17-3219 Heitor v. Barr BIA
Straus, IJ
A078 323 092
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 2nd day of December, two thousand twenty. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 REENA RAGGI, 10 JOSEPH F. BIANCO, 11 Circuit Judges. 12 _____________________________________ 13 14 ERITON JOABIS HEITOR, 15 Petitioner, 16 17 v. 17-3219 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Glenn L. Formica, New Haven, CT. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Song Park, Senior 28 Litigation Counsel; Micah Engler,
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1 Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Petitioner Eriton Joabis Heitor, a native and citizen of 10 Brazil, seeks review of a September 14, 2017, decision of the 11 BIA affirming a May 24, 2017, decision of an Immigration Judge 12 (“IJ”) denying Heitor’s motion to reopen proceedings and 13 rescind his in absentia removal order. In re Eriton Joabis 14 Heitor, No. A 078 323 092 (B.I.A. Sept. 14, 2017), aff’g No. 15 A 078 323 092 (Immig. Ct. Hartford May 24, 2017). Heitor 16 separately moves for remand to the BIA for consideration of 17 his argument that the immigration court lacked authority to 18 order his removal in light of Pereira v. Sessions, 138 S. Ct. 19 2105 (2018). We assume the parties’ familiarity with the 20 underlying facts and procedural history in this case. 21 As an initial matter, there is no merit to Heitor’s 22 argument, raised in his motion to remand, that he is entitled 23 to relief under Pereira. To the extent that he argues that
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1 his Notice to Appear (“NTA”) was insufficient to vest 2 jurisdiction in the immigration court under Pereira, his 3 argument is foreclosed by our decision in Banegas-Gomez v. 4 Barr, in which we held that Pereira does not “void 5 jurisdiction in cases in which an NTA omits a hearing time or 6 place” and that an NTA lacking this information is sufficient 7 to vest jurisdiction “so long as a notice of hearing 8 specifying this information is later sent to the alien.” 922 9 F.3d 101, 110, 112 (2d Cir. 2019) (emphasis omitted). 10 Although Heitor’s April 2001 NTA did not specify the time and 11 date of his initial hearing, he was personally served with a 12 notice providing a hearing date of May 9, 2001—and he attended 13 that hearing. To the extent that he relies on Pereira to 14 argue that he could not have been expected to attend his 15 hearings because of the alleged NTA defect, this argument 16 fails because he appeared at his initial hearing. 17 Heitor’s challenges to the agency’s denial of his motion 18 to rescind his in absentia removal order are also without 19 merit. We have reviewed the IJ’s decision denying the motion 20 to rescind as supplemented by the BIA. See Chen v. Gonzales, 21 417 F.3d 268, 271 (2d Cir. 2005). We review the denial of a
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1 motion to rescind or reopen for abuse of discretion. Alrefae 2 v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). As relevant 3 here, the agency may rescind an in absentia removal order if 4 the alien demonstrates that he lacked notice of the hearing 5 or, if rescission is requested within 180 days, “if the alien 6 demonstrates that the failure to appear was because of 7 exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C); see 8 8 C.F.R. § 1003.23(b)(4)(ii). 9 The agency did not abuse its discretion in finding that 10 Heitor received adequate notice of the hearing where he failed 11 to appear. If, as here, notice is “served via regular mail” 12 rather than certified mail, there is “a ‘less stringent, 13 rebuttable presumption’ of receipt.” Silva-Carvalho Lopes 14 v. Mukasey, 517 F.3d 156, 159 (2d Cir. 2008) (quoting Alrefae, 15 471 F.3d at 359). The agency “must consider all of the 16 petitioner’s evidence (circumstantial or otherwise) in a 17 practical fashion, guided by common sense, to determine 18 whether the slight presumption of receipt of regular mail has 19 more probably than not been overcome.” Id. at 160. However, 20 for aliens who receive notice of their obligation to inform 21 the immigration court of any change in address and of the
