     18-483
     Czyz v. Barr
                                                                                  BIA
                                                                          A073 592 994

                         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
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ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
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 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 12th day of August, two thousand twenty.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            ROSEMARY S. POOLER,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   SEBASTIAN CZYZ,
14            Petitioner,
15
16                  v.                                           18-483
17                                                               NAC
18
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                  Dana R. Bucin, Barry J. Waters,
25                                    Murtha Cullina LLP, Hartford, CT.
26
27   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
28                                    Attorney General; Rebekah Nahas,
29                                    Katherine A. Smith, Trial
30                                    Attorneys, Office of Immigration
31                                    Litigation, United States
32                                    Department of Justice, Washington,
33                                    DC.
 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 motion to hold the

 4   petition for review in abeyance and the petition for review

 5   are DENIED.

 6       Petitioner   Sebastian   Czyz,   a    native   and   citizen   of

 7   Poland, seeks review of a February 12, 2018, decision of the

 8   BIA, denying his motion to reopen.       In re Sebastian Czyz, No.

9    A073 592 994 (B.I.A. Feb. 12, 2018).       We assume the parties’

10   familiarity with the underlying facts and procedural history.

11       Motion to Reopen

12       The applicable standards of review are well established.

13   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.

14   2008).    It is undisputed that Czyz’s 2017 motion to reopen

15   was untimely because it was filed more than 18 years after

16   his 1999 removal order.      See 8 U.S.C. § 1229a(c)(7)(C)(i)

17   (“[T]he motion to reopen shall be filed within 90 days of the

18   date of entry of a final administrative order of removal.”);

19   8 C.F.R. § 1003.2(c)(2) (same).

20       Ineffective assistance of counsel can be a basis for

21   equitable relief from the time limitation on motions to

22   reopen.   See Iavorski v. U.S. INS, 232 F.3d 124, 127 (2d Cir.
                                    2
 1   2000).   The BIA found Czyz’s ineffective assistance claim

 2   foreclosed because he failed to comply with Matter of Lozada,

 3   19 I. & N. Dec. 637, 639 (BIA 1988), which requires a movant

 4   to file an affidavit detailing his agreement with former

 5   counsel and submit proof that he notified former counsel and

 6   the proper disciplinary authority of his allegations.     Czyz

 7   does not challenge that finding in his brief and thus we need

 8   not consider it.     See Yueqing Zhang v. Gonzales, 426 F.3d

 9   540, 541 n.1, 545 n.7 (2d Cir. 2005).

10       Regardless, the BIA did not err.      In his motion, Czyz

11   stated that he would file the affidavit required by Lozada,

12   but he did not do so.     See Lozada, 19 I. & N. Dec. at 639.

13   That was particularly problematic because his motion did not

14   specify how his former attorneys were ineffective.

15       Sua Sponte Reopening Authority

16       Because Czyz did not demonstrate that the time limitation

17   applicable to his motion should be excused, “his motion to

18   reopen could only be considered upon exercise of the [BIA’s]

19   sua sponte authority.”    Mahmood v. Holder, 570 F.3d 466, 469

20   (2d Cir. 2009).    We lack jurisdiction to review the agency’s

21   “entirely   discretionary”   decision   declining   to   reopen

22   proceedings sua sponte.    Ali v. Gonzales, 448 F.3d 515, 518
                                    3
 1   (2d Cir. 2006).    However, “where the Agency may have declined

 2   to exercise its sua sponte authority because it misperceived

 3   the    legal   background   and   thought,    incorrectly,      that    a

 4   reopening would necessarily fail, remand to the Agency for

 5   reconsideration in view of the correct law is appropriate.”

