De Carvalho-Cruz v. Barr ( 2020 )

18-2067
De Carvalho-Cruz v. Barr
BIA
Straus, IJ
A098 323 097/098
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 15th day of September, two thousand twenty.
PRESENT:
JON O. NEWMAN,
JOSEPH F. BIANCO,
WILLIAM J. NARDINI,
Circuit Judges.*
_____________________________________
ANDRE DA SILVA, AKA ANDRE LUIZ
DA SILVA, MONIELE CAMILA DE
CARVALHO-CRUZ, AKA MONIELE
CAMILA DA SILVA,
Petitioners,
v. 18-2067
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
* Circuit Judge Peter W. Hall, originally a member of the panel, is
currently unavailable. Circuit Judge Jon O. Newman has replaced Judge
Hall on the panel for this matter. See 2d Cir. IOP E(b).
_____________________________________
FOR PETITIONERS: Melinda M. Basaran, BK Law Firm
LLC, Clifton, NJ.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Holly M. Smith, Senior
Litigation Counsel; David Kim,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioners Andre Da Silva (“Andre”) and Moniele Camila
De Carvalho-Cruz (“Moniele”), natives and citizens of Brazil,
seek review of a June 15, 2018, decision of the BIA affirming
a September 27, 2017, decision of an Immigration Judge (“IJ”)
denying their motion to reopen their immigration proceedings
and rescind their in absentia removal orders. In re De
Carvalho-Cruz, No. A 098 323 097/098 (B.I.A. June 15, 2018),
aff’g No. A 098 323 097/098 (Immig. Ct. Hartford Sept. 27,
2017). We assume the parties’ familiarity with the
underlying facts and procedural history.
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We have reviewed the IJ’s decision as modified and
supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Motions to reopen
in absentia removal orders are governed by different rules
depending on whether the movant seeks to rescind the order or
present new evidence of eligibility for relief from removal.
See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In
re M-S-, 22 I. & N. Dec. 349, 353–55 (BIA 1998). Accordingly,
when, as here, an alien files a motion that seeks both
rescission of an in absentia removal order and reopening of
removal proceedings based on new claims for eligibility for
relief, “we treat the motion as comprising distinct motions
to rescind and to reopen.” Alrefae v. Chertoff, 471 F.3d
353, 357 (2d Cir. 2006); see also Maghradze v. Gonzales, 462
F.3d 150, 152 n.1 (2d Cir. 2006). We review the denial of a
motion to rescind an in absentia removal order under the same
abuse of discretion standard applicable to motions to reopen.
See Alrefae, 471 F.3d at 357; see also Kaur v. BIA, 413 F.3d
232, 233 (2d Cir. 2005).
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Motion to Rescind
As relevant here, there are two grounds to rescind an in
absentia removal order: (1) lack of notice of the hearing,
and (2) exceptional circumstances for failure to appear if
rescission is requested within 180 days. 8 U.S.C.
§ 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii). Andre
asserts a lack of notice, and Moniele argues that she is
entitled to rescission on both grounds.
If, as here, notice is “served via regular mail” rather
than certified mail, there is “a ‘less stringent, rebuttable
presumption’ of receipt.” Silva-Carvalho Lopes v. Mukasey,
517 F.3d 156, 159 (2d Cir. 2008) (quoting Alrefae, 471 F.3d
at 359). The agency “must consider all of the petitioner’s
evidence (circumstantial or otherwise) in a practical
fashion, guided by common sense, to determine whether the
slight presumption of receipt of regular mail has more
probably than not been overcome.” Id. at 160; see also Matter
of M-R-A-, 24 I. & N. Dec. 665, 674 (B.I.A. 2008) (providing
a non-exhaustive list of factors that may be relevant to this
inquiry). For aliens who receive notice of their obligation
to inform the immigration court of any change in address and
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of the consequences of failing to do so, the “requirement
that an alien ‘receive’ notice [is] constructively satisfied
if notice is properly provided and the alien changes address
without informing” the agency. Maghradze, 462 F.3d at 154;
see 8 U.S.C. § 1229(a)(1)(F), (a)(2).
Moniele and Andre do not dispute that the agency mailed
their hearing notices to the address that they had provided.
