    09-4102-ag
    Patel v. Holder
                                                                                  BIA
                                                                             Videla, IJ
                                                                          A073 148 936




                       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.


         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 30 th day of June, two thousand ten.

    PRESENT:
             JON O. NEWMAN,
             ROBERT A. KATZMANN,
             PETER W. HALL,
                    Circuit Judges.
    _________________________________________

    REENABEN NARINDERBHAI PATEL,
    a.k.a. KAMALABEN KISHORBHAI PATEL,
    a.k.a. MINAKSHI PATEL
             Petitioner,

                      v.                                     09-4102-ag
                                                             NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _________________________________________

    FOR PETITIONER:               Harold D. Block, Milwaukee,
                                  Wisconsin.
    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General, Civil Division; Jennifer P.
                                  Levings, Senior Litigation Counsel;
                       Jennifer R. Khouri, Trial Attorney,
                       Office of Immigration Litigation,
                       United States Department of Justice,
                       Washington, D.C.

     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.

     Petitioner Reenaben Narinderbhai Patel, a native and
citizen of India, seeks review of a September 2, 2009, order
of the BIA, affirming a November 20, 2008, decision of
Immigration Judge (“IJ”) Gabriel C. Videla, which denied her
motion to reopen. In re Reenaben Narinderbhai Patel a.k.a.
Kamalaben Kishorbhai Patel, No. A073 148 936 (B.I.A. Sept.
2, 2009), aff’g No. A073 148 936 (Immig. Ct. N.Y. City Nov.
20, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.

     Motions to reopen in absentia exclusion orders are
governed by different rules depending on whether the movant
seeks to rescind the order or present new evidence. 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) (en banc).
When, as here, an alien files a motion that seeks rescission
of an in absentia exclusion order, we review the BIA’s
denial of the motion for abuse of discretion. See Alrefae
v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006).

     Although the agency’s regulations provide that in
absentia orders of exclusion are not subject to time or
numerical limitations, the regulations require an alien to
demonstrate that she had reasonable cause for her failure to
appear. See 8 C.F.R. § 1003.23(b)(4)(iii)(B); In re N-B-,
22 I. & N. Dec. 590, 592-93 (BIA 1999). Here, Patel was in
exclusion proceedings, and there was no deadline applicable
to her motion to rescind. See id at 593. However, the
agency did not abuse its discretion in finding that she
failed to demonstrate reasonable cause for her failure to
appear. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005).




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     Patel first asserts that she failed to appear at her
exclusion proceedings because she was not provided with
proper notice. In support of this argument, she highlights
defects in the “Notice to Applicant for Admission
Detained/Deferred For Hearing Before Immigration Judge”
(“From I-122"), notes that the IJ entered the exclusion
order on a date different from her hearing date, and raises
questions as to whether she received an accurate list of
legal providers. However, she failed to raise these issues
before the agency. As such, the issues are unexhausted, and
we will not consider them. See Foster v. INS, 376 F.3d 75,
77-78 (2d Cir. 2004); Lin Zhong v. U.S. Dep’t of Justice,
480 F.3d 104, 119-20 (2d Cir. 2007).

     Patel also argues that she failed to receive proper
notice because “the full implications of an order of
exclusion were [not] explained” to her and that she was “not
certain” that she was told the date of her proceedings
through a Hindi interpreter. Yet, before the agency, she
conceded that she received the Form I-122 and that it was
explained to her in Hindi. While Patel alleges that she was
“not certain” that she was told the date of her proceedings
through a Hindi interpreter, the INA does not require that
notice be provided in any particular language. See Lopes v.
Gonzales, 468 F.3d 81, 84-85 (2d Cir. 2006). Thus, the
agency did not abuse its discretion in concluding, in the
words of the IJ, that “such vague contentions [do not]
constitute reasonable cause for [Patel’s] failure to appear
at her exclusion proceedings.”

     Finally, Patel argues that the agency’s decision is
erroneous because the government failed to meet its burden
of proving that she was excludable by clear and convincing
evidence in her underlying proceedings. That argument is
without merit because it does not relate to Patel’s burden
of establishing reasonable cause for her failure to appear.
8 C.F.R. § 1003.23(b)(4)(iii)(B). Nonetheless, in exclusion
proceedings, the burden is upon the applicant to establish
that she is not inadmissible under any provision of the Act.
See 8 U.S.C. § 1361. Accordingly, the IJ properly ordered
her removed when she failed to appear for her exclusions
proceedings, see 8 C.F.R. § 1003.26, and the agency did not
abuse its discretion in denying her motion to reopen for
failure to establish a reasonable cause for her failure to
appear.


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     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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