      09-3453-ag
      Patel v. Holder

1                           UNITED STATES COURT OF APPEALS
2                               FOR THE SECOND CIRCUIT

3                                SUMMARY ORDER
4 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
5 FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
6 APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
7 IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
8 ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER
9 MUST   SERVE   A   COPY   OF   IT   ON   ANY   PARTY   NOT   REPRESENTED   BY   COUNSEL.

10    At a stated term of the United States Court of Appeals for the
11    Second Circuit, held at the Daniel Patrick Moynihan United States
12    Courthouse, 500 Pearl Street, in the City of New York, on the
13    Twenty-second day of July, two thousand ten.

14    PRESENT:

15                ROGER J. MINER,
16                ROBERT D. SACK,
17                PETER W. HALL,

18                             Circuit Judges.

19    --------------------------------------
20     Minita Baki Dashrath Patel,

21                         Petitioner,

22                 - v -                                           No. 09-3453-ag

23     Eric H. Holder, Jr., United States
24     Attorney General,

25                         Respondent.

26    --------------------------------------


27    Appearing for Petitioner:          Frank B. Lindner, Yardley, P.A.


28    Appearing for Respondent:          Channah M. Farber, Attorney (Tony
29                                       West, Assistant Attorney General, John
30                                       S. Hogan, Senior Litigation Counsel,
31                                       on the brief), Office of Immigration
1                               Litigation, Civil Division, United
2                               States Department of Justice,
3                               Washington, D.C.

4         Petition for review of a decision by the Board of
5    Immigration Appeals ("BIA").

6         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
7    DECREED that the petition for review is DENIED.

 8        Petitioner Minita Baki Dashrath Patel, a native and citizen
 9   of India, seeks review of a July 16, 2009, order of the BIA
10   affirming the October 19, 2007 decision of Immigration Judge
11   ("IJ") Michael Rocco, denying Patel's motion to rescind the order
12   of deportation (which would under current law be referred to as
13   an order of removal) issued against her and reopen the
14   proceedings pursuant to INA § 242B(c), 8 U.S.C. § 1252b(c) (1994)
15   (repealed, effective 1997, and recodified, as amended, without
16   material change, at INA § 240(b)(5)(C), 8 U.S.C. § 1229a(5)(C)
17   (2005)). See In re Minita Baki Dashrath Patel, No. A074 118 224
18   (B.I.A. July 16, 2009), aff'g No. A 74 118 224 (Immig. Ct.
19   Buffalo, NY, Oct. 19, 2007). We assume the parties' familiarity
20   with the underlying facts and procedural history of the case.

21        Where, as here, the BIA's decision affirms the IJ's decision
22   without rejecting any portion of the IJ's decision, but
23   emphasizing particular aspects of its reasoning, we review both
24   decisions. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 262 (2d
25   Cir. 2007). We review the BIA's denial of the motion to rescind
26   and reopen for abuse of discretion. See, e.g., Alrefae v.
27   Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). "The standard is
28   highly deferential." Rashid v. Mukasey, 533 F.3d 127, 130 (2d
29   Cir. 2008) (internal quotation marks omitted). Moreover,
30   "although a motion to rescind is a type of motion to reopen," we
31   consider as two separate motions Patel's motion to rescind the
32   order of deportation issued against her in absentia, and her
33   motion to reopen her deportation proceedings in order to apply
34   for an adjustment of status. Alrefae, 471 F.3d at 357.

35        In denying Patel's motion to rescind, both the BIA and the
36   IJ relied, in large part, on Patel's lack of "due diligence" in
37   making the motion. The BIA reasoned:

38             [T]he Board has discretion to deny a motion
39             to reopen even if the party has made out a
40             prima facie case for relief. Here, [Patel]
41             did not seek reopening of her order of
42             deportation based on lack [o]f notice until

                                     2
 1             more than seven years elapsed after she
 2             became aware that she had been ordered
 3             deported from the United States in absentia.
 4             She also apparently waited to do so until she
 5             may have been eligible for an immigration
 6             benefit. . . . [T]he Board will not in the
 7             exercise of discretion reopen these
 8             proceedings in light of the respondent's lack
 9             of due diligence. It was incumbent on the
10             respondent to have requested reopening based
11             on lack of notice within a reasonable period
12             after having become aware of her order of
13             deportation.

