         08-6173-ag
         Faiz v. Holder
                                                                                        BIA
                                                                                 Montante, IJ
                                                                               A 095 967 378
                                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 8 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                            DENNIS JACOBS,
 8                                  Chief Judge,
 9                            PIERRE N. LEVAL,
10                            PETER W. HALL,
11                                  Circuit Judges.
12
13       _______________________________________
14
15       SHAHEEN FAIZ,
16                Petitioner,
17
18                             v.                               08-6173-ag
19                                                              NAC
20       ERIC H. HOLDER, JR., * UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _______________________________________
24
25
26


                          *
                  Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr., is
             automatically substituted for former Attorney General
             Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONER:          Pro se.
 2
 3   FOR RESPONDENT:          Tony West, Assistant Attorney
 4                            General; Carol Federighi, Senior
 5                            Litigation Counsel; Brianne Whelan
 6                            Cohen, Trial Attorney, Office of
 7                            Immigration Litigation, United
 8                            States Department of Justice,
 9                            Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

12   Board of Immigration Appeals (“BIA”) decision, it is hereby

13   ORDERED, ADJUDGED, AND DECREED, that the petition for review

14   is DENIED.

15       Petitioner Shaheen Faiz, a native and citizen of

16   Pakistan, seeks review of the November 19, 2008 order of the

17   BIA affirming the December 6, 2006 order of Immigration

18   Judge (“IJ”) Philip Montante denying her motion to reopen.

19   In re Shaheen Faiz, No. A 095 967 378 (B.I.A. Nov. 19, 2008)

20   aff’g No. A 095 967 378 (Immig Ct. Buffalo, N.Y. Dec. 6,

21   2006).   We assume the parties’ familiarity with the

22   underlying facts and procedural history of the case.

23       We review the denial of a motion to rescind an in

24   absentia removal order under the same standard applicable to

25   motions to reopen.    See Alrefae v. Chertoff, 471 F.3d 353,

26   357 (2d Cir. 2006).    We review the BIA’s denial of a motion

27   to reopen for abuse of discretion, mindful of the Supreme


                                    2
1    Court’s admonition that such motions are “disfavored.”        Ali

2    v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.

3    Doherty, 502 U.S. 314, 322-23 (1992)).

4        An immigration judge may proceed with removal

5    proceedings in absentia if an alien fails to appear for a

6    scheduled hearing after proper written notice of the hearing

7    is sent to the alien at her most recent address.     See

8    8 U.S.C. § 1229a(b)(5)(A).    However, written notice is not

9    required if the alien fails to provide her address.        Id. at

10   § 1229a(b)(5)(B).    In such a case, the alien will be ordered

11   removed if the government establishes the alien’s

12   removability by “clear, unequivocal, and convincing

13   evidence.”   Id. at § 1229a(b)(5)(A).    Faiz, through her

14   counsel, acknowledged that she personally received the

15   Notice to Appear on January 26, 2003, which informed her

16   that she would be notified of her hearing date before an IJ,

17   the consequences of her failure to attend the hearing, and

18   her responsibility to inform the immigration court of any

19   change of address.    Faiz does not dispute that she failed to

20   inform the immigration court of her change in address.

21   Therefore, no written notice was required, and the IJ did

22   not err in ordering her removed in absentia.     Id. at


                                    3
1    § 1229a(b)(5)(A); (B); see also Maghradze v. Gonzales, 462

2    F.3d 150, 153-54 (2d Cir. 2006) (upholding BIA’s

3    determination that aliens who fail to inform the immigration

4    court of a change in address are deemed to have

5    constructively received notice provided in accordance with

6    the requirements of 8 U.S.C. § 1229a).

7        Faiz argues that her failure to appear was based on her

8    inability to understand the Notice to Appear due to her

9    minimal education and lack of knowledge of the English

10   language.     She contends that the Notice does not indicate

11   that it was translated to her by a Punjabi interpreter.        To

12   the contrary, the Notice clearly states that Faiz was

13   provided with oral notice in her native Punjabi language of

14   the consequences of her failure to attend.     Furthermore,

15   there is no requirement that Faiz be provided with a written

16   translation of the Notice to Appear.     See Lopes v. Gonzales,

17   468 F.3d 81, 84-85 (2d Cir. 2006) (“[W]e reject Silva’s

18   claim that the notices to appear were defective because they

19   did not advise him in his native Portuguese that an in

20   absentia order could be entered against him if he failed to

21   appear.     The relevant statute does not require that notice

22   be provided in any particular language”).


                                     4
1        Finally, Faiz cites no legal authority for her

2    contention that her motion should have been granted because

3    “[t]he family was moving to Canada to apply for political

4    asylum and had, at the time, no intent of returning to the

5    United States.”   In fact, the BIA has held to the contrary.

6    See Matter of Brown, 18 I. & N. Dec. 324 (1982) (“As long as

7    the allegations and charges in the [NTA] continue to be

8    applicable, the alien remains subject to deportation.     He

9    cannot compel the termination of deportation proceedings

10   which have been commenced against him merely by effecting a

11   departure and reentry”).    The Seventh Circuit has reached a

12   similar conclusion.   See Ahmed v. Gonzales, 432 F.3d 709,

13   711 (7th Cir. 2005) (finding that “because petitioner was

14   removable, had sufficient notice, and failed to appear, the

15   regulations required the immigration judge to enter an order

16   of removal,” even though petitioner was not present in the

17   United States at the time).    Therefore, the agency did not

18   abuse its discretion in denying Faiz’s motion to reopen.

19   Kaur, 413 F.3d at 233-34.

20       For the foregoing reasons, the petition for review is

21   DENIED.   As we have completed our review, any stay of

22   removal that the Court previously granted in this petition

23   is VACATED, and any pending motion for a stay of removal in
                                    5
1   this petition is DISMISSED as moot. Any pending request for

2   oral argument in this petition is DENIED in accordance with

3   Federal Rule of Appellate Procedure 34(a)(2), and Second

4   Circuit Local Rule 34(b).

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7
8
9




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