         09-2602-ag
         Rupa v. Holder
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A098 220 639
                               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 9th day of February, two thousand eleven.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROBERT D. SACK,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _______________________________________
12
13       JHAGESHWAR RUPA, AKA RAMESH NASSIAH,
14                Petitioner,
15
16                        v.                                    09-2602-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., U.S. ATTORNEY
19       GENERAL; DEPARTMENT OF HOMELAND
20       SECURITY,
21                 Respondents.
22       _______________________________________
23
24       FOR PETITIONER:                Stephen L.      Rockmacher, Schenectady,
25                                      New York.
26
27       FOR RESPONDENTS:               Tony West, Assistant Attorney General;
28                                      Daniel E. Goldman, Senior Litigation
29                                      Counsel; Brianne Whelan Cohen, Trial
30                                      Attorney,    Office   of    Immigration
31                                      Litigation, Civil Division, United
32                                      States    Department     of    Justice,
33                                      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       Petitioner Jhageshwar Rupa, a native and citizen of

 6   Guyana, seeks review of a May 21, 2009, decision of the BIA,

 7   affirming the September 24, 2007, decision of Immigration

 8   Judge (“IJ”) Philip J. Montante, Jr., finding that he waived

 9   the opportunity to apply for asylum, withholding of removal,

10   and relief under the Convention Against Torture (“CAT”).   In

11   re Jhageshwar Rupa, No. A098 220 639 (B.I.A. May 21, 2009),

12   aff’g No. A098 220 639 (Immig. Ct. Buffalo Sept. 24, 2007).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history of the case.

15       Under the circumstances of this case, we review both the

16   IJ’s and the BIA’s decisions for the sake of completeness.

17   See Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008).    We

18   review an IJ’s decision regarding his discretionary authority

19   to set and extend time limits for filing applications for

20   relief for abuse of discretion.     See Dedji v. Mukasey, 525

21   F.3d 187, 191 (2d Cir. 2008).

22       As an initial matter, Rupa has abandoned any challenge to


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 1   the IJ’s finding that he waived his application for asylum and

 2   withholding of removal.         See Yueqing Zhang v. Gonzales, 426

 3   F.3d 540, 545 n.7 (2d Cir. 2005) (holding that issues not

 4   sufficiently argued in the briefs are considered waived and

 5   normally will not be addressed on appeal).                  Nor does Rupa

 6   challenge the IJ’s decision with regard to his removability

 7   and request for voluntary departure.                Thus, we consider only

 8   Rupa’s challenge to the IJ’s finding that Rupa waived the

 9   opportunity to apply for CAT relief.

10       The agency did not abuse its discretion in finding that

11   Rupa’s request to apply for CAT relief was untimely. IJs have

12   broad discretion in calendar management and may set a filing

13   deadline    for   an   application        for   relief.    See   Morgan    v.

14   Gonzales, 445 F.3d 549, 551 (2d Cir. 2006) (holding that “IJs

15   are accorded wide latitude in calendar management, and [the

16   Court] will not micromanage their scheduling decisions any

17   more than when we review such decisions by district court

18   judges”).     Here, Rupa did not indicate, either during his

19   interview with an Immigration and Customs Enforcement (“ICE”)

20   agent or at his initial hearing before the IJ, that he feared

21   any harm, much less torture, if he were compelled to return to

22   Guyana.      Moreover,     at   his       initial     hearing,   after    his


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 1   application for cancellation of removal was denied, and the IJ

 2   asked whether Rupa was seeking any other relief, Rupa replied,

 3   “Not at this time.”         The IJ then adjourned proceedings,

 4   setting a date five months later for a hearing on whether Rupa

 5   was removable and whether he should be accorded voluntary

 6   departure, the only issues that had been raised at that time.

 7       During       that   five-month        interval,    Rupa    had     every

 8   opportunity to apply for additional relief or to alert the IJ

 9   that he would be raising additional issues at the hearing. He

10   did not do so.      Nor did he advise the IJ at the start of the

11   hearing, when the IJ repeated that the hearing would address

12   the legal issue of removability and the question of voluntary

13   departure, that he had any other issues to raise.

14       Only at the end of the hearing, after Rupa testified

15   about owing money to smugglers, did Rupa’s attorney aks for a

16   “credible    fear   hearing.”     Only       after    government     counsel

17   pointed out that such an interview was not procedurally

18   appropriate and that an application for asylum would be

19   untimely    in   any    event   did       Rupa’s   counsel    mention    the

20   possibility of CAT relief.       He did not seek a continuance for

21   the purpose of making a further application for relief.

22       On this record, the IJ neither abused his discretion in



                                           4
 1   finding that Rupa’s request to file such an application at the

 2   end of his merits hearing was untimely, see Dedji, 525 F.3d at

 3   191, nor denied him a full and fair opportunity to submit an

 4   application for relief, see Li Hua Lin v. U.S. Dept. of

 5   Justice, 453 F.3d 99, 104-05 (2d Cir. 2006).      The IJ had

 6   offered Rupa every opportunity to apply for any relief for

 7   which he might have been eligible, had granted a continuance

 8   to permit Rupa ample time to prepare for a hearing and explore

 9   any additional avenues of relief, and gave explicit notice,

10   both at the time the hearing was scheduled and at its opening,

11   as to the issues to be addressed.     Only at the end of the

12   hearing, after Rupa had testified to the manner of his illegal

13   entry, and after abandoning his untimely suggestion of a

14   possible asylum claim, did Rupa’s counsel argue that “it’s not

15   too late to at least . . . make the CAT claim.”    Even then,

16   after the IJ pointed out that Rupa had not established any

17   basis for such relief, Rupa made no effort to explain how he

18   could qualify for such relief, nor did he seek a continuance

19   to prepare an application or present additional evidence or

20   argument.

21       Additionally, the IJ reasonably determined that Rupa’s

22   proffered excuse, that his attorney had discovered Rupa’s


                                   5
 1   claimed fear only days before the merits hearing, did not

 2   justify his failure to file an application for CAT relief at

 3   some point prior to the conclusion of that hearing.                      Dedji,

 4   525 F.3d at 192.        Furthermore, as the IJ observed, given that

 5   Rupa    had     not    previously   mentioned     his    claimed    fear     of

 6   persecution or torture, either during his extensive interview

 7   with an ICE agent or at his initial hearing before the IJ,

 8   there appeared no credible basis for a CAT claim. The only

 9   fear Rupa expressed at the hearing was a vague fear that if he

10   did not repay the smugglers, and he returned to Guyana, they

11   would look for him and “kill me or something.”                Yet he also

12   expressed a similar fear that the smugglers would also seek

13   him out in Schenectady if he remained in the United States.

14          Accordingly, the IJ reasonably found that Rupa did not

15   demonstrate either good cause for his failure to timely file

16   an application for CAT relief or substantial prejudice, the IJ

17   did not abuse his discretion in finding that Rupa’s request to

18   apply     for    CAT    relief   was   untimely    and    that     any    such

19   application was waived.          See id.

20          For the foregoing reasons, the petition for review is

21   DENIED.    As we have completed our review, any stay of removal

22   that the Court previously granted in this petition is VACATED,


                                            6
1   and any pending motion for a stay of removal in this petition

2   is DISMISSED as moot.

3                               FOR THE COURT:
4                               Catherine O’Hagan Wolfe, Clerk
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