         11-3162-ag
         Devsani v. Holder
                                                                                        BIA
                                                                                 Montante, IJ
                                                                            A074 857 273/274
                               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 21st day of June, two thousand twelve.
 5
 6       PRESENT:
 7                           GUIDO CALABRESI,
 8                           REENA RAGGI,
 9                           DENNY CHIN,
10                                Circuit Judges.
11
12       ___________________________________
13
14       PANKAJ PRAVIN DEVSANI,
15       ASMITHA PANKAJ DEVSANI,
16                Petitioners,
17
18                            v.                                11-3162-ag
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _____________________________________
24
25       FOR PETITIONERS:                  Judy Resnick, Esq., Far Rockaway,
26                                         New York.
27
28       FOR RESPONDENT:                   Tony West, Assistant Attorney
29                                         General; Melissa Neiman-Kelting,
30                                         Senior Litigation Counsel; Kelly J.
31                                         Walls, Trial Attorney, Office of
32                                         Immigration Litigation, Civil
33                                         Division, United States Department
34                                         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 Pankaj Pravin Devsani and Asmitha Pankaj

 6   Devsani, husband and wife and natives and citizens of India,

 7   seek review of a July 6, 2011 order of the BIA affirming the

 8   July 14, 2010 decision of Immigration Judge (“IJ”) Philip J.

 9   Montante, Jr. denying their motions to rescind in absentia

10   removal orders and reopen their proceedings.   In re Pankaj

11   Pravin Devsani, Nos. A074 857 273/274 (B.I.A. July 6, 2011),

12   aff’g Nos. A074 857 273/274 (Immig. Ct. Buffalo, N.Y. July

13   14, 2010).   We assume the parties’ familiarity with the

14   underlying facts and procedural history of this case.

15       Under the circumstances of this case, we have reviewed

16   the decision of the IJ as supplemented by the BIA.    See Yan

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

18   review the agency’s denial of motions to rescind or reopen

19   for abuse of discretion.   See Alrefae v. Chertoff, 471 F.3d

20   353, 357 (2d Cir. 2006).

21       A deportation order entered in absentia may be

22   rescinded if the alien shows he did not receive notice of

23   the removal hearing.   See 8 U.S.C. § 1229a(b)(5)(C)(ii);

                                   2
 1   accord Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir. 2006).

 2   In this case, the IJ reasonably determined that the

 3   petitioners received notice of their hearing because (1)

 4   they received written Notices to Appear specifying the

 5   hearing date, which they signed to acknowledge that they

 6   received oral notice of their contents; and (2) reports

 7   written by the border patrol agents who arrested the

 8   petitioners indicated that the agents had been able to

 9   communicate with them in English and Hindi.     The petitioners

10   had no right to receive notice in Gujarati, which they

11   asserted was their “best language,” Pet’rs Br. 14, since

12   they received adequate oral and written notice.     See Lopes,

13   468 F.3d at 85 (noting that the governing statute does not

14   require that an alien receive notice in any particular

15   language).

16       Because petitioners did not deny that they received

17   notice of their hearing’s date and time, but only complain

18   of the language in which it was communicated, petitioners

19   failed to demonstrate that they did not receive notice, see

20   8 U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R.

21   § 1003.23(b)(4)(iii)(a)(1), no evidentiary hearing was

22   necessary to resolve disputed issues of fact.     Moreover, the


                                  3
 1   BIA applied the proper standard of review on appeal,

 2   reviewing the IJ’s factual findings for clear error and its

 3   legal conclusions de novo.   See 8 C.F.R. § 1003.1(d)(3)(i),

 4   (ii).   In sum, the agency did not abuse its discretion, or

 5   deprive the petitioners of due process, in denying their

 6   motions to rescind because they received notice of their

 7   removal hearing.

 8       Insofar as the petitioners sought reopening based on

 9   their desire to apply for adjustment of status, the agency

10   did not abuse its discretion in denying their motion to

11   reopen as untimely.    Generally, motions to reopen must be

12   filed within 90 days of a removal order.     See 8 U.S.C.

13   § 1229a(c)(7)(C)(i).   Petitioners’ motions were filed over

14   ten years after their in absentia removal orders, and they

15   did not present circumstances that would excuse their motion

16   from that time limit to the agency.    We do not have

17   jurisdiction to review the BIA’s discretionary decision not

18   to reopen proceedings sua sponte.     See Ali v. Gonzales, 448

19   F.3d 515, 518 (2d Cir. 2006).

20       Finally, the agency’s decision in this case did not

21   deprive the petitioners of due process.    Petitioners

22   received “a full and fair opportunity to present [their]


                                     4
 1   claims” by presenting evidence with their motions, thus

 2   eliminating their procedural due process claim.     See Burger

 3   v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007).     Nor were

 4   petitioners’ substantive due process rights violated.     The

 5   agency’s decision to deny their motion to reopen as untimely

 6   and to decline to reopen sua sponte was not “so egregious,

 7   so outrageous, that it may fairly be said to shock the

 8   contemporary conscience.”     See Bolmer v. Oliveira, 594 F.3d

 9   134, 142 (2d Cir. 2010) (quoting County of Sacramento v.

10   Lewis, 523 U.S. 833, 847 n.8 (1998)).

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

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

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

16   oral argument in this petition is DENIED in accordance with

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

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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