     18-3705
     De Souza-De Queiroz v. Barr
                                                                             BIA
                                                                        Farber, IJ
                                                                     A078 965 604
                            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 TO 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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 23rd day of April, two thousand twenty.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            DENNY CHIN,
10            RAYMOND J. LOHIER, JR.,
11                 Circuit Judges.
12   _____________________________________
13
14   ADEMIR DE SOUZA-DE QUEIROZ,
15            Petitioner,
16
17                     v.                                  18-3705
18                                                         NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                   Gerald R. Nowotny, Esq., Latin
25                                     American Law Center, Canton, CT.
26
27   FOR RESPONDENT:                   Joseph H. Hunt, Assistant Attorney
28                                     General; Shelley R. Goad,
 1                                     Assistant Director; Julia J.
 2                                     Tyler, Trial Attorney, Office of
 3                                     Immigration Litigation, United
 4                                     States Department of Justice,
 5                                     Washington, DC.

 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

9    is DENIED.

10       Petitioner Ademir De Souza-De Queiroz (“De Souza”), a

11   native and citizen of Brazil, seeks review of a December 7,

12   2018, decision of the BIA both denying his second motion to

13   reopen   and   affirming      a   March   7,   2018,   decision   of    an

14   Immigration Judge (“IJ”) denying his first motion to reopen.

15   In re Ademir De Souza-De Queiroz, No. A 078 965 604 (B.I.A.

16   Dec. 7, 2018), aff’g No. A 078 965 604          (Immig. Ct. N.Y. City

17   Mar. 7, 2018).      We assume the parties’ familiarity with the

18   underlying facts and procedural history in this case.

19       When, as here, an alien files a motion that seeks both

20   rescission     of   an   in   absentia    removal   order   as   well   as

21   reopening of removal proceedings based on new claims for

22   relief from removal, we treat the motion as “comprising two

23   distinct motions” to rescind and to reopen.                 Alrefae v.

24   Chertoff, 471 F.3d 353, 357 (2d Cir. 2006).              We review the
                                  2
 1   denial of a motion to rescind an in absentia removal order

 2   under the same abuse of discretion standard applicable to a

 3   motion to reopen.        Id.      De Souza was ordered removed in

 4   absentia in 2003 and sought to rescind that order and reopen

 5   proceedings in 2018.       We find no abuse of discretion in the

 6   agency’s decisions denying his motions.

 7         A motion to rescind must be filed within 180 days of the

8    removal order unless “the alien demonstrates that [he] did

 9   not    receive   notice”       of       his      hearing.        8   U.S.C.

10   § 1229a(b)(5)(C).       De Souza did not satisfy the requirements

11   for this exception to the 180-day deadline.                  Although he

12   alleged a deficiency in his notice to appear, he appeared at

13   an initial hearing and did not allege non-receipt of the

14   relevant hearing notice.            Accordingly, to the extent he

15   sought to rescind the order, his motion was untimely.                   See

16   id.

17         To the extent he sought reopening to apply for asylum or

18   cancellation of removal, his motion was also untimely.                   An

19   alien seeking to reopen proceedings may file a motion to

20   reopen no later than 90 days after the final administrative

21   decision.     See   8    U.S.C.     §       1229a(c)(7)(C)(i);   8   C.F.R.


                                             3
 1   §§ 1003.2(c)(3), 1003.23(b)(1).       There is no dispute that De

 2   Souza’s motion was untimely because it was filed 15 years

 3   after his final removal order.        While there is an exception

 4   to the time limitation for asylum, it does not apply here.

 5   “There is no time limit on the filing of a motion to reopen

 6   if the basis of the motion is to apply for [asylum] and is

 7   based on changed country conditions arising in the country of

 8   nationality or the country to which removal has been ordered,

 9   if such evidence is material and was not available and would

10   not   have   been   discovered   or   presented    at   the   previous

11   proceeding.”    8 U.S.C. § 1229a(c)(7)(C)(ii).            The BIA did

12   not abuse its discretion in declining to reopen to the extent

13   that De Souza sought to apply for asylum based on changed

14   country conditions because he did not file the required

15   application for relief and evidence demonstrating changed

16   country conditions.      Id.; 8 C.F.R. § 1003.2(c)(1).           While

17   counsel   discussed    country   conditions   in    the   motion   and

18   supporting briefs, counsel’s statements are not evidence, see

19   Pretzantzin v. Holder, 736 F.3d 641, 651 (2d Cir. 2013), and

20   he did not identify any change in conditions in Brazil.             De

21   Souza’s allegation of changed personal circumstances does not


                                       4
 1   satisfy the exception.          See Wei Guang Wang v. BIA, 437 F.3d

 2   270,    273   (2d   Cir.   2006)      (holding   that   changed   personal

 3   circumstances       do   not   fall    within    the   changed   conditions

 4   exception to reopening).

 5          Although De Souza also sought reopening to apply for

 6   cancellation of removal under 8 U.S.C. § 1229b(b), there are

 7   no exceptions to the time limitation for cancellation.                 See

8    8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. §§ 1003.2(c)(3)(i)–

9    (iv), 1003.23(b)(4)(i)–(iv).

10          De Souza’s remaining arguments fail as well.               De Souza

11   contends that his notice to appear (“NTA”) was ineffective to

12   vest the IJ with jurisdiction because it omitted the time and

13   date of his initial hearing.            This argument is foreclosed by

14   Banegas Gomez v. Barr, because he was subsequently personally

15   served with a hearing notice and appeared at his initial

16   hearings.     922 F.3d 101, 112 (2d Cir. 2019) (holding that “an

17   NTA that omits information regarding the time and date of the

18   initial removal hearing is nevertheless adequate to vest

19   jurisdiction in the Immigration Court, at least so long as a

20   notice of hearing specifying this information is later sent

21   to the alien”).          We lack jurisdiction to review the BIA’s


                                            5
1   “entirely discretionary” determination not to exercise its

2   authority to reopen proceedings sua sponte.   Ali v. Gonzales,

3   448 F.3d 515, 518 (2d Cir. 2006).

4       For the foregoing reasons, the petition for review is

5   DENIED.   All pending motions and applications are DENIED and

6   stays VACATED.

7                               FOR THE COURT:
8                               Catherine O’Hagan Wolfe,
9                               Clerk of Court




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