         09-4521-ag
         Chavez-Michaca v. Holder

                                                                                       BIA
                                                                                 Brennan, IJ
                                                                               A074 976 708
                                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 18th day of April, two thousand eleven.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                ROBERT D. SACK,
 9                REENA RAGGI,
10                   Circuit Judges.
11       _______________________________________
12       SUSY CHAVEZ-MICHACA,
13                Petitioner,
14
15                          v.                                    09-4521-ag
16                                                                NAC
17       ERIC H. HOLDER, JR., UNITED STATES
18       ATTORNEY GENERAL; UNITED STATES
19       DEPARTMENT OF JUSTICE,
20                Respondents.
21       _________________________________________
22
23       FOR PETITIONER:                 Bruno Joseph Bembi, Hempstead, New
24                                       York.
25
26       FOR RESPONDENTS:                Tony West, Assistant Attorney
27                                       General; Jennifer P. Levings, Senior
28                                       Litigation Counsel; Katharine E.
29                                       Clark, Trial Attorney, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       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 in part and DISMISSED in part.
 5       Petitioner Susy Chavez-Michaca, a native and citizen of

 6   Mexico, seeks review of an October 14, 2009 decision of the

 7   BIA, affirming the February 8, 2008 order of Immigration

 8   Judge (“IJ”) Noel Ann Brennan, granting the government’s

 9   motion to reconsider her February 4, 2008 order granting

10   Chavez-Michaca’s motion to rescind an in absentia order of

11   deportation.     In re Susy Chavez-Michaca, No. A074 976 708

12   (B.I.A. Oct. 14, 2009), aff’g No. A074 976 708 (Immig. Ct.

13   N.Y. City Feb. 8, 2008).    We assume the parties’ familiarity

14   with the underlying facts and procedural history of the

15   case.

16       Under the circumstances of this case, we review both

17   the IJ’s and the BIA’s opinions “for the sake of

18   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

19   2008) (internal quotation marks omitted).    This Court

20   reviews the agency’s grant of a motion to reconsider for

21   abuse of discretion.     Jin Ming Liu v. Gonzales, 439 F.3d

22   109, 111 (2d Cir. 2006) (per curiam); see also 8 C.F.R. §

23   1003.23(b)(1)(iv) (2011) (“The decision to grant or deny a

                                     2
 1   motion to reopen or a motion to reconsider is within the

 2   discretion of the Immigration Judge.”).     The Court reviews

 3   de novo constitutional challenges and questions of law.        Ali

 4   v. Mukasey, 525 F.3d 171, 173 (2d Cir. 2008).

 5       The agency did not abuse its discretion in granting the

 6   government’s motion to reconsider.     A motion to reconsider

 7   filed with the IJ must specify errors of fact or law in the

 8   IJ’s prior decision.     See 8 C.F.R. § 1003.23(b)(2) (2011);

 9   see also Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83,

10   90 (2d Cir. 2001).     In its motion, the government argued

11   that the IJ’s prior order granting Chavez-Michaca’s motion

12   to rescind her in absentia deportation order was based on

13   the erroneous finding that Chavez-Michaca had not received

14   notice of her hearing.     As the government established,

15   Chavez-Michaca received personal service of an Order to Show

16   Cause and Notice of Hearing.     See Fuentes-Argueta v. INS,

17   101 F.3d 867, 870–71 (2d Cir. 1996) (noting the requirement

18   of former Immigration and Nationality Act § 242B that an

19   alien be notified of the time and place of a deportation

20   hearing either in person or by certified mail); see also

21   Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009)

22   (recognizing that personal service of a Notice of Hearing


                                     3
 1   provided proper notification of a hearing).   Thus, we find

 2   no abuse of discretion in the IJ’s determination that her

 3   prior order granting Chavez-Michaca’s motion to rescind was

 4   based on a factual error.   See 8 C.F.R. § 1003.23(b)(2)

 5   (2011); see also Ke Zhen Zhao, 265 F.3d at 90.

 6       Chavez-Michaca also argues that the IJ violated her due

 7   process rights by not providing her an opportunity to

 8   respond to the government’s motion to reconsider.   In the

 9   immigration context, “[t]o establish a violation of due

10   process, an alien must show that she was denied a full and

11   fair opportunity to present her claims or that the IJ or BIA

12   otherwise deprived her of fundamental fairness,” Burger v.

