Parmar v. Holder , 439 F. App'x 61 ( 2011 )

10-2219-ag
Parmar v. Holder
BIA
Montante, IJ
A098 927 831
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 29th day of September, two thousand eleven.
5
6 PRESENT:
7 JOSEPH M. MCLAUGHLIN,
8 GUIDO CALABRESI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 VIVEK PARMAR,
14 Petitioner,
15
16 v. 10-2219-ag
17 NAC
18 JOHN MORTON, ACTING ASSISTANT
19 SECRETARY, UNITED STATES IMMIGRATION
20 AND CUSTOMS ENFORCEMENT, ET AL.,
21 Respondents.
22 _______________________________________
23
24 FOR PETITIONER: Heidi J. Meyers, New York, NY.
25
26 FOR RESPONDENTS: Tony West, Assistant Attorney
27 General; William C. Peachey,
28 Assistant Director; Eric W.
29 Marsteller, Trial Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Vivek Parmar, a native and citizen of India, seeks
6 review of a May 24, 2010 order of the BIA affirming
7 immigration judge (“IJ”) Philip J. Montante, Jr.’s January
8 20, 2009, denial of Parmar’s motion to reopen and rescind
9 his in absentia removal order. In re Vivek A. Parmar, No.
10 A098 927 831 (B.I.A. May 24, 2010); aff’g No. A098 927 831
11 (Immig. Ct. Buffalo, NY, Jan. 20, 2009). We assume the
12 parties’ familiarity with the underlying facts and
13 procedural history of this case.
14 We review the agency’s denial of a motion to reopen for
15 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
16 Cir. 2006). An in absentia order of removal may be
17 rescinded only “upon a motion to reopen filed within 180
18 days after the date of the order of removal if the alien
19 demonstrates that the failure to appear was because of
20 exceptional circumstances.” See 8 U.S.C.
21 § 1229a(b)(5)(C)(i).
22 As an initial matter, Parmar’s contention that he did
23 in fact appear at his individual hearing is unavailing for
2
1 several reasons. First, his January 2008 motion requesting
2 that he “be allowed to appear telephonically for all master
3 calendars” and “only appear in person on the individual
4 hearing date,” did not waive his duty to appear in person
5 for his November 13, 2008, hearing because it was an
6 individual hearing, not a master calendar. See Immigration
7 Court Practice Manual § 4.8(m)(iii)(A) (providing that “[a]
8 waiver of a representative’s appearance at a master calendar
9 hearing does not constitute a waiver of the respondent’s
10 appearance”). Moreover, Parmar’s October 2008 motion
11 requesting “either a written decision or for [Parmar] and
12 counsel to appear telephonically for the oral decision,”
13 referred only to the IJ’s expected decision on his motion to
14 suppress evidence and terminate his proceedings, on which
15 the IJ issued a written decision. Notably, Parmar prepared
16 and mailed the motion one day prior to the IJ’s issuance of
17 the notice for his November 13, 2008, individual hearing,
18 and therefore the motion could not have requested permission
19 to appear telephonically at a hearing that had not yet been
20 scheduled. Id. at § 4.8(n)(v) (permission to appear
21 telephonically “does not constitute permission . . . to
22 appear by telephone at any future hearing”). In any event,
3
1 the IJ denied the motion. That the denial order was not
2 mailed until November 13, 2008, the date of Parmar’s
3 hearing, does not excuse his failure to appear in person.
4 Id. at § 4.8(n)(iii)(B) (the “mere filing” of a motion to
5 appear by telephone does not excuse appearance, and
6 “respondent must appear in person unless the motion has been
7 granted”).
8 Parmar also asserts that, even if the IJ did not grant
9 his motion to appear telephonically, two paralegals from his
10 attorney’s office called the immigration court and spoke to
11 anonymous individuals who informed them that both he and his
12 attorney could appear telephonically. However, as the IJ
13 noted in his decision, the court clerk with whom Parmar
14 allegedly spoke stated that “she never spoke with anybody
15 from counsel’s office relative to a telephonic hearing,” and
16 that she “also asked the entire court staff and they
17 responded that they had never advised counsel’s office that
18 the Immigration Judge granted a telephonic [hearing].”
19 Therefore, the IJ, in considering Parmar’s motion to reopen,
20 was confronted with two contradictory stories and chose to
21 credit one over the other. The record does not compel a
22 different result. See 8 U.S.C. § 1252(b)(4)(B) (agency’s
23 findings of fact are “conclusive unless any reasonable
4
1 adjudicator would be compelled to conclude to the
2 contrary”); see also Shao v. Mukasey, 546 F.3d 138, 171 (2d
3 Cir. 2008) (“We do not ourselves attempt to resolve
4 conflicts in record evidence, a task largely within the
5 discretion of the agency.”).
6 Parmar also failed to demonstrate exceptional
7 circumstances excusing his failure to appear. See 8 U.S.C.
8 § 1229a(b)(5)(C)(i). In this context, “exceptional
9 circumstances” are those “beyond the control of the alien.”
10 8 U.S.C. 1229a (e) (1). These include “battery or extreme
11 cruelty to the alien or any child or parent of the alien,
12 serious illness of the alien, or serious illness or death of
13 the spouse, child, or parent of the alien, but not . . .
14 less compelling circumstances.” Id. Parmar’s situation
15 does not constitute “exceptional circumstances” under the
16 statutory definition of that term. Parmar’s reliance on
17 Aris v. Mukasey, 517 F.3d 595 (2d Cir. 2008), is also
18 unavailing, because Aris concerned a motion to reopen filed
19 with the BIA alleging ineffective assistance of counsel.
20 Parmar has not raised an ineffective assistance claim either
21 here or before the agency. See Karaj v. Gonzales, 462 F.3d
22 113, 119 (2d Cir. 2006). Thus, although ineffective
23 assistance of counsel “can constitute exceptional
5
1 circumstances excusing the alien’s failure to appear at a
2 deportation hearing,” Aris, 517 F.3d at 599, there is no
3 ineffective assistance claim before us.
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
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