         09-5225-ag
         Reyes v. Holder
                                                                                       BIA
                                                                               A070 580 001
                            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 19th day of October, two thousand ten.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                JOSÉ A. CABRANES,
 9                DENNY CHIN,
10                    Circuit Judges.
11       ______________________________________
12
13       TATIANA REYES,
14                Petitioner,
15
16                                                              09-5225-ag
17                         v.                                   NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               H. Raymond Fasano, New York, New
25                                     York.
26
27
28       FOR RESPONDENT:               Tony West, Assistant Attorney
29                                     General; Linda S. Wernery, Assistant
30                                     Director; Janice K. Redfern, Senior
31                                     Litigation Counsel, Office of
32                                     Immigration Litigation, Civil
33                                     Division, United States Department
34                                     of Justice, 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 Tatiana Reyes, a native and citizen of

 6   Russia, seeks review of a November 20, 2009 order of the BIA

 7   denying her motion to reopen.       In re Tatiana Reyes, No. A070

 8   580 001 (B.I.A. Nov. 20, 2009).      We assume the parties’

 9   familiarity with the underlying facts and procedural history

10   of the case.

11       We review the BIA’s denial of Reyes’s motion to reopen

12   for abuse of discretion.   Ali v. Gonzales, 448 F.3d 515, 517

13   (2d Cir. 2006).   We review constitutional claims de novo.

14   See Guo Qi Wang v. Holder, 583 F.3d 86, 90 (2d Cir. 2009).

15       An alien may only file one motion to reopen and must do

16   so within 90 days of the final administrative decision.

17   8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).      Reyes’s

18   motion to reopen was therefore indisputably untimely and

19   number-barred as it was her second motion filed more than

20   five years after the agency’s final order of removal.

21   However, because the BIA nevertheless considered Reyes’s

22   motion to reopen on its merits, we review that decision and


                                     2
 1   conclude that the BIA did not abuse its discretion in

 2   denying the motion.

 3       In Dada v. Mukasey, 128 S. Ct. 2307, 2319 (2008), the

 4   United States Supreme Court held that an alien “must be

 5   permitted to withdraw, unilaterally, a voluntary departure

 6   request before the departure period expires.”      128 S. Ct. at

 7   2319 (emphasis added). Reyes’s voluntary departure period

 8   expired on January 4, 2004.   See 8 U.S.C. § 1101(a)(47)(B)

 9   (providing that an “`order of deportation’” becomes “final

10   upon the earlier of . . . a determination of the BIA

11   affirming such order” or “the expiration of the period in

12   which the alien is permitted to seek review of such order by

13   the [BIA]”).   However, Reyes did not file her motion to

14   reopen seeking to withdraw her request for voluntary

15   departure until April 2009, more than five years after the

16   expiration of her voluntary departure period.      Therefore,

17   the BIA did not abuse its discretion to the extent it denied

18   Reyes’s request for withdrawal as untimely.     See Dada, 128

19   S. Ct. at 2319.

20       The BIA also reasonably found that the IJ provided

21   Reyes with appropriate notification of the consequences of

22   failing to voluntarily depart.    Under 8 U.S.C.


                                   3
 1   § 1229c(d)(3), “[t]he order permitting an alien to depart

 2   voluntarily shall inform the alien of the penalties under

 3   this subsection.”     The IJ did so, including warnings in his

 4   order granting Reyes’s request for voluntary departure and

 5   also providing warnings to Reyes orally at her merits

 6   hearing.     Reyes indicated on the record that she understood

 7   the potential penalties, and Reyes cites to no authority

 8   requiring an IJ to provide a warning of those penalties

 9   before granting voluntary departure.     Thus, we find no error

10   in the BIA’s conclusion that the IJ’s contemporaneous

11   warnings were proper.     See 8 U.S.C. § 1229c(d)(3).

12       We likewise find no merit to Reyes’s argument that the

13   IJ violated her due process rights by failing to provide her

14   with warnings prior to granting her request for voluntary

15   departure.     In the immigration context, “[t]o establish a

16   violation of due process, an alien must show that she was

17   denied a full and fair opportunity to present her claims or

18   that the IJ or BIA otherwise deprived her of fundamental

19   fairness.”     Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.

20   2007) (internal quotation marks omitted).     The alien is also

21   required to “allege some cognizable prejudice fairly

22   attributable to the challenged process.”     Garcia-Villeda v.


                                     4
 1   Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)(internal quotation

 2   marks omitted).

 3         Reyes does not allege that she was deprived of an

 4   opportunity to withdraw her request for voluntary departure

 5   after learning of the consequences of failing to comply with

 6   a grant of such relief.   In fact, Reyes was informed of the

 7   penalties associated with a failure to voluntarily depart on

 8   August 28, 2002, but Reyes did not seek to withdraw her

 9   request at any time before the expiration of her voluntary

10   departure period on January 4, 2004, as she had a right to

11   do.   See Dada, 128 S. Ct. at 2319.   Reyes thus has failed to

12   demonstrate that she was deprived of a “full and fair

13   opportunity” to withdraw her request for voluntary departure

14   after being informed of the possible consequences of failing

15   to comply with the voluntary departure order.    Burger, 498

16   F.3d at 134.   Accordingly, the BIA did not abuse its

17   discretion in denying Reyes’ motion to reopen.    See Ke Zhen

18   Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.

19   2001).

20         For the foregoing reasons, the petition for review is

21   DENIED.   As we have completed our review, any pending motion

22   for a stay of removal in this petition is DISMISSED as moot.


                                   5
1   Any pending request for oral argument in this petition is

2   DENIED in accordance with Federal Rule of Appellate

3   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6
7
8
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