13   Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (internal

14   quotation marks omitted), and that she was prejudiced by

15   such error, see Garcia-Villeda v. Mukasey, 531 F.3d 141 (2d

16   Cir. 2008) (“Parties claiming denial of due process in

17   immigration cases must, in order to prevail, allege some

18   cognizable prejudice fairly attributable to the challenged

19   process.” (internal quotation marks omitted)); accord Lattab

20   v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004) (“It is beyond

21   peradventure that before a petitioner in an immigration case

22   may advance a procedural due process claim, he must allege

23   some cognizable prejudice fairly attributable to the

                                   4
 1   challenged process.”); cf. United States v. Sanchez, 225

 2   F.3d 172, 176 (2d Cir. 2000).       Chavez-Michaca has

 3   demonstrated neither.     The agency’s regulations do not

 4   require the IJ to provide an opportunity to respond to a

 5   motion to reopen or reconsider, stating only that the IJ

 6   “may set and extend time limits for replies to motions to

 7   reopen or reconsider.”     8 C.F.R. § 1003.23(b)(1)(iv) (2011)

 8   (emphasis added).     Moreover, although Chavez-Michaca did not

 9   have an opportunity to respond to the government’s motion to

10   reconsider the IJ’s grant of her motion to rescind, she was

11   provided a full and fair opportunity to present her

12   arguments for rescission in her motion to reopen filed

13   before the IJ and in her appeal to the BIA.       See Burger, 498

14   F.3d at 134; see also Yuen Jin v. Mukasey, 538 F.3d 143, 157

15   (2d Cir. 2008).     As for her argument that she was

16   prejudiced, Chavez-Michaca claims that she would have argued

17   in her response that the administrative record indicated

18   that the date of her missed hearing before the IJ differed

19   from the hearing date provided in her Order to Show Cause

20   and Notice of Hearing.     However, despite a transcription

21   error in the record of the hearing, the record clearly

22   demonstrates that her hearing was held on the same date as


                                     5
 1   the hearing date provided in her Order to Show Cause and

 2   Notice of Hearing.   Thus, she has not demonstrated that she

 3   was prejudiced.   See Burger, 498 F.3d at 134..

 4       We lack jurisdiction to consider Chavez-Michaca’s

 5   remaining due process claims because she failed to exhaust

 6   those claims on appeal to the BIA.   See 8 U.S.C.

 7   § 1252(d)(1) (2011); Karaj v. Gonzales, 462 F.3d 113, 119

 8   (2d Cir. 2006); see also Lin Zhong v. U.S. Dep’t of Justice,

 9   480 F.3d 104, 124 (2d Cir. 2007) (concluding that exhaustion

10   of administrative remedies is a predicate of this Court’s

11   subject matter jurisdiction, while the failure to exhaust

12   specific issues is an affirmative defense subject to

13   waiver).   The statutory exhaustion requirement is not

14   excused for these constitutional claims because, even though

15   the BIA is without jurisdiction to rule on constitutional

16   claims, see Theodoropoulos v. I.N.S., 358 F.3d 162, 172–73

17   (2d Cir. 2004) (“[T]he BIA does not have jurisdiction to

18   adjudicate constitutional issues.” (internal quotation marks

19   omitted)); United States v. Gonzalez-Roque, 301 F.3d 39, 47-

20   48 (2d Cir. 2002), the BIA was able to provide Chavez-

21   Michaca with the requested relief, i.e., rescission of the

22   IJ’s in absentia deportation order and reopening of her

23   deportation proceedings, see Theodoropoulos, 358 F.3d at

                                   6
 1   172-73.   Accordingly, we dismiss the petition for review to

 2   this extent.   See Karaj, 462 F.3d at 121.

 3       For the foregoing reasons, the petition for review is

 4   DENIED in part and DISMISSED in part.   As we have completed

 5   our review, any stay of removal that the Court previously

 6   granted in this petition is VACATED, and any pending motion

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

 8   Any pending request for oral argument in this petition is

 9   DENIED in accordance with Federal Rule of Appellate

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

11                               FOR THE COURT:
12                               Catherine O’Hagan Wolfe, Clerk
13
14




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