         09-4996-ag
         Bhela v. Holder
                                                                                       BIA
                                                                              A073 669 376

                           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 7th day of February, two thousand eleven.
 5
 6       PRESENT:
 7            JOSÉ A. CABRANES,
 8            BARRINGTON D. PARKER,
 9            DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11       _________________________________________
12
13       UJJALPAL SINGH BHELA,
14                Petitioner,
15
16                     v.                                          09-4996-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                Viney K. Gupta, Orange, California.
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney
26                                      General; Mary Jane Candaux,
27                                      Assistant Director; Kiley L. Kane,
28                                      Trial Attorney, Office of
29                                      Immigration Litigation, United
30                                      States Department of Justice,
31                                      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.

 5       Petitioner Ujjalpal Singh Bhela, a native and citizen

 6   of India, seeks review of the November 17, 2009, decision of

 7   the BIA denying his motion to reopen.   In re Ujjalpal Singh

 8   Bhela, No. A073 669 376 (B.I.A. Nov. 17, 2009).   We assume

 9   the parties’ familiarity with the underlying facts and

10   procedural history of the case.

11       The majority of the issues raised by Bhela are not

12   properly before us.   Bhela asks us to vacate his in absentia

13   removal order from 1999.   Under 8 U.S.C. § 1252(d)(1), we

14   “may review a final order of removal only if . . . the alien

15   has exhausted all administrative remedies available to the

16   alien as of right.”   Bhela failed to challenge the IJ’s in

17   absentia removal order, or the IJ’s denial of his motion to

18   reopen and rescind that order, in his 2009 motion to reopen

19   with the BIA.   Moreover, Bhela did not appeal either the

20   1999 IJ decision entering an in absentia removal order

21   against him, or the IJ’s denial of his motion to reopen

22   proceedings in order to rescind that in absentia order.

23   Accordingly, the merits of Bhela’s in absentia removal order


                                   2
 1   are not properly before us, and, as a statutory matter, we

 2   lack jurisdiction to review that order.   See 8 U.S.C.

 3   § 1252(b)(1) (requiring a petition for review to be filed

 4   within thirty days of the final order of removal); Stone v.

 5   INS, 514 U.S. 386, 394 (1995); Malvoisin v. INS, 268 F.3d

 6   74, 75 (2d Cir. 2001).

 7       Bhela also claims, for the first time in his lengthy

 8   immigration proceedings, ineffective assistance by his

 9   former counsel, who represented him in the immigration

10   proceedings that commenced in 1997.   In addition to the

11   statutory requirement that a petitioner exhaust the

12   categories of relief he seeks, 8 U.S.C. § 1252(d)(1), a

13   petitioner must also raise to the BIA the specific issue he

14   later raises to this Court.   See Foster v. INS, 376 F.3d 75,

15   78 (2d Cir. 2004).   While not jurisdictional, this

16   judicially imposed exhaustion requirement is mandatory.     Lin

17   Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d

18   Cir. 2007).   Bhela failed to raise ineffective assistance of

19   counsel in either his initial appeal to the BIA, or in his

20   2009 motion to reopen with the BIA, and thus, we decline to

21   consider this unexhausted issue.

22       Bhela further argues that the BIA abused its discretion

23   in denying his motion to reopen.   Because Bhela’s motion to


                                   3
 1   reopen was untimely, and in his motion, he alleged neither

 2   ineffective assistance of counsel, which may have tolled the

 3   time period, nor changed country conditions, which may

 4   constitute an exception to the time limit, the BIA construed

 5   the motion as a request for it to exercise its sua sponte

 6   authority to reopen proceedings at any time.    See 8 C.F.R.

 7   § 1003.2(a).   The BIA then found that it lacked authority to

 8   reopen proceedings because Bhela had self-executed his

 9   outstanding in absentia removal order.    The regulations

10   provide that a motion to reopen “shall not be made by . . .

11   [an alien] subsequent to his or her departure from the

12   United States.”   8 C.F.R. § 1003.2(d).   The BIA has

13   interpreted this provision as depriving it of jurisdiction

14   to exercise its sua sponte reopening authority after an

15   alien has departed the United States, and we have deferred

16   to that interpretation.   See Xue Yong Zhang v. Holder, 617

17   F.3d 650, 660-61 (2d Cir. 2010); In re Armendarez-Mendez, 24

18   I. & N. Dec. 646 (B.I.A. 2008).

19       In concluding that it lacked jurisdiction to reopen,

20   the BIA failed to consider either Bhela’s pending self-

21   petition as the abused spouse of a United States citizen, or

22   the special rule governing motions to reopen by those

23   seeking relief as the battered spouse of a United States


                                   4
 1   citizen.   See 8 U.S.C. § 1229a(c)(7)(C)(iv).    However, any

 2   remand would be futile, because we can “confidently predict”

 3   that even if the agency were to consider Bhela’s motion as

 4   governed by the special rule, it would deny the motion.       See

 5   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d

 6   Cir. 2006) (holding that remand is futile “when the

 7   reviewing court can ‘confidently predict’ that the agency

 8   would reach the same decision absent the errors that were

 9   made” (quoting Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d

10   391, 395 (2d Cir. 2005)).   The statute governing a motion to

11   reopen by an alien seeking relief as the abused spouse of a

12   United States citizen provides that such a motion to reopen

13   must be filed within one year of the final administrative

14   order of removal.   See 8 U.S.C. § 1229a(c)(7)(C)(iv)(III).

15   Bhela was ordered removed in absentia in 1999, and his

16   motion to the IJ to reopen proceedings and rescind that

17   order was denied that same year.   Thus, there is no question

18   that Bhela’s 2009 motion to reopen was untimely even under

19   the special rule for abused spouses.   See id.    Moreover,

20   Bhela did not allege any extraordinary circumstances, or any

21   extreme hardship to his children, that would excuse the one

22   year filing deadline.   See id.

23       For the foregoing reasons, the petition for review is
                                   5
1   DENIED.   As we have completed our review, any stay of

2   removal that the Court previously granted in this petition

3   is VACATED, and any pending motion for a stay of removal in

4   this petition is DISMISSED as moot. Any pending request for

5   oral argument in this petition is DENIED in accordance with

6   Federal Rule of Appellate Procedure 34(a)(2), and Second

7   Circuit Local Rule 34.1(b).

8                                 FOR THE COURT:
9                                 Catherine O’Hagan Wolfe, Clerk




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