         11-5398
         Yu v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A076 106 062
                                                                               A076 106 063
                         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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 18th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RAYMOND J. LOHIER, JR.,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       HONG YU, TIANYI YU,
14                Petitioners,
15
16                      v.                                      11-5398
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONERS:              Thomas Edward Moseley, Newark, NJ.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Edward J. Duffy,
27                                     Senior Litigation Counsel; Alison
28                                     Marie Igoe, Senior Counsel, National
29                                     Security Unit, Office of Immigration
30                                     Litigation, United States Department
31                                     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       Petitioners Hong Yu and Tianyi Yu, father and son and

 6   natives and citizens of China, seek review of a December 1,

 7   2011, order of the BIA, affirming the July 1, 2011, decision

 8   of an Immigration Judge (“IJ”), which denied Petitioners’

 9   motion to reopen and rescind their in absentia removal

10   orders.   In re Hong Yu, Tianyi Yu, Nos. A076 106 062/063

11   (B.I.A. Dec. 1, 2011), aff’g Nos. A076 106 062/063 (Immig.

12   Ct. N.Y. City July 1, 2011).   We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and the BIA’s decisions “for the sake of

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

18   2008) (quoting Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.

19   2006))(quotation marks omitted).   We review the denial of a

20   motion to rescind an in absentia removal order under the

21   abuse of discretion standard applicable to motions to

22   reopen.   See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.

23   2006); see also Ke Zhen Zhao v. U.S. Dep’t of Justice, 265

24   F.3d 83, 93 (2d Cir. 2001).

                                    2
 1       Petitioners did not contest that they had received

 2   proper notice of their hearing and, therefore, were required

 3   to show “‘that [their] failure to appear was because of

 4   exceptional circumstances.’”   Alrefae, 471 F.3d at 358

 5   (quoting 8 U.S.C. § 1229a(b)(5)(C)).   Exceptional

 6   circumstances are circumstances “beyond the control of the

 7   alien,” such as the “serious illness of the alien, or

 8   serious illness or death of the spouse, child, or parent of

 9   the alien, but not [] less compelling circumstances.”

10   8 U.S.C. § 1229a(e)(1).

11        Petitioners argue that they established exceptional

12   circumstances for their failure to appear because the IJ

13   abused his discretion in denying their unopposed motion for

14   a continuance.   However, even assuming that an improper

15   denial of a continuance may constitute an exceptional

16   circumstance for an alien’s failure to appear, Petitioners’

17   argument is predicated on a misstatement of the record.

18   Indeed, the record is clear that the IJ did not deny

19   Petitioners’ motion to continue on the merits, but rather

20   refused to consider the motion because it was filed late and

21   in violation of the Immigration Court Practice Manual.

22   Petitioners do not dispute that their counsel filed the


                                    3
 1   motion to continue only four days before the December 2010

 2   master calender hearing, although the Immigration Court

 3   Practice Manual clearly provides that “filings must be

 4   submitted at least fifteen (15) days in advance of the

 5   [master calender] hearing if requesting a ruling at or prior

 6   to the hearing.” Immigration Court Practice Manual,

 7   § 3.1(b)(i)(A).   The Immigration Court Practice Manual also

 8   cautions that “[t]he untimely submission of a filing may

 9   have serious consequences” and that “[t]he Immigration Judge

10   retains the authority to determine how to treat an untimely

11   filing.”   Id. § 3.1(d)(ii).   Because Petitioners do not

12   allege any error in the IJ’s refusal to consider their

13   motion for failure to comply with the filing requirements of

14   the Immigration Court Practice Manual, they have waived

15   review of this determination, which forecloses their

16   argument for exceptional circumstances based on the IJ’s

17   purported merits-based denial of their motion.    See Yueqing

18   Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.

19   2005) (providing that issues not argued in briefs are deemed

20   waived).

21       Lastly, we reject Petitioners’ argument that their

22   presence in Canada and inability to return to the United

23   States constituted an exceptional circumstance for their

                                    4
 1   failure to appear.   See 8 U.S.C. § 1229a(e)(1).      Indeed,

 2   Petitioners do not dispute that they were sent hearing

 3   notices for the December 2010 master calender hearing in

 4   September 2010, but took no action to contact the

 5   Immigration Court to request a telephonic conference or a

 6   waiver of appearance.   Nor do Petitioners argue that they

 7   took any action to attempt to legally return to the United

 8   States for their hearing.     Accordingly, the agency properly

 9   determined that Petitioners’ presence in Canada and

10   inability to return to the United States did not constitute

11   an exceptional circumstance for their failure to appear that

12   was “beyond [their] control.”       8 U.S.C. § 1229a(e)(1)

13   (emphasis added).

14       For the foregoing reasons, the petition for review is

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

16   removal that the Court previously granted in this petition

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

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

19   oral argument in this petition is DENIED in accordance with

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

21   Circuit Local Rule 34.1(b).

22                                 FOR THE COURT:
23                                 Catherine O’Hagan Wolfe, Clerk




                                     5