14   BIA Op. at 1-2.

15        The IJ noted similarly:

16             [Patel], with full knowledge of her placement
17             in deportation proceedings, did nothing for
18             almost 10 years to ascertain the status of
19             her proceedings, nor has she submitted any
20             circumstantial evidence indicative of any
21             intention to comply with the Court's lawful
22             process. [Patel] had no eligibility for
23             relief through her marriage until her
24             priority date became current in October 2006,
25             after which she surfaced.

26   IJ Op. at 5.

27        Patel's lack of due diligence in pursuing her motion to
28   rescind provided a sufficient basis for the BIA and the IJ to
29   exercise their discretion to deny it. The BIA and the IJ found
30   as a matter of fact that Patel waited multiple years to pursue
31   her motion to rescind because she was waiting until she became
32   eligible for an immigration benefit by virtue of her marriage.
33   "[G]aming of the system in an effort to avoid deportation is not
34   tolerated by the existing regulatory scheme." Wang v. BIA, 437
35   F.3d 270, 274 (2d Cir. 2006). We have repeatedly, in non-
36   precedential decisions, upheld the denial of motions to rescind
37   on that basis in circumstances quite similar to those in this
38   case. See, e.g., Yoga Singh v. Holder, No. 09-1419-ag, 2010 WL
39   1170359, at *1 (2d Cir. Mar. 25, 2010) (summary order)); Jie
40   Chen v. Holder, 332 F. App'x 685, 687 (2d Cir. June 23, 2009)
41   (summary order).



                                     3
1         Here, the agency's denial of Patel's motion to rescind was
2    supported by its finding that she did not diligently pursue that
3    motion, and was not an abuse of discretion.

4         The BIA also denied Patel's motion to reopen her proceedings
5    to apply for an adjustment of status on the basis of her lack of
6    due diligence.

 7             We recognize that respondent is now the
 8             spouse of a United States citizen, and she
 9             may be eligible for a grant of adjustment of
10             status if the Board were to reopen those
11             proceedings. However, the Board will not in
12             the exercise of discretion reopen these
13             proceedings in light of the respondent's lack
14             of due diligence.

15   BIA Op. at 2.

16        The relief of adjustment of status is discretionary. See,
17   e.g., Mariuta v. Gonzales, 411 F.3d 361, 365 (2d Cir. 2005). We
18   lack jurisdiction to review the BIA's denial, on discretionary
19   grounds, of a motion to reopen seeking the discretionary
20   underlying relief of adjustment of status. See id. at 366.

21        Because the BIA denied Patel's motion to reopen to seek the
22   relief of an adjustment of status on discretionary grounds, we
23   lack jurisdiction to review that decision.

24        The IJ, however, appears to have denied the motion to reopen
25   for adjustment of status on the basis that the motion was
26   untimely.

27             [W]here the Respondent is eligible for relief
28             that was unavailable at the time of the in
29             absentia hearing, such motions [to reopen
30             proceedings on that basis] are subject to,
31             inter alia, the ninety-day filing deadline
32             set forth at 8 C.F.R. § 1003.23(b)(1)
33             (requiring a motion to reopen to be filed
34             within ninety days of the date of entry of a
35             final administrative order of removal,
36             deportation, or exclusion . . . .).
37             [Patel's] Motion To Reopen considered on this
38             basis is therefore untimely . . . .

39   IJ Op. at 5 (citations omitted).


                                        4
1         A determination of untimeliness of this kind is within our
2    jurisdiction to review. See Mariuta, 411 F.3d at 366-67. To the
3    extent we are required to consider the IJ's basis for denying the
4    motion to reopen in addition to the BIA's basis, we conclude that
5    the IJ's analysis of untimeliness was correct. The IJ retained
6    the power to reopen the proceedings nonetheless sua sponte, but
7    its decision whether to do so was "committed to its unfettered
8    discretion," and is "not justiciable." Prado v. Reno, 198 F.3d
9    286, 292 (2d Cir. 1999) (internal quotation marks omitted).

10        We have considered all of Patel's other arguments and find
11   them to be without merit. For the foregoing reasons, the
12   petition for review is hereby DENIED.

13                       FOR THE COURT:
14                       Catherine O'Hagan Wolfe, Clerk of the Court



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