Silva-Silva v. Barr ( 2019 )

17-2784
Silva-Silva v. Barr
BIA
Straus, IJ
A200 031 712
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 6th day of November, two thousand nineteen.
5
6 PRESENT:
7 REENA RAGGI,
8 SUSAN L. CARNEY,
9 RICHARD J. SULLIVAN,
10 Circuit Judges.
11 _____________________________________
12
13 ERICO SILVA-SILVA, AKA ANDERSON
14 ERICO DA SILVA,
15 Petitioner,
16
17 v. 17-2784
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jeffrey A. Devore, Esq., Palm
25 Beach Gardens, FL.
26
27 FOR RESPONDENT: Chad A. Readler, Acting Assistant
28 Attorney General; Erica B. Miles,
29 Senior Litigation Counsel; Enitan
30 O. Otunla, Trial Attorney, Office
31 of Immigration Litigation, United
32 States Department of Justice,
33 Washington, DC.
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 Erico Silva-Silva, a native and citizen of
6 Brazil, seeks review of an August 10, 2017, decision of the
7 BIA affirming a March 20, 2017, decision of an Immigration
8 Judge (“IJ”) denying Silva-Silva’s motion to reopen his
9 removal proceedings and rescind his removal order. In re
10 Erico Silva-Silva, No. A 200 031 712 (B.I.A. Aug. 10, 2017),
11 aff’g No. A 200 031 712 (Immig. Ct. Hartford Mar. 20, 2017).
12 We assume the parties’ familiarity with the underlying facts
13 and procedural history in this case.
14 We have reviewed both the IJ’s and the BIA’s opinions
15 “for the sake of completeness.” Wangchuck v. Dep’t of
16 Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). We
17 review the denial of a motion to reopen and rescind an in
18 absentia removal order for abuse of discretion. See Alrefae
19 v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006).
20 There are two grounds to rescind an in absentia removal
21 order: (1) lack of notice of the hearing; and (2) exceptional
2
1 circumstances for failure to appear if rescission is
2 requested within 180 days. 8 U.S.C. § 1229a(b)(5)(C);
3 8 C.F.R. § 1003.23(b)(4)(ii). Only the first provision is
4 at issue because Silva-Silva filed his motion to reopen and
5 rescind more than 10 years after the IJ entered the removal
6 order.
7 If, as here, notice was “served via regular mail,” there
8 is “a ‘less stringent, rebuttable presumption’ of receipt”
9 than if served by certified mail. Silva-Carvalho Lopes v.
10 Mukasey, 517 F.3d 156, 159 (2d Cir. 2008) (quoting Alrefae,
11 471 F.3d at 359). The agency “must consider all of the
12 petitioner’s evidence (circumstantial or otherwise) in a
13 practical fashion, guided by common sense, to determine
14 whether the slight presumption of receipt of regular mail has
15 more probably than not been overcome.” Id. at 160.
16 Importantly, however, for aliens who receive notice of their
17 obligation to inform the immigration court of any change in
18 address and of the consequences of failing to do so, in
19 compliance with 8 U.S.C § 1229(a), the “requirement that an
20 alien ‘receive’ notice [is] constructively satisfied if
21 notice is properly provided and the alien changes address
3
1 without informing” the agency. Maghradze v. Gonzales, 462
2 F.3d 150, 154 (2d Cir. 2006).
3 The agency may consider, among other evidence, the
4 following:
5 (1) the respondent’s affidavit; (2) affidavits from
6 family members or other individuals who are
7 knowledgeable about the facts relevant to whether
8 notice was received; (3) the respondent’s actions
9 upon learning of the in absentia order, and whether
10 due diligence was exercised in seeking to redress
11 the situation; (4) any prior affirmative application
12 for relief, indicating that the respondent had an
13 incentive to appear; (5) any prior application for
14 relief filed with the Immigration Court or any prima
15 facie evidence in the record or the respondent’s
16 motion of statutory eligibility for relief,
17 indicating that the respondent had an incentive to
18 appear; (6) the respondent’s previous attendance at
19 Immigration Court hearings, if applicable; and
20 (7) any other circumstances or evidence indicating
21 possible nonreceipt of notice.
22
23 Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (B.I.A. 2008).
