De Carvalho-Cruz v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: September 15, 2020
• Docket: 18-2067
• Status: Unpublished

Opinion

18-2067 De Carvalho-Cruz v. Barr BIA Straus, IJ A098 323 097/098

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of September, two thousand twenty.

PRESENT: JON O. NEWMAN, JOSEPH F. BIANCO, WILLIAM J. NARDINI, Circuit Judges.* _____________________________________

ANDRE DA SILVA, AKA ANDRE LUIZ DA SILVA, MONIELE CAMILA DE CARVALHO-CRUZ, AKA MONIELE CAMILA DA SILVA, Petitioners,

v. 18-2067 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.

* Circuit Judge Peter W. Hall, originally a member of the panel, is currently unavailable. Circuit Judge Jon O. Newman has replaced Judge Hall on the panel for this matter. See 2d Cir. IOP E(b). _____________________________________

FOR PETITIONERS: Melinda M. Basaran, BK Law Firm LLC, Clifton, NJ.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Holly M. Smith, Senior Litigation Counsel; David Kim, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioners Andre Da Silva (“Andre”) and Moniele Camila

De Carvalho-Cruz (“Moniele”), natives and citizens of Brazil,

seek review of a June 15, 2018, decision of the BIA affirming

a September 27, 2017, decision of an Immigration Judge (“IJ”)

denying their motion to reopen their immigration proceedings

and rescind their in absentia removal orders. In re De

Carvalho-Cruz, No. A 098 323 097/098 (B.I.A. June 15, 2018),

aff’g No. A 098 323 097/098 (Immig. Ct. Hartford Sept. 27,

2017). We assume the parties’ familiarity with the

underlying facts and procedural history.

2 We have reviewed the IJ’s decision as modified and

supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of

Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Motions to reopen

in absentia removal orders are governed by different rules

depending on whether the movant seeks to rescind the order or

present new evidence of eligibility for relief from removal.

See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In

re M-S-, 22 I. & N. Dec. 349, 353–55 (BIA 1998). Accordingly,

when, as here, an alien files a motion that seeks both

rescission of an in absentia removal order and reopening of

removal proceedings based on new claims for eligibility for

relief, “we treat the motion as comprising distinct motions

to rescind and to reopen.” Alrefae v. Chertoff, 471 F.3d

353, 357 (2d Cir. 2006); see also Maghradze v. Gonzales, 462

F.3d 150, 152 n.1 (2d Cir. 2006). We review the denial of a

motion to rescind an in absentia removal order under the same

abuse of discretion standard applicable to motions to reopen.

See Alrefae, 471 F.3d at 357; see also Kaur v. BIA, 413 F.3d

232, 233 (2d Cir. 2005).

3 Motion to Rescind

As relevant here, there are two grounds to rescind an in

absentia removal order: (1) lack of notice of the hearing,

and (2) exceptional circumstances for failure to appear if

rescission is requested within 180 days. 8 U.S.C.

§ 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii). Andre

asserts a lack of notice, and Moniele argues that she is

entitled to rescission on both grounds.

If, as here, notice is “served via regular mail” rather

than certified mail, there is “a ‘less stringent, rebuttable

presumption’ of receipt.” Silva-Carvalho Lopes v. Mukasey,

517 F.3d 156, 159 (2d Cir. 2008) (quoting Alrefae, 471 F.3d

at 359). The agency “must consider all of the petitioner’s

evidence (circumstantial or otherwise) in a practical

fashion, guided by common sense, to determine whether the

slight presumption of receipt of regular mail has more

probably than not been overcome.” Id. at 160; see also Matter

of M-R-A-, 24 I. & N. Dec. 665, 674 (B.I.A. 2008) (providing

a non-exhaustive list of factors that may be relevant to this

inquiry). For aliens who receive notice of their obligation

to inform the immigration court of any change in address and

4 of the consequences of failing to do so, the “requirement

that an alien ‘receive’ notice [is] constructively satisfied

if notice is properly provided and the alien changes address

without informing” the agency. Maghradze, 462 F.3d at 154;

see 8 U.S.C. § 1229(a)(1)(F), (a)(2).

Moniele and Andre do not dispute that the agency mailed

their hearing notices to the address that they had provided.

