Hamdi v. Holder , 555 F. App'x 52 ( 2014 )

12-2451
Hamdi v. Holder
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 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 7th day of February, two thousand fourteen.
PRESENT: JON O. NEWMAN,
PIERRE N. LEVAL,
GERARD E. LYNCH,
Circuit Judges.
————————————————————————
MOHAMED HAMDI,
Petitioner,
v. No. 12-2451
NAC
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
————————————————————————
FOR PETITIONER: Genet Getachew, Law Office of Genet Getachew, Brooklyn,
New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant Attorney General; Anh-Thu
P. Mai-Windle, Senior Litigation Counsel; Imran R. Zaidi,
Attorney, Office of Immigration Litigation, United States
Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Mohamed Hamdi (“Hamdi”), a native and citizen of Tunisia, petitions for review of
a decision of the Board of Immigration Appeals (“BIA”) denying his motion for
reconsideration of the BIA’s earlier order affirming the Immigration Judge’s (“IJ”) denial of
Hamdi’s motion to reopen and rescind an in absentia order of removal. We assume the
parties’ familiarity with the facts and record of prior proceedings, which we reference only
as necessary to explain our decision to deny the petition for review.
On September 23, 2004, Hamdi adjusted his status to that of a permanent resident on
a conditional basis. Hamdi’s status was terminated on June 12, 2009, upon the denial of his
I-751 petition to remove conditions on residence. Subsequently, a Notice to Appear (“NTA”)
before the Immigration Court was mailed to Hamdi’s home address, charging him with
removability under 8 U.S.C. § 1227(a)(1)(D)(i), and ordering him to appear before an IJ on
January 5, 2010. After Hamdi failed to appear for his hearing, the IJ entered an in absentia
order of removal. More than ten months later, Hamdi moved before the IJ to reopen
proceedings and rescind the in absentia removal order, pursuant to 8 U.S.C.
§ 1229a(b)(5)(C)(ii), claiming that he had not received notice of the hearing. The IJ denied
Hamdi’s motion to reopen and rescind on December 29, 2010, concluding that Hamdi had
not sustained his burden of rebutting the presumption of receipt that arises when a NTA is
served by regular mail. The BIA affirmed the IJ’s decision without opinion on January 10,
2012. Hamdi did not petition for review of that decision. Instead, he moved before the BIA
2
to reconsider its January 10 decision. After the BIA denied Hamdi’s motion to reconsider
on May 21, 2012, Hamdi timely filed the instant petition for review of that decision.
We review the denial of a motion to reconsider for abuse of discretion. Jin Ming Liu
v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). The BIA abuses its discretion when its
decision “provides no rational explanation, inexplicably departs from established policies,
is devoid of any reasoning, or contains only summary or conclusory statements; that is to say,
where the [BIA] has acted in an arbitrary or capricious manner.” Id. (internal quotation
marks omitted). A motion to reconsider “request[s] that the Board reexamine its decision in
light of additional legal arguments, a change of law, or perhaps an argument or aspect of the
case which was overlooked.” Id. (internal quotation marks omitted). The motion “shall state
the reasons for the motion by specifying the errors of fact or law in the prior Board decision
and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1).
In his petition for review, Hamdi raises a series of purported legal and factual errors
in the IJ’s decision denying Hamdi’s motion to reopen and rescind. For example, Hamdi
argues that the IJ’s misunderstanding of New York Domestic Relations law led the judge to
unjustifiably question the credibility of Hamdi’s testimony on other matters. These
arguments are not properly before the Court. Because Hamdi did not petition for review of
the BIA’s January 10 decision affirming the IJ’s ruling within the thirty-day filing deadline,
we lack jurisdiction to address the merits of the underlying motion to reopen and rescind the
in absentia order of removal. See 8 U.S.C. § 1252(b)(1); Stone v. INS, 514 U.S. 386, 405-06
(2d Cir. 2001); Alam v. Gonzales, 438 F.3d 184, 186 (2d Cir. 2006).
3
Because Hamdi’s contentions in his petition relate solely to errors in the IJ’s
underlying decision, he has arguably waived any challenge to the BIA’s denial of his motion
to reconsider. See Yueqing Zhang v. Gonzales, 426 F.3d 450, 541 n.1, 545 n.7 (2d Cir.
2005). In any event, however, the BIA did not abuse its discretion in denying Hamdi’s
motion for reconsideration. Hamdi sought reconsideration on two grounds. First, Hamdi
argued that his motion to reopen proceedings and rescind the in absentia order of removal
should have been granted because he failed to appear at the January 5, 2010 hearing due to
exceptional circumstances. See 8 U.S.C. § 1229a(b)(5)(C)(i). Second, Hamdi disputed the
IJ’s characterization of his failure to inform U.S. Citizenship and Immigration Service of his
address change, and consideration of the fact that Hamdi did not withdraw his I-751
application after he and his wife divorced. The BIA rejected both arguments.
With respect to the first argument, the BIA held that Hamdi could not rely on the
exceptional circumstances provision, because he had not raised the argument before the
Immigration Judge. See O-S-G-, 24 I&N Dec. 56 (BIA 2006). In addition, the BIA held that
if Hamdi’s motion to reopen and rescind the in absentia removal order had been based on
exceptional circumstances, it would still have been untimely, because it was filed more than
180 days after the date of the order of removal. As the BIA correctly explained, a motion to
reopen and rescind an in absentia removal order on the ground that petitioner’s failure to
appear was a result of exceptional circumstances must be filed within 180 days of the order
of removal. See 8 U.S.C. § 1229a(b)(5)(C)(i); 8 C.F.R. § 1003.23(b)(4)(ii). Hamdi’s motion
was filed more than 300 days after the entry of the in absentia order of removal.
4
Accordingly, the BIA did not abuse its discretion in denying Hamdi’s motion to reconsider
on this basis.
With respect to the second argument, the BIA held that petitioner merely reiterated
arguments previously considered on appeal. The BIA does not abuse its discretion in
denying a motion to reconsider where, as here, the movant merely repeats arguments the BIA
has already rejected. Jin Ming Liu, 439 F.3d at 111. Moreover, these arguments are based
on disagreements with inferences drawn by the IJ; they do not identify legal or factual errors
in the BIA’s affirmance of the IJ’s decision. See Ahmed v. Ashcroft, 388 F.3d 247, 250 (7th
Cir. 2004). Thus, on this ground as well, the BIA did not abuse its discretion in denying
Hamdi’s motion for reconsideration.
For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
5