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1 consequences of failing to do so, the “requirement that an 2 alien ‘receive’ notice [is] constructively satisfied if 3 notice is properly provided and the alien changes address 4 without informing” the agency. Maghradze v. Gonzales, 462 5 F.3d 150, 154 (2d Cir. 2006); see 8 U.S.C. § 1229(a). 6 Here, the record reflects that Heitor did not actually 7 receive notice of the hearing because the notice was returned 8 as undeliverable. But this fact is not dispositive because 9 the NTA, which Heitor did receive, provided notice of his 10 obligation to update his address with the immigration court 11 if he moved. Maghradze, 462 F.3d at 154. The agency did not 12 abuse its discretion in finding that the notice was properly 13 provided to the address in the record, and that Heitor 14 effectively “thwarted delivery” because he did not 15 demonstrate that he was living or receiving mail at that 16 address. Id. Heitor affirmed that he moved to the Hartford 17 address after he was released on bond, but he did not provide 18 any information about how long he remained there or whether 19 he ever received mail there. The record indicates that 20 Heitor did eventually move, but not that he informed the 21 agency of his new address; to the contrary, Heitor asserted
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1 in his affidavit that he was not aware of his obligation to 2 do so. Because counsel’s statement in a brief is not 3 evidence, the BIA properly discounted Heitor’s attorney’s 4 assertion on appeal that Heitor lived at the address he had 5 provided the agency for one year. See Pretzantzin v. Holder, 6 736 F.3d 641, 651 (2d Cir. 2013). The address on the enclosed 7 hearing notice was correct, and the Government is entitled to 8 a presumption that the agency properly addressed the 9 envelope. See Nat’l Archives and Records Admin. v. Favish, 10 541 U.S. 157, 174 (2004) (discussing, in the context of a 11 FOIA application, the presumption that government officials 12 have properly performed their duties). The USPS endorsement 13 indicates that Heitor was not known at the address, not that 14 the address was illegible or that delivery at the address of 15 record could not otherwise be attempted. Circumstantial 16 evidence in the record that Heitor might not have thwarted 17 delivery is not compelling: Heitor appeared at a previous 18 hearing, but he was detained at the time; and although Heitor 19 now asserts that he had an incentive to appear because he has 20 a meritorious asylum claim, he did not attempt to pursue it 21 for more than 15 years and it is not a strong claim—abuse at
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1 the hands of his father does not appear to implicate a 2 protected ground as needed to state an asylum claim. See 8 3 U.S.C. § 1101(a)(42); cf. Matter of M-R-A-, 24 I. & N. Dec. 4 665, 674 (BIA 2008) (describing evidence that may be relevant 5 to rebutting the presumption that a notice sent by regular 6 mail was delivered, including appearances at prior hearings 7 and evidence that the alien is eligible for relief from 8 removal). Accordingly, the agency did not abuse its 9 discretion in finding that Heitor had constructive notice of 10 his hearing. 11 The agency also did not abuse its discretion in denying 12 Heitor’s motion to the extent he alleged exceptional 13 circumstances because he did not file his motion within 180 14 days of his removal order. See 8 U.S.C. § 1229a(b)(5)(C)(i); 15 8 C.F.R. § 1003.23(b)(4)(ii). Heitor was ordered removed in 16 2002, and he did not move to reopen until 2017. Even if the 17 motion were timely, Heitor’s assertion of past abuse is not 18 a basis to rescind an in absentia order because he did not 19 demonstrate that his “failure to appear was because of” these 20 circumstances. 8 C.F.R. § 1003.23(b)(4)(ii) (emphasis 21 added).
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1 Finally, Heitor does not challenge the agency’s denial 2 of sua sponte reopening and has therefore waived review of 3 that issue. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 4 n.1 (2d Cir. 2005) (finding claim not raised in brief 5 abandoned). 6 For the foregoing reasons, the petition for review is 7 DENIED. All pending motions and applications are DENIED and 8 stays VACATED.
9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court