Accordingly, the agency reasonably concluded that a

presumption of receipt applied. See Silva-Carvalho Lopes,

517 F.3d at 159. The agency also reasonably concluded that

Moniele and Andre had not rebutted that presumption. As a

preliminary matter, Moniele and Andre were both informed of

their obligation to notify the agency of any address changes.

Neither affirmed that they still lived at the address they

provided to the agency during the relevant period, and there

is no other evidence showing that they had remained at that

address (rather than changing their address without informing

the agency). Even assuming that they remained at that

address at the time of mailing, however, the BIA reasonably

concluded that they did not rebut the presumption of receipt.

Significantly, Moniele asserted in her affidavit only that

5 she did not know if she had received a notice, not that she

had not received one. Neither Moniele nor Andre had applied

for relief prior to the removal order, and despite having

notice that they were in removal proceedings, neither took

any steps to apply for relief from removal or inquire of the

agency regarding the status of those proceedings for more

than a decade. See Matter of M-R-A-, 24 I. & N. Dec. at 674

(prior applications for relief and evidence of diligence may

be probative of nonreceipt). Moreover, as discussed below

in connection with the motion to reopen, Moniele has not

demonstrated prima facie eligibility for relief from removal.

See id. (prima facie eligibility for relief may also be

probative of nonreceipt).

Moniele and Andre argue that the agency’s proceedings

violated due process because the IJ did not explicitly discuss

some of the relevant factors. But the IJ gave “reasoned

consideration to the [motion], and made adequate findings,”

and did not need to “expressly parse or refute on the record

each individual argument or piece of evidence offered by the

petitioner.” Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d

Cir. 2007) (internal quotation marks omitted); see also Xiao

6 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d

Cir. 2006) (“[W]e presume that [the agency] has taken into

account all of the evidence before [it], unless the record

compellingly suggests otherwise.”). Because these factors

did not rebut the presumption of receipt, Moniele and Andre

cannot show they were prejudiced by the IJ’s failure to

address these issues more thoroughly, and therefore cannot

show a due process violation. See Miller v. Mukasey, 539

F.3d 159, 164 (2d Cir. 2008) (alien must establish prejudice

to prevail on a due process claim). They also argue that the

BIA erred by failing to consider evidence of Moniele’s

psychological condition in the context of her claim that she

did not receive notice, but they do not explain how this

condition would prevent her from learning of her hearing date

or why her statements to a psychologist regarding whether she

received notice should be granted more weight than her

affidavit on that subject.

Further, Moniele’s motion for rescission based on

exceptional circumstances was indisputably filed outside the

180-day period for such motions. See 8 U.S.C.

§ 1229a(b)(5)(C)(i). Even if the motion were timely, Moniele

7 did not show that she was entitled to reopening on this basis

because she did not establish that the alleged exceptional

circumstances—the abuse she suffered in Brazil and the

psychological consequences of that abuse—prevented her from

appearing at her hearing. See id. (providing for rescission

if the alien demonstrates failure to appear was “because of”

exceptional circumstances); see also 8 C.F.R.

§ 1003.23(b)(4)(iii) (providing that exceptional

circumstances include “serious illness of the alien or

serious illness or death of an immediate relative of the

alien, but not . . . less compelling circumstances”).

Accordingly, because they did not rebut the presumption

that they received their hearing notices or establish that

extraordinary circumstances prevented them from appearing as

required, the agency did not abuse its discretion in denying

Moniele’s and Andre’s motions to rescind their in absentia

removal orders. See 8 U.S.C. § 1229a(b)(5)(C).

Motion to Reopen

Generally, an alien seeking to reopen may file one motion

to reopen no later than 90 days after the final administrative

decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

8 §§ 1003.2(c)(2), 1003.23(b)(1). Moniele’s motion to reopen

was indisputably untimely filed more than 12 years after her

final removal order. However, the time limitation may be

excused in order to apply for asylum “based on changed country

conditions arising in the country of nationality or the

country to which removal has been ordered.” 8 U.S.C.

§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.23(b)(4)(i).

In order to obtain reopening, an alien must also establish a

prima facie case for the underlying substantive relief

sought. See INS v. Abudu, 485 U.S. 94, 104 (1988).