Accordingly, the agency reasonably concluded that a
presumption of receipt applied. See Silva-Carvalho Lopes,
517 F.3d at 159. The agency also reasonably concluded that
Moniele and Andre had not rebutted that presumption. As a
preliminary matter, Moniele and Andre were both informed of
their obligation to notify the agency of any address changes.
Neither affirmed that they still lived at the address they
provided to the agency during the relevant period, and there
is no other evidence showing that they had remained at that
address (rather than changing their address without informing
the agency). Even assuming that they remained at that
address at the time of mailing, however, the BIA reasonably
concluded that they did not rebut the presumption of receipt.
Significantly, Moniele asserted in her affidavit only that
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she did not know if she had received a notice, not that she
had not received one. Neither Moniele nor Andre had applied
for relief prior to the removal order, and despite having
notice that they were in removal proceedings, neither took
any steps to apply for relief from removal or inquire of the
agency regarding the status of those proceedings for more
than a decade. See Matter of M-R-A-, 24 I. & N. Dec. at 674
(prior applications for relief and evidence of diligence may
be probative of nonreceipt). Moreover, as discussed below
in connection with the motion to reopen, Moniele has not
demonstrated prima facie eligibility for relief from removal.
See id. (prima facie eligibility for relief may also be
probative of nonreceipt).
Moniele and Andre argue that the agency’s proceedings
violated due process because the IJ did not explicitly discuss
some of the relevant factors. But the IJ gave “reasoned
consideration to the [motion], and made adequate findings,”
and did not need to “expressly parse or refute on the record
each individual argument or piece of evidence offered by the
petitioner.” Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d
Cir. 2007) (internal quotation marks omitted); see also Xiao
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Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d
Cir. 2006) (“[W]e presume that [the agency] has taken into
account all of the evidence before [it], unless the record
compellingly suggests otherwise.”). Because these factors
did not rebut the presumption of receipt, Moniele and Andre
cannot show they were prejudiced by the IJ’s failure to
address these issues more thoroughly, and therefore cannot
show a due process violation. See Miller v. Mukasey, 539
F.3d 159, 164 (2d Cir. 2008) (alien must establish prejudice
to prevail on a due process claim). They also argue that the
BIA erred by failing to consider evidence of Moniele’s
psychological condition in the context of her claim that she
did not receive notice, but they do not explain how this
condition would prevent her from learning of her hearing date
or why her statements to a psychologist regarding whether she
received notice should be granted more weight than her
affidavit on that subject.
Further, Moniele’s motion for rescission based on
exceptional circumstances was indisputably filed outside the
180-day period for such motions. See 8 U.S.C.
§ 1229a(b)(5)(C)(i). Even if the motion were timely, Moniele
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did not show that she was entitled to reopening on this basis
because she did not establish that the alleged exceptional
circumstances—the abuse she suffered in Brazil and the
psychological consequences of that abuse—prevented her from
appearing at her hearing. See id. (providing for rescission
if the alien demonstrates failure to appear was “because of”
exceptional circumstances); see also 8 C.F.R.
§ 1003.23(b)(4)(iii) (providing that exceptional
circumstances include “serious illness of the alien or
serious illness or death of an immediate relative of the
alien, but not . . . less compelling circumstances”).
Accordingly, because they did not rebut the presumption
that they received their hearing notices or establish that
extraordinary circumstances prevented them from appearing as
required, the agency did not abuse its discretion in denying
Moniele’s and Andre’s motions to rescind their in absentia
removal orders. See 8 U.S.C. § 1229a(b)(5)(C).
Motion to Reopen
Generally, an alien seeking to reopen may file one motion
to reopen no later than 90 days after the final administrative
decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
8
§§ 1003.2(c)(2), 1003.23(b)(1). Moniele’s motion to reopen
was indisputably untimely filed more than 12 years after her
final removal order. However, the time limitation may be
excused in order to apply for asylum “based on changed country
conditions arising in the country of nationality or the
country to which removal has been ordered.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.23(b)(4)(i).
In order to obtain reopening, an alien must also establish a
prima facie case for the underlying substantive relief
sought. See INS v. Abudu, 485 U.S. 94, 104 (1988).
