Juarez-Gonzalez v. Sessions ( 2018 )

17-567
Juarez-Gonzalez v. Sessions
BIA
Montante, IJ
A206 439 148
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 23rd day of August, two thousand eighteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 REENA RAGGI,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 MARIA DEL CARMEN JUAREZ-
14 GONZALEZ, AKA CARMEN JUAREZ,
15 Petitioner,
16
17 v. 17-567
18 NAC
19 JEFFERSON B. SESSIONS, III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jose Perez, Syracuse, NY.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Douglas E.
28 Ginsburg, Assistant Director; John
29 M. McAdams, Jr., Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
33
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 petition for review
4 is DENIED.
5 Petitioner Maria Del Carmen Juarez-Gonzalez, a native
6 and citizen of Guatemala, seeks review of a January 31,
7 2017, decision of the BIA affirming a June 21, 2016,
8 decision of an Immigration Judge (“IJ”) denying Juarez-
9 Gonzalez’s motion to rescind her removal order entered in
10 absentia and reopen removal proceedings. In re Maria Del
11 Carmen Juarez-Gonzalez, No. A206 439 148 (B.I.A. Jan. 31,
12 2017), aff’g No. A206 439 148 (Immig. Ct. Buffalo June 21,
13 2016). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 We have reviewed both the IJ’s and the BIA’s opinions
16 “for the sake of completeness.” Wangchuck v. Dep’t of
17 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). When, as
18 here, an alien seeks both rescission of an in absentia removal
19 order and reopening of removal proceedings to apply for relief
20 from removal, we treat the request as “comprising distinct
21 motions to rescind and to reopen.” Alrefae v. Chertoff, 471
22 F.3d 353, 357 (2d Cir. 2006); see also Maghradze v. Gonzales,
23 462 F.3d 150, 152 n.1 (2d Cir. 2006). We review the denial
24 of a motion to rescind an in absentia removal order under the
2
1 same abuse of discretion standard applicable to motions to
2 reopen. See Maghradze, 462 F.3d at 152.
3 Motion to Rescind
4 The agency did not abuse its discretion in denying
5 Juarez-Gonzalez’s motion to rescind. An in absentia order
6 of removal “may be rescinded . . . upon a motion to reopen
7 filed at any time if the alien demonstrates that the alien
8 did not receive notice . . . and the failure to appear was
9 through no fault of the alien.” 8 U.S.C.
10 § 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(ii). For
11 aliens, like Juarez-Gonzalez, whose Notice to Appear warned
12 of the obligation to inform the immigration court of any
13 change in address and of the consequences of failing to do
14 so, the hearing notice requirement is “constructively
15 satisfied if notice is properly provided and the alien
16 changes address without informing the [agency].”
17 Maghradze, 462 F.3d at 154. Accordingly, the agency did
18 not err in concluding that Juarez-Gonzalez received notice:
19 her Notice to Appear informed her of her obligation to
20 change her address with the agency; her attorney received
21 notice of her hearing; and that attorney informed the IJ
22 that Juarez-Gonzalez knew of the hearing. See 8 U.S.C.
23 § 1229(a)(2)(A) (providing that “a written notice shall be
24 given in person to the alien (or, if personal service is
3
1 not practicable, through service by mail to the alien or to
2 the alien’s counsel of record, if any”), (B) (“In the case
3 of an alien not in detention, a written notice shall not be
4 required . . . if the alien has failed to provide the
5 address required . . . .”); see also Maghradze, 462 F.3d at
6 154. Juarez-Gonzalez did not demonstrate that she did not
7 receive notice or that her “failure to appear was through
8 no fault of” her own, and the agency did not abuse its
9 discretion in denying her motion to rescind. 8 U.S.C.
10 § 1229a(b)(5)(C)(ii); see also Maghradze, 462 F.3d at 154.
11 Motion to Reopen
12 The agency did not abuse its discretion in denying
13 Juarez-Gonzalez’s motion to reopen. It is undisputed that
14 her January 2016 motion to reopen was untimely because it
15 was filed more than 90 days after she was ordered removed
16 in July 2015, and she failed to assert any basis for
17 excusing the time limitation. See 8 U.S.C.
18 § 1229a(c)(7)(C)(i), (ii); 8 C.F.R. § 1003.23(b)(1), (4).
19 There is no merit to Juarez-Gonzalez’s argument that the
20 agency violated due process by preventing her from applying
21 for asylum because she was provided a hearing in removal
22 proceedings but failed to appear, and she did not advance
23 any argument regarding her eligibility for asylum or submit
24 any evidence of her prima facie eligibility for relief.
4
1 See Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007)
2 (“To establish a violation of due process, an alien must
3 show that she was denied a full and fair opportunity to
4 present her claims or that the IJ or BIA otherwise deprived
5 her of fundamental fairness.” (internal quotation marks
6 omitted)). We lack jurisdiction to review the agency’s
7 decision insofar as it declined to reopen proceedings sua
8 sponte. See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.
9 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, Juarez-Gonzalez’s
12 pending motion for a stay of removal in this petition is
13 DISMISSED as moot.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
5