Chavez-Michaca v. Holder , 418 F. App'x 45 ( 2011 )

09-4521-ag
Chavez-Michaca v. Holder
BIA
Brennan, IJ
A074 976 708
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 18th day of April, two thousand eleven.
5
6 PRESENT:
7 ROGER J. MINER,
8 ROBERT D. SACK,
9 REENA RAGGI,
10 Circuit Judges.
11 _______________________________________
12 SUSY CHAVEZ-MICHACA,
13 Petitioner,
14
15 v. 09-4521-ag
16 NAC
17 ERIC H. HOLDER, JR., UNITED STATES
18 ATTORNEY GENERAL; UNITED STATES
19 DEPARTMENT OF JUSTICE,
20 Respondents.
21 _________________________________________
22
23 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, New
24 York.
25
26 FOR RESPONDENTS: Tony West, Assistant Attorney
27 General; Jennifer P. Levings, Senior
28 Litigation Counsel; Katharine E.
29 Clark, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
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 in part and DISMISSED in part.
5 Petitioner Susy Chavez-Michaca, a native and citizen of
6 Mexico, seeks review of an October 14, 2009 decision of the
7 BIA, affirming the February 8, 2008 order of Immigration
8 Judge (“IJ”) Noel Ann Brennan, granting the government’s
9 motion to reconsider her February 4, 2008 order granting
10 Chavez-Michaca’s motion to rescind an in absentia order of
11 deportation. In re Susy Chavez-Michaca, No. A074 976 708
12 (B.I.A. Oct. 14, 2009), aff’g No. A074 976 708 (Immig. Ct.
13 N.Y. City Feb. 8, 2008). We assume the parties’ familiarity
14 with the underlying facts and procedural history of the
15 case.
16 Under the circumstances of this case, we review both
17 the IJ’s and the BIA’s opinions “for the sake of
18 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
19 2008) (internal quotation marks omitted). This Court
20 reviews the agency’s grant of a motion to reconsider for
21 abuse of discretion. Jin Ming Liu v. Gonzales, 439 F.3d
22 109, 111 (2d Cir. 2006) (per curiam); see also 8 C.F.R. §
23 1003.23(b)(1)(iv) (2011) (“The decision to grant or deny a
2
1 motion to reopen or a motion to reconsider is within the
2 discretion of the Immigration Judge.”). The Court reviews
3 de novo constitutional challenges and questions of law. Ali
4 v. Mukasey, 525 F.3d 171, 173 (2d Cir. 2008).
5 The agency did not abuse its discretion in granting the
6 government’s motion to reconsider. A motion to reconsider
7 filed with the IJ must specify errors of fact or law in the
8 IJ’s prior decision. See 8 C.F.R. § 1003.23(b)(2) (2011);
9 see also Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83,
10 90 (2d Cir. 2001). In its motion, the government argued
11 that the IJ’s prior order granting Chavez-Michaca’s motion
12 to rescind her in absentia deportation order was based on
13 the erroneous finding that Chavez-Michaca had not received
14 notice of her hearing. As the government established,
15 Chavez-Michaca received personal service of an Order to Show
16 Cause and Notice of Hearing. See Fuentes-Argueta v. INS,
17 101 F.3d 867, 870–71 (2d Cir. 1996) (noting the requirement
18 of former Immigration and Nationality Act § 242B that an
19 alien be notified of the time and place of a deportation
20 hearing either in person or by certified mail); see also
21 Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009)
22 (recognizing that personal service of a Notice of Hearing
3
1 provided proper notification of a hearing). Thus, we find
2 no abuse of discretion in the IJ’s determination that her
3 prior order granting Chavez-Michaca’s motion to rescind was
4 based on a factual error. See 8 C.F.R. § 1003.23(b)(2)
5 (2011); see also Ke Zhen Zhao, 265 F.3d at 90.
6 Chavez-Michaca also argues that the IJ violated her due
7 process rights by not providing her an opportunity to
8 respond to the government’s motion to reconsider. In the
9 immigration context, “[t]o establish a violation of due
10 process, an alien must show that she was denied a full and
11 fair opportunity to present her claims or that the IJ or BIA
12 otherwise deprived her of fundamental fairness,” Burger v.