Moniele argues that her country conditions evidence

established a significant increase in the rate of violence

against women, which was material to her risk of experiencing

serious harm in Brazil, and therefore to her claim for

humanitarian asylum, even if it was not otherwise material to

her claim based on abuse by her father; she also emphasizes

that the future harm for the purposes of humanitarian asylum

need not be on account of a protected ground. Humanitarian

asylum is available where there has been past persecution on

account of a protected ground and the applicant no longer has

a well-founded fear of future persecution on that basis, but

9 faces “other serious harm” upon removal. 8 C.F.R.

§ 1208.13(b)(1)(iii). Accordingly, Moniele is correct that

a change in country conditions affecting her risk of future

harm unrelated to a protected ground could be material to her

claim—but only if she has suffered past persecution on account

of a protected ground. See id. Moniele has not established

that her claimed past harm, which was abuse by her father,

occurred on account of any protected ground. 1 Because she

did not demonstrate a nexus between her past harm and a

protected ground, she did not establish prima facie

1 As she contends in her reply brief, Moniele argued before the IJ that her father abused her because of her membership in a particular social group consisting of members of her family. She failed to exhaust this issue before the BIA and waived it by failing to address it in her opening brief to this Court. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119–20 (2d Cir. 2007) (describing issue exhaustion as “mandatory”); Evangelista v. Ashcroft, 359 F.3d 145, 155 n.4 (2d Cir. 2004) (declining to consider issue raised for first time in reply brief). Regardless, she did not show that her family is viewed as a socially distinct group in Brazil. See Paloka v. Holder, 762 F.3d 191, 196 (2d Cir. 2014) (to constitute a particular social group, a group must be “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question” (internal quotation marks omitted)). Being a victim of a crime is not in itself a basis for asylum. See Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999) (harm suffered as a result of “general crime conditions” does not constitute persecution on account of a protected ground). 10 eligibility for asylum (including humanitarian asylum), and

the changed conditions were not material to her claim. See

8 U.S.C. § 1229a(c)(7)(C)(ii); Abudu, 485 U.S. at 104.

Sua Sponte Reopening

Moniele and Andre have waived any challenge to the denial

of sua sponte reopening by not sufficiently raising it in

their brief to this Court. See Norton v. Sam’s Club, 145

F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued

in the briefs are considered waived and normally will not be

addressed on appeal.”). In any event, we lack jurisdiction

to review the agency’s “entirely discretionary” decision

declining to reopen sua sponte, except where the agency

misperceived the law and denied reopening based on a mistaken

belief that reopening would be futile. Ali v. Gonzales, 448

F.3d 515, 518 (2d Cir. 2006); see Mahmood v. Holder, 570 F.3d

466, 469 (2d Cir. 2009). That exception does not apply here

because the BIA denied reopening on the grounds that the

hardships that Moniele experienced were not “exceptional” and

did not warrant a favorable exercise of discretion.

11 Omission of Hearing Information from Notice to Appear

Finally, Moniele’s and Andre’s challenge to the

immigration court’s jurisdiction to order their removal is

foreclosed by our decision in Banegas Gomez v. Barr, 922 F.3d

101 (2d Cir. 2019). Moniele and Andre argue that, pursuant

to Pereira v. Sessions, 138 S. Ct. 2105 (2018), their notices

to appear (“NTAs”) were insufficient to confer jurisdiction

because they did not include a hearing date or time. In

Banegas Gomez, however, we held that Pereira does not “void

jurisdiction in cases in which an NTA omits a hearing time or

place” and “an NTA that omits [this] information . . . is

nevertheless adequate to vest jurisdiction in the Immigration

Court, at least so long as a notice of hearing specifying

this information is later sent to the alien.” 922 F.3d at

110, 112. Moniele’s and Andre’s NTAs did not specify the

time or date of their hearings, but the record reflects that

the agency sent them both hearing notices that included the

omitted information and, as discussed above, Moniele and

Andre did not rebut the presumption that they received those

notices. Accordingly, the immigration court had jurisdiction

to order their removal. Banegas Gomez, 922 F.3d at 112.

12 For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court