18-483 Czyz v. Barr BIA A073 592 994
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 12th day of August, two thousand twenty. 5 6 PRESENT: 7 DENNIS JACOBS, 8 ROSEMARY S. POOLER, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 SEBASTIAN CZYZ, 14 Petitioner, 15 16 v. 18-483 17 NAC 18 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Dana R. Bucin, Barry J. Waters, 25 Murtha Cullina LLP, Hartford, CT. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant 28 Attorney General; Rebekah Nahas, 29 Katherine A. Smith, Trial 30 Attorneys, Office of Immigration 31 Litigation, United States 32 Department of Justice, Washington, 33 DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the motion to hold the
4 petition for review in abeyance and the petition for review
5 are DENIED.
6 Petitioner Sebastian Czyz, a native and citizen of
7 Poland, seeks review of a February 12, 2018, decision of the
8 BIA, denying his motion to reopen. In re Sebastian Czyz, No.
9 A073 592 994 (B.I.A. Feb. 12, 2018). We assume the parties’
10 familiarity with the underlying facts and procedural history.
11 Motion to Reopen
12 The applicable standards of review are well established.
13 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.
14 2008). It is undisputed that Czyz’s 2017 motion to reopen
15 was untimely because it was filed more than 18 years after
16 his 1999 removal order. See 8 U.S.C. § 1229a(c)(7)(C)(i)
17 (“[T]he motion to reopen shall be filed within 90 days of the
18 date of entry of a final administrative order of removal.”);
19 8 C.F.R. § 1003.2(c)(2) (same).
20 Ineffective assistance of counsel can be a basis for
21 equitable relief from the time limitation on motions to
22 reopen. See Iavorski v. U.S. INS, 232 F.3d 124, 127 (2d Cir. 2 1 2000). The BIA found Czyz’s ineffective assistance claim
2 foreclosed because he failed to comply with Matter of Lozada,
3 19 I. & N. Dec. 637, 639 (BIA 1988), which requires a movant
4 to file an affidavit detailing his agreement with former
5 counsel and submit proof that he notified former counsel and
6 the proper disciplinary authority of his allegations. Czyz
7 does not challenge that finding in his brief and thus we need
8 not consider it. See Yueqing Zhang v. Gonzales, 426 F.3d
9 540, 541 n.1, 545 n.7 (2d Cir. 2005).
10 Regardless, the BIA did not err. In his motion, Czyz
11 stated that he would file the affidavit required by Lozada,
12 but he did not do so. See Lozada, 19 I. & N. Dec. at 639.
13 That was particularly problematic because his motion did not
14 specify how his former attorneys were ineffective.
15 Sua Sponte Reopening Authority
16 Because Czyz did not demonstrate that the time limitation
17 applicable to his motion should be excused, “his motion to
18 reopen could only be considered upon exercise of the [BIA’s]
19 sua sponte authority.” Mahmood v. Holder, 570 F.3d 466, 469
20 (2d Cir. 2009). We lack jurisdiction to review the agency’s
21 “entirely discretionary” decision declining to reopen
22 proceedings sua sponte. Ali v. Gonzales, 448 F.3d 515, 518 3 1 (2d Cir. 2006). However, “where the Agency may have declined
2 to exercise its sua sponte authority because it misperceived
3 the legal background and thought, incorrectly, that a
4 reopening would necessarily fail, remand to the Agency for
5 reconsideration in view of the correct law is appropriate.”
6 Mahmood, 570 F.3d at 469.
7 Czyz has not shown that the BIA misperceived the law in
8 declining to reopen sua sponte. He argues that when the
9 agency revoked his lawful permanent resident status as
10 improvidently granted, it should have returned him to his
11 prior status as a nonimmigrant student. The BIA did not err
12 in declining to reopen sua sponte to revisit the issue of
13 Czyz’s removability because he had conceded that he was
14 removable after his permanent resident status was revoked 19
15 years earlier and he was bound by that concession. See In
16 re G-D-, 22 I. & N. Dec. 1132, 1133–34 (BIA 1999) (“[W]e
17 invoke our sua sponte authority sparingly, treating it not as
18 a general remedy for any hardships created by enforcement of
19 the time and number limits in the motions regulations, but as
20 an extraordinary remedy reserved for truly exceptional
21 situations.”); see also Hoodho v. Holder, 558 F.3d 184, 192
22 (2d Cir. 2009) (recognizing that noncitizens are bound by an 4 1 attorney’s concession of removability). Czyz does not
2 otherwise challenge the BIA’s decision declining to reopen
3 sua sponte.
