Socop-Castillo v. Barr ( 2019 )

12-3138
Socop-Castillo v. Barr
BIA
Verrillo, IJ
A073 641 589
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 12th day of July, two thousand nineteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 EDGAR D. SOCOP-CASTILLO,
14 Petitioner,
15
16 v. 12-3138
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Glenn L. Formica, Formica
24 Williams, P.C., New Haven, CT.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant
27 Attorney General; M. Jocelyn Lopez
28 Wright, Senior Litigation Counsel;
29 Christopher Buchanan, Trial
30 Attorney, Office of Immigration
1 Litigation, United States
2 Department of Justice, Washington,
3 DC.
4
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 Edgar D. Socop-Castillo, a native and citizen
10 of Guatemala, seeks review of an August 3, 2012, decision of
11 the BIA (1) affirming a May 7, 2012, decision of an
12 Immigration Judge (“IJ”) denying Socop-Castillo’s motion to
13 rescind his deportation order entered in absentia and reopen
14 his removal proceedings, and (2) denying his motion to
15 remand. In re Edgar D. Socop-Castillo, No. A073 641 589
16 (B.I.A. Aug. 3, 2012), aff’g No. A073 641 589 (Immig. Ct.
17 Hartford May 7, 2012). We assume the parties’ familiarity
18 with the underlying facts and procedural history in this case.
19 We have reviewed the decision of the IJ as supplemented
20 by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
21 Cir. 2005). Motions to reopen deportation proceedings in
22 which an alien has been ordered deported in absentia are
23 governed by different rules depending on whether the movant
2
1 seeks to rescind the in absentia deportation order or to
2 present new evidence of eligibility for relief. See Song Jin
3 Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-, 22
4 I. & N. Dec. 349, 353-55 (BIA 1998). Accordingly, when, as
5 here, an alien seeks both rescission of an in absentia
6 deportation order, as well as reopening of deportation
7 proceedings based on new evidence, the motion is treated as
8 comprising distinct motions to rescind and to reopen. See
9 Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); see
10 also Maghradze v. Gonzales, 462 F.3d 150, 152 n.1 (2d Cir.
11 2006). We review the denial of motions to rescind, reopen,
12 and remand for abuse of discretion. See Maghradze, 462
13 F.3d at 152; Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
14 Cir. 2008); Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d
15 149, 157 (2d Cir. 2005). We find no abuse of discretion in
16 the agency’s decisions.
17 “An order entered in absentia in deportation proceedings
18 may be rescinded only upon a motion to reopen filed . . .
19 [w]ithin 180 days after the date of the order of deportation
20 if the alien demonstrates that the failure to appear was
21 because of exceptional circumstances beyond the control of
3
1 the alien . . . or . . . [a]t any time if the alien
2 demonstrates that he or she did not receive notice.”
3 8 C.F.R. § 1003.23(b)(4)(iii)(A). At the time of Socop-
4 Castillo’s deportation proceedings, “[p]roper notice . . .
5 include[d] ‘written notice . . . given in person to the alien
6 (or, if personal service is not practicable, written notice
7 . . . given by certified mail to the alien or to the alien’s
8 counsel of record, if any).’ [8 U.S.C.] § 1252b(a)(2)(A)
9 (repealed, effective 1997).” Song Jin Wu, 436 F.3d at 162.
10 Proper service on the attorney of record creates a presumption
11 of proper notice on the noncitizen. See id.12 The record establishes that the immigration court
13 properly served notice of Socop-Castillo’s October 1995
14 hearings on his counsel of record. Socop-Castillo does not
15 dispute that fact. Accordingly, he is presumed to have
16 received proper notice. See 8 U.S.C. § 1252b(a)(2)(A)
17 (1994); see also Song Jin Wu, 436 F.3d at 162.
18 Socop-Castillo asserts a due process violation, arguing
19 that he cannot mount a proper defense against the presumption
20 of proper notice because the record does not contain
21 transcripts of the hearings he missed. “To establish a
4
1 violation of due process, an alien must show that []he was
2 denied a full and fair opportunity to present h[is] claims or
3 that [he was] otherwise deprived . . . of fundamental
4 fairness.” Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.
5 2007) (internal quotation marks omitted). The immigration
6 court and BIA make recordings of hearings available for review
7 with prior arrangement. Immigration Court Practice Manual
8 (“Court Manual”) §§ 4.10(a), 5.6; Board of Immigration
9 Appeals Practice Manual (“BIA Manual”) § 5.5. A hearing is
10 automatically transcribed only if an IJ’s decision is
11 appealed to the BIA. Id. § 4.10(b). “If a party feels that
12 a transcript is necessary, the party should file a motion
13 articulating why a transcript is necessary.” BIA Manual
14 § 5.5. Given that the agency’s regulations permitted Socop-
15 Castillo to either listen to the hearings in question or move
16 to have the hearings transcribed and given that he does not
17 assert that he or his counsel tried to do either, Socop-
18 Castillo has failed to demonstrate that he was deprived a
19 full and fair opportunity to present his claim. See Burger,
20 498 F.3d at 134.
21
5
1 Since Socop-Castillo received notice, he was required to
2 file his motion to rescind within 180 days of his in absentia
3 deportation order and show that his failure to appear resulted
4 from exceptional circumstances. See Song Jin Wu, 436 F.3d
5 at 162. Socop-Castillo filed his motion to rescind more than
6 sixteen years after he was ordered deported in absentia.
7 Accordingly, as the BIA found, the motion was time barred
8 regardless of any exceptional circumstances. See 8 C.F.R.
9 § 1003.23(b)(4)(iii)(A); see also Song Jin Wu, 436 F.3d at10 162.
11 Socop-Castillo abandons any challenge to the agency’s
12 dispositive determination that his motion to reopen to apply
13 for relief from deportation under the Nicaraguan and Central
14 American Relief Act (“NACARA”) was untimely and thus we do
15 not consider it. See Yueqing Zhang v. Gonzales, 426 F.3d
16 540, 541 n.1, 545 n.7 (2d Cir. 2005). To the extent that
17 Socop-Castillo argues that the deadline was equitably tolled,
18 we find no error in the BIA’s conclusion that he failed to
19 act diligently to pursue the application, given the nearly
20 13-year delay between the 1998 deadline and his motion. And
21 we find no error in the BIA’s denial of Socop-Castillo’s
6
1 motion to remand because his written statement was previously
2 available. See 8 C.F.R. § 1003.2(c)(1); Li Yong Cao, 421
3 F.3d at 156 (providing that a movant seeking remand for
4 consideration of new evidence must “present material,
5 previously unavailable evidence.”).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, the pending motion
8 for a stay of removal in this petition is DISMISSED as moot.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe
11 Clerk of Court
7