24 The agency did not abuse its discretion in denying Silva-
25 Silva’s motion to rescind.
26 First, the agency reasonably applied the slight
27 presumption that Silva-Silva received notice of his May 2006
28 hearing based on the following. In July 2005, Silva-Silva
29 was personally served with, and signed and fingerprinted, a
30 Notice to Appear (“NTA”), which placed him in removal
4
1 proceedings, informed him of the time, date, and place of a
2 hearing in Connecticut, and warned him that he could be
3 ordered removed in absentia if he failed to provide a change
4 of address. He does not allege that he appeared at the time
5 and place listed in the NTA. Moreover, hearing notices
6 mailed to that address in 2005 and 2006 were returned to the
7 immigration court. Although these return notices indicate
8 that Silva-Silva did not actually receive the notices, he “is
9 deemed to be in constructive receipt of properly-provided
10 notice — and hence ineligible for rescission of his in
11 absentia order of removal — if he thwarted delivery.”
12 Maghradze, 462 F.3d at 153-54. The agency did not abuse its
13 discretion in concluding that Silva-Silva thwarted delivery:
14 even crediting his allegation that the Connecticut address
15 was wrong, he received the NTA and Form I-213 that contained
16 the incorrect address, as well as a warning about changing
17 the address and the consequences of failure to appear in the
18 Connecticut immigration court, which was the court listed on
19 his NTA. Because the agency sent the hearing notices to his
20 address of record, he is presumed to be in receipt of the
21 notices. See Silva-Carvalho Lopes, 517 F.3d at 160;
5
1 Maghradze, 462 F.3d at 153-54.
2 Nor did Silva-Silva rebut the presumption of receipt.
3 His affidavit did not explain why he failed to challenge the
4 erroneous address or the fact that the NTA listed the hearing
5 location as Connecticut. Therefore, his affidavit provided
6 no basis for finding the presumption of receipt overcome.
7 See Maghradze, 462 F.3d at 154.
8 The agency also reasonably found it troubling that Silva-
9 Silva failed to inquire into the status of his removal
10 proceedings or apply for relief in those proceedings for
11 approximately 12 years. See Matter of M-R-A-, 24 I. & N.
12 Dec. at 674 (holding that agency may consider movant’s due
13 diligence in seeking to rectify in absentia order and his
14 prima facie eligibility for relief at time of original
15 hearing). His affidavit did not describe any action he took
16 in the almost 12 years that passed between service of the NTA
17 and his motion to reopen and rescind. Therefore, given that
18 Silva-Silva failed to inquire about or apply for relief until
19 his visa petition was approved in 2015, he did not demonstrate
20 that he had an incentive to appear at his hearing and would
21 have done so had he received notice in 2006. See id.
6
1 Finally, Silva-Silva’s argument that his failure to
2 appear stemmed from the lack of a written translation of the
3 NTA is unavailing. There is no requirement that the
4 Government provide a written translation of the NTA. See 8
5 U.S.C. § 1229(a)(1); Lopes v. Gonzales, 468 F.3d 81, 84-85
6 (2d Cir. 2006) (“[W]e reject [petitioner’s] claim that the
7 notices to appear were defective because they did not advise
8 him in his native Portuguese . . . . The relevant statute
9 does not require that notice be provided in any particular
10 language.”). The record adequately demonstrates that Silva-
11 Silva received the requisite oral notice in Portuguese of the
12 time and place of his hearing and the consequences of failing
13 to appear, and the NTA instructed him to appear before an IJ
14 at “Ribicoff Federal Building 450 Main Street Room 509
15 Hartford CONNECTICUT US.” Certified Administrative Record
16 at 118.
17 In sum, because Silva-Silva was personally served with
18 an NTA that listed both his address and hearing location as
19 Connecticut and warned of the consequences of failing to give
20 notice of a change of his address, Silva-Silva has not
21 overcome the presumption of receipt, and the agency did not
7
1 abuse its discretion in declining to rescind his in absentia
2 removal order. See 8 U.S.C. § 1229a(b)(5)(C)(ii); see also
3 Silva-Carvalho Lopes, 517 F.3d at 160; Matter of M-R-A-, 24
4 I. & N. Dec. at 674.
5 For the foregoing reasons, the petition for review is
6 DENIED. All pending motions are DENIED and stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
8