Lopez-Abrego v. Garland ( 2021 )

19-2456
Lopez-Abrego v. Garland
BIA
Cheng, IJ
A078 679 873
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 18th day of November, two thousand twenty-one.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNY CHIN,
9 RICHARD J. SULLIVAN,
10 Circuit Judges.
11 _____________________________________
12
13 MATEO LOPEZ-ABREGO,
14 Petitioner,
15
16 v. 19-2456
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Pankaj Malik, Esq., New York, NY.
24
25 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
26 General; Jessica A. Dawgert ,
27 Senior Litigation Counsel; Lori B.
28 Warlick, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Mateo Lopez-Abrego, a native and citizen of
9 El Salvador, seeks review of a July 11, 2019, decision of the
10 BIA affirming a January 29, 2019, decision of an Immigration
11 Judge (“IJ”) denying his motion to rescind a 2002 removal
12 order and reopen his removal proceedings. In re Mateo Lopez-
13 Abrego, No. A 078 679 873 (B.I.A. July 11, 2019), aff’g No. A
14 078 679 873 (Immig. Ct. N.Y.C. Jan 29, 2019). We assume the
15 parties’ familiarity with the underlying facts and procedural
16 history.
17 We review the IJ’s decision as supplemented by the BIA.
18 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
19 We review the agency’s denial of a motion to rescind and
20 reopen for abuse of discretion. See Alrefae v. Chertoff, 471
21 F.3d 353, 357 (2d Cir. 2006) (“[A] motion to rescind is a
22 type of motion to reopen.”); Kaur v. Bd. of Immigr. Appeals,
23 413 F.3d 232, 233 (2d Cir. 2005) (reviewing denial of motion
2
1 to reopen for abuse of discretion). “An abuse of discretion
2 may be found . . . where the [agency’s] decision provides no
3 rational explanation, inexplicably departs from established
4 policies, is devoid of any reasoning, or contains only summary
5 or conclusory statements; that is to say, where the [agency]
6 has acted in an arbitrary or capricious manner.” Ke Zhen
7 Zhao v. U.S. Dep't of Just., 265 F.3d 83, 93 (2d Cir.
8 2001) (internal citations omitted).
9 A noncitizen who, having received written notice, does
10 not attend a removal proceeding “shall be ordered removed in
11 absentia” if the Government “establishes by clear,
12 unequivocal, and convincing evidence that the written notice
13 was so provided and that the alien is removable.” 8 U.S.C.
14 § 1229a(b)(5)(A). Lopez-Abrego conceded removability, and a
15 hearing notice was mailed to his address of record. To obtain
16 rescission of the resulting removal order, Lopez-Abrego had
17 to show either that he did not receive notice of the hearing
18 or that his failure to appear was due to “exceptional
19 circumstances” that were “beyond [his] control.” Id.
20 § 1229a(b)(5)(C)(i), (e)(1). A motion to rescind based on
21 lack of notice may be filed at any time. Id.
3
1 § 1229a(b)(5)(C)(ii). A motion to rescind based on
2 exceptional circumstances must be made within 180 days after
3 the date of the order of removal, although this deadline may
4 be equitably tolled if, for example, the alien demonstrates
5 ineffective assistance of counsel. Id. § 1229a(b)(5)(C)(i);
6 see Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000). The
7 agency did not abuse its discretion in finding that he failed
8 to satisfy either exception.
9 A presumption of notice applied because the hearing
10 notice was mailed to Lopez-Abrego’s address of record.
11 Alrefae, 471 F.3d at 358–59. Lopez-Abrego did not rebut that
12 presumption because he did not present any evidence to show
13 that he was living at a different address, he took no steps
14 to investigate the status of his proceedings between the in
15 absentia order issued in 2002 and his detention in 2019, he
16 had no pending applications for relief from removal at the
17 time the in absentia order was entered, and he appeared at
18 prior hearings, which indicated his awareness of the
19 proceedings. See Matter of M-R-A-, 24 I. & N. Dec. 665, 674
20 (B.I.A. 2008) (listing factors to be considered); Matter of
21 C-R-C-, 24 I. & N. Dec. 677, 680 (B.I.A. 2008) (considering
4
1 diligence as a factor in evaluating a motion to rescind).
2 Moreover, the agency did not err in rejecting Lopez-
3 Abrego’s allegation of ineffective assistance as a basis for
4 rebutting the presumption of receipt or for excusing the 180-
5 day deadline for moving to rescind based on exceptional
6 circumstances. Lopez-Abrego did not comply with the
7 procedural requirements of Matter of Lozada, 19 I. & N. Dec.
8 637, 639 (B.I.A. 1998). He argues that Matter of Lozada
9 should not apply because it concerns claims of ineffective
10 assistance of counsel, whereas he relied on a notario, who
11 was not an attorney. But the BIA may still require some
12 compliance with Lozada’s procedural requirements for a
13 petitioner requesting equitable tolling based on the
14 ineffective assistance of a non-attorney. See Omar v.
15 Mukasey, 517 F.3d 647, 651 (2d Cir. 2008) (holding that the
16 BIA’s denial of an ineffective assistance claim regarding a
17 non-attorney immigration consultant based on non-compliance
18 with Lozada was “neither arbitrary nor capricious”). Lopez-
19 Abrego argues that he could not report a non-attorney to a
20 state disciplinary committee, one of the factors under
21 Lozada, but he does not explain why he did not make an effort
5
1 to comply with Lozada’s other requirements. This is not a
2 case where ineffective assistance is clear on the record
3 because there is no evidence, other than Lopez-Abrego’s
4 uncorroborated allegations, that he did not live at the
5 address of record and that he was not informed of the hearing.
6 Cf. Yi Long Yang v. Gonzales, 478 F.3d 133, 143 (2d Cir. 2007)
7 (holding that ineffective assistance was clear on the face of
8 the record where the attorney was subsequently disbarred).
9 Lopez-Abrego’s argument that the BIA should have followed
10 a non-precedential decision, In re Musa Imeri, 2011 WL 444687111 (B.I.A. Sept. 8, 2011), fails because the BIA is not bound by
12 unreported decisions, see Matter of Echeverria, 25 I. & N.
13 Dec. 512, 519 (B.I.A. 2011); see also Gousse v. Ashcroft, 339
14 F.3d 91, 101 (2d Cir. 2003), and because that case involved
15 a hearing notice that was returned as undeliverable.
16 For the foregoing reasons, the petition for review is
17 DENIED. All pending motions and applications are DENIED and
18 stays VACATED.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe,
21 Clerk of Court
6