Moniele argues that her country conditions evidence
established a significant increase in the rate of violence
against women, which was material to her risk of experiencing
serious harm in Brazil, and therefore to her claim for
humanitarian asylum, even if it was not otherwise material to
her claim based on abuse by her father; she also emphasizes
that the future harm for the purposes of humanitarian asylum
need not be on account of a protected ground. Humanitarian
asylum is available where there has been past persecution on
account of a protected ground and the applicant no longer has
a well-founded fear of future persecution on that basis, but
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faces “other serious harm” upon removal. 8 C.F.R.
§ 1208.13(b)(1)(iii). Accordingly, Moniele is correct that
a change in country conditions affecting her risk of future
harm unrelated to a protected ground could be material to her
claim—but only if she has suffered past persecution on account
of a protected ground. See id. Moniele has not established
that her claimed past harm, which was abuse by her father,
occurred on account of any protected ground. 1 Because she
did not demonstrate a nexus between her past harm and a
protected ground, she did not establish prima facie
1 As she contends in her reply brief, Moniele argued before
the IJ that her father abused her because of her membership
in a particular social group consisting of members of her
family. She failed to exhaust this issue before the BIA and
waived it by failing to address it in her opening brief to
this Court. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
104, 119–20 (2d Cir. 2007) (describing issue exhaustion as
“mandatory”); Evangelista v. Ashcroft, 359 F.3d 145, 155 n.4
(2d Cir. 2004) (declining to consider issue raised for first
time in reply brief). Regardless, she did not show that her
family is viewed as a socially distinct group in Brazil. See
Paloka v. Holder, 762 F.3d 191, 196 (2d Cir. 2014) (to
constitute a particular social group, a group must be
“(1) composed of members who share a common immutable
characteristic, (2) defined with particularity, and
(3) socially distinct within the society in question”
(internal quotation marks omitted)). Being a victim of a
crime is not in itself a basis for asylum. See Melgar de
Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999) (harm
suffered as a result of “general crime conditions” does not
constitute persecution on account of a protected ground).
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eligibility for asylum (including humanitarian asylum), and
the changed conditions were not material to her claim. See
8 U.S.C. § 1229a(c)(7)(C)(ii); Abudu, 485 U.S. at 104.
Sua Sponte Reopening
Moniele and Andre have waived any challenge to the denial
of sua sponte reopening by not sufficiently raising it in
their brief to this Court. See Norton v. Sam’s Club, 145
F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued
in the briefs are considered waived and normally will not be
addressed on appeal.”). In any event, we lack jurisdiction
to review the agency’s “entirely discretionary” decision
declining to reopen sua sponte, except where the agency
misperceived the law and denied reopening based on a mistaken
belief that reopening would be futile. Ali v. Gonzales, 448
F.3d 515, 518 (2d Cir. 2006); see Mahmood v. Holder, 570 F.3d
466, 469 (2d Cir. 2009). That exception does not apply here
because the BIA denied reopening on the grounds that the
hardships that Moniele experienced were not “exceptional” and
did not warrant a favorable exercise of discretion.
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Omission of Hearing Information from Notice to Appear
Finally, Moniele’s and Andre’s challenge to the
immigration court’s jurisdiction to order their removal is
foreclosed by our decision in Banegas Gomez v. Barr, 922 F.3d
101 (2d Cir. 2019). Moniele and Andre argue that, pursuant
to Pereira v. Sessions, 138 S. Ct. 2105 (2018), their notices
to appear (“NTAs”) were insufficient to confer jurisdiction
because they did not include a hearing date or time. In
Banegas Gomez, however, we held that Pereira does not “void
jurisdiction in cases in which an NTA omits a hearing time or
place” and “an NTA that omits [this] information . . . is
nevertheless adequate to vest jurisdiction in the Immigration
Court, at least so long as a notice of hearing specifying
this information is later sent to the alien.” 922 F.3d at
110, 112. Moniele’s and Andre’s NTAs did not specify the
time or date of their hearings, but the record reflects that
the agency sent them both hearing notices that included the
omitted information and, as discussed above, Moniele and
Andre did not rebut the presumption that they received those
notices. Accordingly, the immigration court had jurisdiction
to order their removal. Banegas Gomez, 922 F.3d at 112.
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For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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