Duarte v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: March 23, 2020
• Docket: 18-2167
• Status: Unpublished

Opinion

18‐2167 Duarte v. Barr

BIA Strauss, IJ A 098 594 072/073

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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING 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 23rd day of March, two thousand twenty.

PRESENT: REENA RAGGI, DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

LEIDA CRISTINA DUARTE and G.D.N., Petitioners, v. 18‐2167‐ag

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

FOR PETITIONERS: MARY FODEN, DeCastro Foden, LLC, Hartford, Connecticut; Gerald R. Nowotny, Latin American Law Center, Canton, Connecticut. FOR RESPONDENT: ELIZABETH K. FITZGERALD‐SAMBOU, Trial Attorney, Margaret Kuehne Taylor, Senior Litigation Counsel, Office of Immigration Litigation, for Joseph H. Hunt, Assistant Attorney General, Civil Division, Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a decision

of the Board of Immigration Appeals (the ʺBIAʺ), IT IS ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioners Leida Cristina Duarte and her minor daughter, natives and

citizens of Brazil, seek review of a July 2, 2018 decision of the BIA affirming an October

12, 2017 decision of an Immigration Judge (ʺIJʺ) denying Duarteʹs motion to reopen the

proceedings to rescind an in absentia removal order. In re Leida Cristina Duarte, G.D.N.,

Nos. A 098 594 072/073 (B.I.A. Jul. 2, 2018), aff’g Nos. A 098 594 072/073 (Immig. Ct.

Hartford Oct. 12, 2017). We assume the partiesʹ familiarity with the underlying facts,

the procedural history of this case, and the issues on appeal.

We review the IJʹ s decision as supplemented by the BIA. Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review motions to reopen removal

proceedings for abuse of discretion. Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.

2009); Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). The BIA has ʺbroad

discretionʺ to grant or deny such a motion. I.N.S. v. Abudu, 485 U.S. 94, 96 (1988); see 8

C.F.R. § 1003.2(a).

2 As a general matter, a petitioner cannot appeal directly to the BIA from an

order of deportation that was issued in absentia. See 8 U.S.C. § 1229a(b)(5)(C); In re

Guzman, 22 I. & N. Dec. 722, 723 (BIA 1999) (holding that the BIA is ʺwithout authority

to consider a direct appeal from an in absentia orderʺ). Instead, a petitioner seeking to

rescind such an order must first file a motion to reopen removal proceedings. See 8

U.S.C. § 1229a(b)(5)(C). A motion to reopen can be filed at any time ʺif the alien

demonstrates that [she] did not receive notice.ʺ 8 U.S.C. § 1229a(b)(5)(c)(ii); see also

Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir. 2006) (holding that in considering a motion to

reopen, ʺthe central issue . . . is [not] whether the notice was properly mailed . . . but

rather whether the alien actually received the notice); Guzman, 22 I. & N. Dec. at 723.

Duarte argues that she did not receive notice of her April 5, 2005 hearing or the in

absentia order of removal, and that therefore her motion to reopen should have been

granted.

Even assuming that Duarte never received the notice of her April 5, 2005

hearing or the in absentia order of removal, the BIA did not abuse its discretion in

denying Duarteʹs motion to reopen. First, Duarte was personally served with a written

notice to appear, in English, for a hearing scheduled for February 22, 2005. Second,

although she was also given oral notice in Spanish when she purportedly only speaks

Portuguese, the agency is not required to give notice in a language that the petitioner

3 actually understands. See 8 U.S.C. § 1229(a)(1); see also Lopes, 468 F.3d at 85. Third,

despite the personal service of a written notice to appear, Duarte failed to appear for her

hearing. Fourth, when the hearing was rescheduled for April 5, 2005, notice was

mailed to Duarte. Although the notice was returned as undeliverable, it was mailed to

the address she provided. Finally, Duarte waited 12 years to move to rescind her in

absentia removal order. See Matter of M‐R‐A‐, 24 I. & N. Dec. 665, 674 (BIA 2008) (on

motion to reopen, factors to consider include applicantʹs affidavit, her prior attendance

at hearings, and whether she exercised due diligence to redress the situation). Duarte

knew she should have received correspondence from the immigration court, but never

attempted to learn the status of her proceedings, assuming ʺthe court had forgotten

about [her].ʺ In these circumstances, we cannot say that it was an abuse of discretion

for the agency to decline to reopen the proceedings. The BIA well understood that

Duarte did not receive the notice and in absentia order ‐‐ they were returned to the

Immigration Court as undeliverable ‐‐ but it concluded that she should be charged with

receiving the documents. In light of the circumstances, that conclusion was reasonable.

To the extent that Duarte presented new evidence to the BIA, the BIA did

not abuse its discretion in declining to remand because the request was in essence an

untimely second motion to reopen and the evidence was not previously unavailable.

See Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005) (motions to

4 remand are subject to the same standards as motions to reopen); 8 C.F.R. § 1003.2(c)(1);

8 U.S.C. § 1229a(c)(7).

The agency also declined to reopen proceedings sua sponte. The agency

may reopen sua sponte even where a motion to reopen is untimely, see 8 C.F.R.

§§ 1003.2(a), 1003.23(b)(1), but we lack jurisdiction to review this ʺentirely discretionaryʺ

determination, Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006), unless the agency

ʺmisperceived the legal background and thought, incorrectly, that a reopening would

necessarily fail,ʺ Mahmood, 570 F.3d at 469. That exception does not apply here because

the BIA did not misperceive the law. See Ali, 448 F.3d at 518; In re J‐J‐, 21 I. & N. Dec.

976, 984 (BIA 1997). Therefore, we do not have jurisdiction to further review the BIAʹs

decision not to reopen sua sponte. See Ali, 448 F.3d at 518.

For the foregoing reasons, the petition for review is DENIED. All

pending motions and applications are DENIED and stays VACATED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court