
4 rescind an in absentia removal order. Alrefae v. Chertoff,
5 471 F.3d 353, 357 (2d Cir. 2006). A motion to reopen
6 generally must be filed no later than 90 days after the date
7 on which the final administrative decision was rendered.
8 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1).
9 Absent timely filing, the agency has the discretion to reopen
10 sua sponte in exceptional circumstances. 8 C.F.R.
11 § 1003.23(b) (2019); In re G-D-, 22 I. & N. Dec. 1132, 1133–
12 34 (B.I.A. 1999). In contrast, as relevant here, an in
13 absentia removal order may be rescinded by a motion filed
14 (1) no later than 180 days after the order is entered “if the
15 alien demonstrates that [her] failure to appear was because
16 of exceptional circumstances,” or (2) at any time, if the
17 alien demonstrates that she did not receive notice of the
18 hearing. 8 U.S.C. § 1229a(b)(5)(C); see also 8 C.F.R.
19 § 1003.23(b)(4)(ii).
20 Bustillo filed her motion to reopen in 2018, seven years
21 after the 2011 in absentia order, and she did not explain her
3 1 failure to appear at the 2011 hearing or allege in her motion
2 that she did not receive notice of the hearing. Accordingly,
3 the motion was untimely whether construed as a motion to
4 reopen or a motion to rescind. See 8 U.S.C. § 1229a(b)(5)(C),
5 (c)(7)(C)(i). Her alleged eligibility for asylum,
6 withholding of removal, and relief under the Convention
7 Against Torture (“CAT”) did not excuse the untimely filing
8 because her claim was not based on a change in conditions in
9 Honduras—rather, she alleged a fear of harm based on a rape
10 that occurred before she came to the United States and danger
11 to her children who were born in the United States. 1 See
12 8 U.S.C. § 1229a(c)(7)(C)(ii)–(iv) (listing exceptions);
13 8 C.F.R. § 1003.23(b)(4) (same); Li Yong Zheng v. U.S. Dep’t
14 of Justice, 416 F.3d 129, 130–31 (2d Cir. 2005) (providing
15 that changed personal circumstances do not excuse the time
16 limitation for motions to reopen). We do not reach her
17 arguments regarding lack of notice because she did not raise
18 them before the IJ or on appeal to the BIA. See Lin Zhong v.
1Although changed country conditions that materially impact a movant’s eligibility for asylum may excuse the time limitation, Bustillo did not assert such conditions in her motion. 8 U.S.C. § 1003.23(b)(4)(i). 4 1 U.S. Dep’t of Justice, 480 F.3d 104, 107, 120 (2d Cir. 2007).
2 We otherwise lack jurisdiction to review the IJ’s
3 “entirely discretionary” decision not to reopen sua sponte.
4 Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). Although
5 we may remand “where the Agency may have declined to exercise
6 its sua sponte authority because it misperceived the legal
7 background and thought, incorrectly, that a reopening would
8 necessarily fail,” that is not the case here. Mahmood v.
9 Holder, 570 F.3d 466, 469 (2d Cir. 2009). The IJ cited and
10 applied the correct legal standard, i.e., that she could
11 reopen sua sponte despite the time limitation only in
12 exceptional circumstances. See In re G-D-, 22 I. & N. Dec.
13 1133–34. And the IJ did not misperceive the law in concluding
14 that there was a one-year deadline for asylum applications,
15 that withholding of removal required more than a showing that
16 an applicant had been the victim of a crime, and that a CAT
17 applicant had a heavy burden. See 8 U.S.C.
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