         09-4959-ag
         Patel v. Holder
                                                                                       BIA
                                                                                   Rocco, IJ
                                                                               A074 855 443

                            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 20 th day of January, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       SANJAY MANUBHI PATEL,
14                Petitioner,
15
16                         v.                                   09-4959-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               James J. Orlow, Philadelphia,
24                                     Pennsylvania.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Thomas B. Fatouros, Senior
28                                     Litigation Counsel; Karen Y.
29                                     Stewart, Attorney, Office of
30                                     Immigration Litigation, Civil
1                                      Division, United States Department
2                                      of Justice, Washington, D.C.
3
4         UPON DUE CONSIDERATION of this petition for review of a

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

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

7    review is DENIED.

8         Sanjay Manubhi Patel, a native and citizen of India,

9    seeks     review     of    a    November       10,   2009,   order   of    the   BIA

10   affirming the September 29, 2009, order of Immigration Judge

11   (“IJ”) Michael Rocco denying                   his   motion to reopen. In re

12   Sanjay Manubhi Patel, No. A074 855 443 (B.I.A. Nov. 10, 2009),

13   aff’g No. 074 855 443 (Immig. Ct. Buffalo Sept. 29, 2009).                        We

14   assume the parties’ familiarity with the underlying facts and

15   procedural history of this case.

16        Motions        to    reopen    in    absentia      exclusion    orders      are

17   governed by different rules depending on whether the movant

18   seeks to rescind the order or present new evidence.                        See Song

19   Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-,

20   22   I.    &   N.        Dec.   349,     353-55      (BIA    1998)   (en    banc).

21   Accordingly, when, as here, an alien files a motion that seeks

22   both rescission of an in absentia exclusion order, as well as

23   reopening of proceedings to apply for new relief, we treat the

24   BIA’s decision as having denied distinct motions to rescind

25   and to reopen.            Alrefae v. Chertoff, 471 F.3d 353, 357 (2d

                                                2
1    Cir. 2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152

2    n.1 (2d Cir. 2006).     We review the agency’s denials of motions

3    to rescind and reopen for abuse of discretion.        See Alrefae,

4    471 F.3d at 357.      Under the circumstances of this case, we

5    review the decision of the IJ as supplemented by the BIA.        See

6    Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

7        Patel’s arguments that he did not receive proper notice

8    of his hearing and that his due process right was violated

9    because he was not provided with a translation of the Notice

10   to Appear are unavailing.     A Notice to Appear is not defective

11   merely because it fails to advise an alien in his native

12   language that an in absentia order could be entered against

13   him if he fails to appear.        See Lopes v. Gonzales, 468 F.3d

14   81, 84-85 (2d Cir. 2006) (rejecting a Portugese alien’s claim

15   that “the notices to appear were defective because they did

16   not advise him in his native Portuguese that an in absentia

17   order could be entered against him if he failed to appear”

18   because the relevant statute does not require that notice be

19   provided in any particular language); 8 U.S.C. § 1229(a); 8

20   C.F.R. § 1003.26.     Accordingly, the agency did not abuse its

21   discretion in denying Patel’s motion to rescind.

22       To   the   extent     Patel   was   requesting   reopening    of

23   proceedings to apply for relief from removal based on new

                                       3
1    evidence, his motion was untimely and he did not establish

2    that it met any exceptions to the filing deadlines. 8 C.F.R.

3    § 1003.23(b); see also Matter of Yauri, 25 I. & N. Dec. 103,

4    105 (BIA 2009) (emphasizing “that untimely motions to reopen

5    to pursue an application for adjustment of status . . . do not

6    fall within any of the statutory or regulatory exceptions to

7    the time limits for motions to reopen before the Board”).

8    Thus, Patel was necessarily invoking the BIA’s authority to

9    reopen his proceedings sua sponte.   See Mahmood v. Holder, 570

10   F.3d 466, 469 (2d Cir. 2009) (“Because Mahmood’s untimely

11   motion to reopen was not excused by any regulatory exception,

12   her motion to reopen could only be considered upon exercise of

13   the Agency’s sua sponte authority”); 8 C.F.R. § 1003.2(a).

14   The BIA’s determination as to whether it will exercise its sua

15   sponte authority is entirely discretionary and thus beyond the

16   scope of our jurisdiction.   See Ali v. Gonzales, 448 F.3d 515,

17   517 (2d Cir. 2006).   Because Patel’s motion was untimely and

18   he did not establish that his motion met any exceptions to the

19   filing deadlines, there is no error in the BIA’s finding and

20   we lack jurisdiction to review the BIA’s decision to decline

21   to sua sponte reopen his proceedings.    See Mahmood, 570 F.3d

22   at 469; see also Ali, 448 F.3d at 517; 8 C.F.R.

23   § 1003.23(b).

                                    4
1        Finally, Patel’s argument that the agency violated the

2    notice    requirements    of    the   APA   is    frivolous    because      the

3    Supreme    Court   has   held    that     the    APA   does   not   apply    to

4    immigration proceedings.        See Ardestanti v. INS, 502 U.S. 129,

5    133-34 (1991) (“the INA ‘expressly supersedes’ the hearing

6    provisions of the APA”) (citing Marcello v. Bonds, 349 U.S.

7    302, 310 (1955)).

8               For the foregoing reasons, the petition for review

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

10   removal that the Court previously granted in this petition is

11   VACATED, and any pending motion for a stay of removal in this

12   petition is DISMISSED as moot.            Any pending request for oral

13   argument in this petition is DENIED in accordance with Federal

14   Rule of Appellate Procedure 34(a)(2), and Second Circuit Local

15   Rule 34.1(b).

16                                     FOR THE COURT:
17                                     Catherine O’Hagan Wolfe, Clerk
18
19
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