4 Motion to Hold Petition in Abeyance
5 Czyz moves to hold his petition in abeyance pending
6 decision by the BIA on his third motion to reopen. We decline
7 to do so because he is not likely to succeed on his motion to
8 reopen or in a petition for review from the denial of that
9 motion. In his motion to reopen, Czyz argues that the Supreme
10 Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105
11 (2018), renders him eligible for cancellation of removal and
12 invalidates his Notice to Appear (“NTA”) because his NTA
13 omitted the hearing date and time.
14 In Pereira, the Supreme Court held that the Immigration
15 and Nationality Act unambiguously requires an NTA to include
16 a hearing date and time to trigger the “stop-time rule,” 138
17 S. Ct. at 2113–20, which cuts off an alien’s accrual of
18 physical presence or residence for the purposes of qualifying
19 for cancellation of removal, see 8 U.S.C. § 1229b(a), (b),
20 (d)(1). Although Czyz’s NTA did not set a hearing date and
21 time, he was served five days later with a hearing notice
22 setting his hearing date and time, and he subsequently 5 1 participated in his removal proceedings. Therefore, the
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18-483 Czyz v. Barr BIA A073 592 994
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 12th day of August, two thousand twenty. 5 6 PRESENT: 7 DENNIS JACOBS, 8 ROSEMARY S. POOLER, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 SEBASTIAN CZYZ, 14 Petitioner, 15 16 v. 18-483 17 NAC 18 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Dana R. Bucin, Barry J. Waters, 25 Murtha Cullina LLP, Hartford, CT. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant 28 Attorney General; Rebekah Nahas, 29 Katherine A. Smith, Trial 30 Attorneys, Office of Immigration 31 Litigation, United States 32 Department of Justice, Washington, 33 DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the motion to hold the
4 petition for review in abeyance and the petition for review
5 are DENIED.
6 Petitioner Sebastian Czyz, a native and citizen of
7 Poland, seeks review of a February 12, 2018, decision of the
8 BIA, denying his motion to reopen. In re Sebastian Czyz, No.
9 A073 592 994 (B.I.A. Feb. 12, 2018). We assume the parties’
10 familiarity with the underlying facts and procedural history.
11 Motion to Reopen
12 The applicable standards of review are well established.
13 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.
14 2008). It is undisputed that Czyz’s 2017 motion to reopen
15 was untimely because it was filed more than 18 years after
16 his 1999 removal order. See 8 U.S.C. § 1229a(c)(7)(C)(i)
17 (“[T]he motion to reopen shall be filed within 90 days of the
18 date of entry of a final administrative order of removal.”);
19 8 C.F.R. § 1003.2(c)(2) (same).
20 Ineffective assistance of counsel can be a basis for
21 equitable relief from the time limitation on motions to
22 reopen. See Iavorski v. U.S. INS, 232 F.3d 124, 127 (2d Cir. 2 1 2000). The BIA found Czyz’s ineffective assistance claim
2 foreclosed because he failed to comply with Matter of Lozada,
3 19 I. & N. Dec. 637, 639 (BIA 1988), which requires a movant
4 to file an affidavit detailing his agreement with former
5 counsel and submit proof that he notified former counsel and
6 the proper disciplinary authority of his allegations. Czyz
7 does not challenge that finding in his brief and thus we need
8 not consider it. See Yueqing Zhang v. Gonzales, 426 F.3d
9 540, 541 n.1, 545 n.7 (2d Cir. 2005).
10 Regardless, the BIA did not err. In his motion, Czyz
11 stated that he would file the affidavit required by Lozada,
12 but he did not do so. See Lozada, 19 I. & N. Dec. at 639.
13 That was particularly problematic because his motion did not
14 specify how his former attorneys were ineffective.
15 Sua Sponte Reopening Authority
16 Because Czyz did not demonstrate that the time limitation
17 applicable to his motion should be excused, “his motion to
18 reopen could only be considered upon exercise of the [BIA’s]
19 sua sponte authority.” Mahmood v. Holder, 570 F.3d 466, 469
20 (2d Cir. 2009). We lack jurisdiction to review the agency’s
21 “entirely discretionary” decision declining to reopen
22 proceedings sua sponte. Ali v. Gonzales, 448 F.3d 515, 518 3 1 (2d Cir. 2006). However, “where the Agency may have declined
2 to exercise its sua sponte authority because it misperceived
3 the legal background and thought, incorrectly, that a
4 reopening would necessarily fail, remand to the Agency for
5 reconsideration in view of the correct law is appropriate.”