 6   Mahmood, 570 F.3d at 469.

 7         Czyz has not shown that the BIA misperceived the law in

 8   declining to reopen sua sponte.           He argues that when the

 9   agency   revoked   his   lawful   permanent      resident    status    as

10   improvidently granted, it should have returned him to his

11   prior status as a nonimmigrant student.          The BIA did not err

12   in declining to reopen sua sponte to revisit the issue of

13   Czyz’s removability because he had conceded that he was

14   removable after his permanent resident status was revoked 19

15   years earlier and he was bound by that concession.              See In

16   re G-D-, 22 I. & N. Dec. 1132, 1133–34 (BIA 1999) (“[W]e

17   invoke our sua sponte authority sparingly, treating it not as

18   a general remedy for any hardships created by enforcement of

19   the time and number limits in the motions regulations, but as

20   an    extraordinary   remedy   reserved    for    truly     exceptional

21   situations.”); see also Hoodho v. Holder, 558 F.3d 184, 192

22   (2d Cir. 2009) (recognizing that noncitizens are bound by an
                                       4
 1   attorney’s      concession    of    removability).       Czyz   does   not

 2   otherwise challenge the BIA’s decision declining to reopen

 3   sua sponte.

 4       Motion to Hold Petition in Abeyance

 5       Czyz moves to hold his petition in abeyance pending

 6   decision by the BIA on his third motion to reopen.              We decline

 7   to do so because he is not likely to succeed on his motion to

 8   reopen or in a petition for review from the denial of that

9    motion.   In his motion to reopen, Czyz argues that the Supreme

10   Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105

11   (2018), renders him eligible for cancellation of removal and

12   invalidates his Notice to Appear (“NTA”) because his NTA

13   omitted the hearing date and time.

14       In Pereira, the Supreme Court held that the Immigration

15   and Nationality Act unambiguously requires an NTA to include

16   a hearing date and time to trigger the “stop-time rule,” 138

17   S. Ct. at 2113–20, which cuts off an alien’s accrual of

18   physical presence or residence for the purposes of qualifying

19   for cancellation of removal, see 8 U.S.C. § 1229b(a), (b),

20   (d)(1).   Although Czyz’s NTA did not set a hearing date and

21   time, he was served five days later with a hearing notice

22   setting   his    hearing     date   and   time,   and   he   subsequently
                                          5
 1   participated in his removal proceedings.                  Therefore, the

 2   issue here, unlike the issue in Pereira where proper notice

 3   of hearing was never served, 138 S. Ct. at 2112, is whether

 4   Czyz’s defective NTA was cured and the time stopped by the

 5   subsequent properly served hearing notice.

 6       The BIA has held that “where a notice to appear does not

 7   specify the time or place of an alien’s initial removal

 8   hearing,   the    subsequent     service    of   a   notice    of   hearing

 9   containing that information perfects the deficient notice to

10   appear, triggers the ‘stop-time’ rule, and ends the alien’s

11   period of continuous residence or physical presence in the

12   United   States.”      Matters      of   Mendoza-Hernandez      &   Capula-

13   Cortes, 27 I. & N. Dec. 520, 529 (BIA 2019).                  And although

14   we have not addressed this issue following Pereira, we held

15   the same pre-Pereira, concluding “that the stop-time rule is

16   triggered upon service of a Notice to Appear that (alone or

17   in combination with a subsequent notice) provides the notice

18   required.”    Guamanrrigra v. Holder, 670 F.3d 404, 410 (2d

19   Cir. 2012).      Accordingly, there is likely no merit to Czyz’s

20   argument that he continued to accrue sufficient physical

21   presence   for    purposes     of   cancellation     of   removal     after

22   December 1998 when he was properly served with both an NTA
                                          6
 1   and a hearing notice.

 2       Czyz’s argument that his defective NTA was insufficient

 3   to vest the immigration court with jurisdiction over his

 4   removal proceedings is foreclosed by Banegas Gomez v. Barr,

 5   922 F.3d 101, 112 (2d Cir. 2019) (“We conclude that an NTA

 6   that omits information regarding the time and date of the

 7   initial removal hearing is nevertheless adequate to vest

 8   jurisdiction in the Immigration Court, at least so long as a

 9   notice of hearing specifying this information is later sent

10   to the alien.”).

11       For   the    foregoing   reasons,   the   motion   to   hold   the

12   petition for review in abeyance and the petition for review

13   are DENIED.     All pending motions and applications are DENIED

14   and stays VACATED.

15                                  FOR THE COURT:
16                                  Catherine O’Hagan Wolfe,
17                                  Clerk of Court




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