         10-2219-ag
         Parmar v. Holder
                                                                                        BIA
                                                                                 Montante, IJ
                                                                               A098 927 831
                             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 29th day of September, two thousand eleven.
 5
 6       PRESENT:
 7                JOSEPH M. MCLAUGHLIN,
 8                GUIDO CALABRESI,
 9                RICHARD C. WESLEY,
10                        Circuit Judges.
11       _______________________________________
12
13       VIVEK PARMAR,
14                Petitioner,
15
16                          v.                                  10-2219-ag
17                                                              NAC
18       JOHN MORTON, ACTING ASSISTANT
19       SECRETARY, UNITED STATES IMMIGRATION
20       AND CUSTOMS ENFORCEMENT, ET AL.,
21                Respondents.
22       _______________________________________
23
24       FOR PETITIONER:               Heidi J. Meyers, New York, NY.
25
26       FOR RESPONDENTS:              Tony West, Assistant Attorney
27                                     General; William C. Peachey,
28                                     Assistant Director; Eric W.
29                                     Marsteller, Trial Attorney, Office
30                                     of Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

 4   review is DENIED.

 5       Vivek Parmar, a native and citizen of India, seeks

 6   review of a May 24, 2010 order of the BIA affirming

 7   immigration judge (“IJ”) Philip J. Montante, Jr.’s January

 8   20, 2009, denial of Parmar’s motion to reopen and rescind

 9   his in absentia removal order.     In re Vivek A. Parmar, No.

10   A098 927 831 (B.I.A. May 24, 2010); aff’g No. A098 927 831

11   (Immig. Ct. Buffalo, NY, Jan. 20, 2009).     We assume the

12   parties’ familiarity with the underlying facts and

13   procedural history of this case.

14       We review the agency’s denial of a motion to reopen for

15   abuse of discretion.   Ali v. Gonzales, 448 F.3d 515, 517 (2d

16   Cir. 2006).   An in absentia order of removal may be

17   rescinded only “upon a motion to reopen filed within 180

18   days after the date of the order of removal if the alien

19   demonstrates that the failure to appear was because of

20   exceptional circumstances.”   See 8 U.S.C.

21   § 1229a(b)(5)(C)(i).

22       As an initial matter, Parmar’s contention that he did

23   in fact appear at his individual hearing is unavailing for

                                   2
 1   several reasons.   First, his January 2008 motion requesting

 2   that he “be allowed to appear telephonically for all master

 3   calendars” and “only appear in person on the individual

 4   hearing date,” did not waive his duty to appear in person

 5   for his November 13, 2008, hearing because it was an

 6   individual hearing, not a master calendar.     See Immigration

 7   Court Practice Manual § 4.8(m)(iii)(A) (providing that “[a]

 8   waiver of a representative’s appearance at a master calendar

 9   hearing does not constitute a waiver of the respondent’s

10   appearance”).   Moreover, Parmar’s October 2008 motion

11   requesting “either a written decision or for [Parmar] and

12   counsel to appear telephonically for the oral decision,”

13   referred only to the IJ’s expected decision on his motion to

14   suppress evidence and terminate his proceedings, on which

15   the IJ issued a written decision.   Notably, Parmar prepared

16   and mailed the motion one day prior to the IJ’s issuance of

17   the notice for his November 13, 2008, individual hearing,

18   and therefore the motion could not have requested permission

19   to appear telephonically at a hearing that had not yet been

20   scheduled.   Id. at § 4.8(n)(v) (permission to appear

21   telephonically “does not constitute permission . . . to

22   appear by telephone at any future hearing”).    In any event,


                                   3
 1   the IJ denied the motion.    That the denial order was not

 2   mailed until November 13, 2008, the date of Parmar’s

 3   hearing, does not excuse his failure to appear in person.

 4   Id. at § 4.8(n)(iii)(B) (the “mere filing” of a motion to

 5   appear by telephone does not excuse appearance, and

 6   “respondent must appear in person unless the motion has been

 7   granted”).

 8       Parmar also asserts that, even if the IJ did not grant

 9   his motion to appear telephonically, two paralegals from his

10   attorney’s office called the immigration court and spoke to

11   anonymous individuals who informed them that both he and his

12   attorney could appear telephonically.    However, as the IJ

13   noted in his decision, the court clerk with whom Parmar

14   allegedly spoke stated that “she never spoke with anybody

15   from counsel’s office relative to a telephonic hearing,” and

16   that she “also asked the entire court staff and they

17   responded that they had never advised counsel’s office that

18   the Immigration Judge granted a telephonic [hearing].”

19   Therefore, the IJ, in considering Parmar’s motion to reopen,

20   was confronted with two contradictory stories and chose to

21   credit one over the other.    The record does not compel a

22   different result.   See 8 U.S.C. § 1252(b)(4)(B) (agency’s

23   findings of fact are “conclusive unless any reasonable

                                    4
 1   adjudicator would be compelled to conclude to the

 2   contrary”); see also Shao v. Mukasey, 546 F.3d 138, 171 (2d

 3   Cir. 2008) (“We do not ourselves attempt to resolve

 4   conflicts in record evidence, a task largely within the

 5   discretion of the agency.”).

 6       Parmar also failed to demonstrate exceptional

 7   circumstances excusing his failure to appear.        See 8 U.S.C.

 8   § 1229a(b)(5)(C)(i).   In this context, “exceptional

 9   circumstances” are those “beyond the control of the alien.”

10   8 U.S.C. 1229a (e) (1).    These include “battery or extreme

11   cruelty to the alien or any child or parent of the alien,

12   serious illness of the alien, or serious illness or death of

13   the spouse, child, or parent of the alien, but not . . .

14   less compelling circumstances.”     Id.     Parmar’s situation

15   does not constitute “exceptional circumstances” under the

16   statutory definition of that term.        Parmar’s reliance on

17   Aris v. Mukasey, 517 F.3d 595 (2d Cir. 2008), is also

18   unavailing, because Aris concerned a motion to reopen filed

19   with the BIA alleging ineffective assistance of counsel.

20   Parmar has not raised an ineffective assistance claim either

21   here or before the agency.     See Karaj v. Gonzales, 462 F.3d

22   113, 119 (2d Cir. 2006).     Thus, although ineffective

23   assistance of counsel “can constitute exceptional
                                     5
 1   circumstances excusing the alien’s failure to appear at a

 2   deportation hearing,” Aris, 517 F.3d at 599, there is no

 3   ineffective assistance claim before us.

 4       For the foregoing reasons, the petition for review is

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

 6   removal that the Court previously granted in this petition

 7   is VACATED, and any pending motion for a stay of removal in

 8   this petition is DISMISSED as moot. Any pending request for

 9   oral argument in this petition is DENIED in accordance with

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

11   Circuit Local Rule 34.1(b).

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