6 Mahmood, 570 F.3d at 469.
7 Czyz has not shown that the BIA misperceived the law in
8 declining to reopen sua sponte. He argues that when the
9 agency revoked his lawful permanent resident status as
10 improvidently granted, it should have returned him to his
11 prior status as a nonimmigrant student. The BIA did not err
12 in declining to reopen sua sponte to revisit the issue of
13 Czyz’s removability because he had conceded that he was
14 removable after his permanent resident status was revoked 19
15 years earlier and he was bound by that concession. See In
16 re G-D-, 22 I. & N. Dec. 1132, 1133–34 (BIA 1999) (“[W]e
17 invoke our sua sponte authority sparingly, treating it not as
18 a general remedy for any hardships created by enforcement of
19 the time and number limits in the motions regulations, but as
20 an extraordinary remedy reserved for truly exceptional
21 situations.”); see also Hoodho v. Holder, 558 F.3d 184, 192
22 (2d Cir. 2009) (recognizing that noncitizens are bound by an 4 1 attorney’s concession of removability). Czyz does not
2 otherwise challenge the BIA’s decision declining to reopen
3 sua sponte.
4 Motion to Hold Petition in Abeyance
5 Czyz moves to hold his petition in abeyance pending
6 decision by the BIA on his third motion to reopen. We decline
7 to do so because he is not likely to succeed on his motion to
8 reopen or in a petition for review from the denial of that
9 motion. In his motion to reopen, Czyz argues that the Supreme
10 Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105
11 (2018), renders him eligible for cancellation of removal and
12 invalidates his Notice to Appear (“NTA”) because his NTA
13 omitted the hearing date and time.
14 In Pereira, the Supreme Court held that the Immigration
15 and Nationality Act unambiguously requires an NTA to include
16 a hearing date and time to trigger the “stop-time rule,” 138
17 S. Ct. at 2113–20, which cuts off an alien’s accrual of
18 physical presence or residence for the purposes of qualifying
19 for cancellation of removal, see 8 U.S.C. § 1229b(a), (b),
20 (d)(1). Although Czyz’s NTA did not set a hearing date and
21 time, he was served five days later with a hearing notice
22 setting his hearing date and time, and he subsequently 5 1 participated in his removal proceedings. Therefore, the
2 issue here, unlike the issue in Pereira where proper notice
3 of hearing was never served, 138 S. Ct. at 2112, is whether
4 Czyz’s defective NTA was cured and the time stopped by the
5 subsequent properly served hearing notice.
6 The BIA has held that “where a notice to appear does not
7 specify the time or place of an alien’s initial removal
8 hearing, the subsequent service of a notice of hearing
9 containing that information perfects the deficient notice to
10 appear, triggers the ‘stop-time’ rule, and ends the alien’s
11 period of continuous residence or physical presence in the
12 United States.” Matters of Mendoza-Hernandez & Capula-
13 Cortes, 27 I. & N. Dec. 520, 529 (BIA 2019). And although
14 we have not addressed this issue following Pereira, we held
15 the same pre-Pereira, concluding “that the stop-time rule is
16 triggered upon service of a Notice to Appear that (alone or
17 in combination with a subsequent notice) provides the notice
18 required.” Guamanrrigra v. Holder, 670 F.3d 404, 410 (2d
19 Cir. 2012). Accordingly, there is likely no merit to Czyz’s
20 argument that he continued to accrue sufficient physical
21 presence for purposes of cancellation of removal after
22 December 1998 when he was properly served with both an NTA 6 1 and a hearing notice.
2 Czyz’s argument that his defective NTA was insufficient
3 to vest the immigration court with jurisdiction over his
4 removal proceedings is foreclosed by Banegas Gomez v. Barr,
5 922 F.3d 101, 112 (2d Cir. 2019) (“We conclude that an NTA
6 that omits information regarding the time and date of the
7 initial removal hearing is nevertheless adequate to vest
8 jurisdiction in the Immigration Court, at least so long as a
9 notice of hearing specifying this information is later sent
10 to the alien.”).
11 For the foregoing reasons, the motion to hold the
12 petition for review in abeyance and the petition for review
13 are DENIED. All pending motions and applications are DENIED
14 and stays VACATED.
15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court