     12-3138
     Socop-Castillo v. Barr
                                                                                    BIA
                                                                             Verrillo, IJ
                                                                           A073 641 589

                              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 12th day of July, two thousand nineteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            GERARD E. LYNCH,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   EDGAR D. SOCOP-CASTILLO,
14            Petitioner,
15
16                      v.                                       12-3138
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Glenn L. Formica, Formica
24                                       Williams, P.C., New Haven, CT.
25
26   FOR RESPONDENT:                     Joseph H. Hunt, Assistant
27                                       Attorney General; M. Jocelyn Lopez
28                                       Wright, Senior Litigation Counsel;
29                                       Christopher Buchanan, Trial
30                                       Attorney, Office of Immigration
1                                   Litigation, United States
2                                   Department of Justice, Washington,
3                                   DC.
4
5          UPON DUE CONSIDERATION of this petition for review of a

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

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

8    is DENIED.

9          Petitioner Edgar D. Socop-Castillo, a native and citizen

10   of Guatemala, seeks review of an August 3, 2012, decision of

11   the   BIA   (1) affirming   a    May   7,   2012,    decision   of   an

12   Immigration Judge (“IJ”) denying Socop-Castillo’s motion to

13   rescind his deportation order entered in absentia and reopen

14   his   removal   proceedings,    and    (2) denying    his   motion   to

15   remand.     In re Edgar D. Socop-Castillo, No. A073 641 589

16   (B.I.A. Aug. 3, 2012), aff’g No. A073 641 589 (Immig. Ct.

17   Hartford May 7, 2012).      We assume the parties’ familiarity

18   with the underlying facts and procedural history in this case.

19         We have reviewed the decision of the IJ as supplemented

20   by the BIA.     See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

21   Cir. 2005).      Motions to reopen deportation proceedings in

22   which an alien has been ordered deported in absentia are

23   governed by different rules depending on whether the movant


                                       2
1    seeks to rescind the in absentia deportation order or to

2    present new evidence of eligibility for relief.          See Song Jin

3    Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-, 22

4    I. & N. Dec. 349, 353-55 (BIA 1998).        Accordingly, when, as

5    here, an alien seeks both rescission of an in absentia

6    deportation   order,   as   well   as   reopening   of   deportation

7    proceedings based on new evidence, the motion is treated as

8    comprising distinct motions to rescind and to reopen.            See

9    Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); see

10   also Maghradze v. Gonzales, 462 F.3d 150, 152 n.1 (2d Cir.

11   2006).   We review the denial of motions to rescind, reopen,

12   and remand for abuse of discretion.       See Maghradze, 462

13   F.3d at 152; Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d

14   Cir. 2008); Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d

15   149, 157 (2d Cir. 2005).     We find no abuse of discretion in

16   the agency’s decisions.

17       “An order entered in absentia in deportation proceedings

18   may be rescinded only upon a motion to reopen filed . . .

19   [w]ithin 180 days after the date of the order of deportation

20   if the alien demonstrates that the failure to appear was

21   because of exceptional circumstances beyond the control of


                                        3
1    the alien . . . or . . . [a]t any time if the alien

2    demonstrates   that    he    or     she    did    not    receive     notice.”

3    8 C.F.R. § 1003.23(b)(4)(iii)(A).                At the time of Socop-

4    Castillo’s deportation proceedings, “[p]roper notice . . .

5    include[d] ‘written notice . . . given in person to the alien

6    (or, if personal service is not practicable, written notice

7    . . . given by certified mail to the alien or to the alien’s

8    counsel of record, if any).’              [8 U.S.C.] § 1252b(a)(2)(A)

9    (repealed, effective 1997).”          Song Jin Wu, 436 F.3d at 162.

10   Proper service on the attorney of record creates a presumption

11   of proper notice on the noncitizen.              See id.

12        The   record   establishes          that    the    immigration      court

13   properly   served   notice     of    Socop-Castillo’s          October   1995

14   hearings on his counsel of record.               Socop-Castillo does not

15   dispute that fact.          Accordingly, he is presumed to have

16   received   proper   notice.          See    8 U.S.C.      § 1252b(a)(2)(A)

17   (1994); see also Song Jin Wu, 436 F.3d at 162.

18        Socop-Castillo asserts a due process violation, arguing

19   that he cannot mount a proper defense against the presumption

20   of   proper   notice   because      the     record      does   not    contain

21   transcripts of the hearings he missed.                   “To establish a


                                          4
1    violation of due process, an alien must show that []he was

2    denied a full and fair opportunity to present h[is] claims or

3    that   [he    was]    otherwise    deprived      .    .   .   of    fundamental

4    fairness.”      Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.

5    2007) (internal quotation marks omitted).                     The immigration

6    court and BIA make recordings of hearings available for review

7    with prior arrangement.            Immigration Court Practice Manual

8    (“Court      Manual”)   §§ 4.10(a),       5.6;       Board    of    Immigration

9    Appeals Practice Manual (“BIA Manual”) § 5.5.                      A hearing is

10   automatically        transcribed    only   if        an   IJ’s     decision   is

11   appealed to the BIA.        Id. § 4.10(b).           “If a party feels that

12   a transcript is necessary, the party should file a motion

13   articulating why a transcript is necessary.”                        BIA Manual

14   § 5.5.    Given that the agency’s regulations permitted Socop-

15   Castillo to either listen to the hearings in question or move

16   to have the hearings transcribed and given that he does not

17   assert that he or his counsel tried to do either, Socop-

18   Castillo has failed to demonstrate that he was deprived a

19   full and fair opportunity to present his claim.                     See Burger,

20   498 F.3d at 134.

21


                                           5
1           Since Socop-Castillo received notice, he was required to

2    file his motion to rescind within 180 days of his in absentia

3    deportation order and show that his failure to appear resulted

4    from exceptional circumstances.     See Song Jin Wu, 436 F.3d

5    at 162.    Socop-Castillo filed his motion to rescind more than

6    sixteen years after he was ordered deported in absentia.

7    Accordingly, as the BIA found, the motion was time barred

8    regardless of any exceptional circumstances.      See 8 C.F.R.

9    § 1003.23(b)(4)(iii)(A); see also Song Jin Wu, 436 F.3d at

10   162.

11          Socop-Castillo abandons any challenge to the agency’s

12   dispositive determination that his motion to reopen to apply

13   for relief from deportation under the Nicaraguan and Central

14   American Relief Act (“NACARA”) was untimely and thus we do

15   not consider it.     See Yueqing Zhang v. Gonzales, 426 F.3d

16   540, 541 n.1, 545 n.7 (2d Cir. 2005).       To the extent that

17   Socop-Castillo argues that the deadline was equitably tolled,

18   we find no error in the BIA’s conclusion that he failed to

19   act diligently to pursue the application, given the nearly

20   13-year delay between the 1998 deadline and his motion. And

21   we find no error in the BIA’s denial of Socop-Castillo’s


                                     6
1    motion to remand because his written statement was previously

2    available.   See 8 C.F.R. § 1003.2(c)(1); Li Yong Cao, 421

3    F.3d at 156 (providing that a movant seeking remand for

4    consideration   of   new   evidence   must   “present   material,

5    previously unavailable evidence.”).

6        For the foregoing reasons, the petition for review is

7    DENIED.   As we have completed our review, the pending motion

8    for a stay of removal in this petition is DISMISSED as moot.

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe
11                                 Clerk of Court




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