13 Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (internal
14 quotation marks omitted), and that she was prejudiced by
15 such error, see Garcia-Villeda v. Mukasey, 531 F.3d 141 (2d
16 Cir. 2008) (“Parties claiming denial of due process in
17 immigration cases must, in order to prevail, allege some
18 cognizable prejudice fairly attributable to the challenged
19 process.” (internal quotation marks omitted)); accord Lattab
20 v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004) (“It is beyond
21 peradventure that before a petitioner in an immigration case
22 may advance a procedural due process claim, he must allege
23 some cognizable prejudice fairly attributable to the
4
1 challenged process.”); cf. United States v. Sanchez, 225
2 F.3d 172, 176 (2d Cir. 2000). Chavez-Michaca has
3 demonstrated neither. The agency’s regulations do not
4 require the IJ to provide an opportunity to respond to a
5 motion to reopen or reconsider, stating only that the IJ
6 “may set and extend time limits for replies to motions to
7 reopen or reconsider.” 8 C.F.R. § 1003.23(b)(1)(iv) (2011)
8 (emphasis added). Moreover, although Chavez-Michaca did not
9 have an opportunity to respond to the government’s motion to
10 reconsider the IJ’s grant of her motion to rescind, she was
11 provided a full and fair opportunity to present her
12 arguments for rescission in her motion to reopen filed
13 before the IJ and in her appeal to the BIA. See Burger, 498
14 F.3d at 134; see also Yuen Jin v. Mukasey, 538 F.3d 143, 157
15 (2d Cir. 2008). As for her argument that she was
16 prejudiced, Chavez-Michaca claims that she would have argued
17 in her response that the administrative record indicated
18 that the date of her missed hearing before the IJ differed
19 from the hearing date provided in her Order to Show Cause
20 and Notice of Hearing. However, despite a transcription
21 error in the record of the hearing, the record clearly
22 demonstrates that her hearing was held on the same date as
5
1 the hearing date provided in her Order to Show Cause and
2 Notice of Hearing. Thus, she has not demonstrated that she
3 was prejudiced. See Burger, 498 F.3d at 134..
4 We lack jurisdiction to consider Chavez-Michaca’s
5 remaining due process claims because she failed to exhaust
6 those claims on appeal to the BIA. See 8 U.S.C.
7 § 1252(d)(1) (2011); Karaj v. Gonzales, 462 F.3d 113, 119
8 (2d Cir. 2006); see also Lin Zhong v. U.S. Dep’t of Justice,
9 480 F.3d 104, 124 (2d Cir. 2007) (concluding that exhaustion
10 of administrative remedies is a predicate of this Court’s
11 subject matter jurisdiction, while the failure to exhaust
12 specific issues is an affirmative defense subject to
13 waiver). The statutory exhaustion requirement is not
14 excused for these constitutional claims because, even though
15 the BIA is without jurisdiction to rule on constitutional
16 claims, see Theodoropoulos v. I.N.S., 358 F.3d 162, 172–73
17 (2d Cir. 2004) (“[T]he BIA does not have jurisdiction to
18 adjudicate constitutional issues.” (internal quotation marks
19 omitted)); United States v. Gonzalez-Roque, 301 F.3d 39, 47-
20 48 (2d Cir. 2002), the BIA was able to provide Chavez-
21 Michaca with the requested relief, i.e., rescission of the
22 IJ’s in absentia deportation order and reopening of her
23 deportation proceedings, see Theodoropoulos, 358 F.3d at
6
1 172-73. Accordingly, we dismiss the petition for review to
2 this extent. See Karaj, 462 F.3d at 121.
3 For the foregoing reasons, the petition for review is
4 DENIED in part and DISMISSED in part. As we have completed
5 our review, any stay of removal that the Court previously
6 granted in this petition is VACATED, and any pending motion
7 for a stay of removal in this petition is DISMISSED as moot.
8 Any pending request for oral argument in this petition is
9 DENIED in accordance with Federal Rule of Appellate
10 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
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