Rohit Patel v. Atty Gen USA

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MANDATE ISSUED, filed.

Rohit Patel v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-2969

Document: 003110287805

Page: 1

Date Filed: 09/20/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-2969 ___________ R O H I T ATMARAM PATEL, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, R e sp o n d e n t

On Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A70-583-657) I m m ig r a tio n Judge: Honorable Donald V. Ferlise ____________________________________ S u b m itte d Under Third Circuit LAR 34.1(a) A p ril 21, 2010 B e f o re : McKEE, Chief Judge, HARDIMAN and COWEN, Circuit Judges (O p in io n filed July 28, 2010) _________ O P IN IO N _________ P E R CURIAM R o h it Atmaram Patel seeks review of the Board of Immigration Appeals' ("BIA") d e n ia l of his motion to reopen proceedings. Because we conclude that the BIA did not a b u s e its discretion in denying that motion, we will deny Patel's petition for review.

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Case: 09-2969

Document: 003110287805

Page: 2

Date Filed: 09/20/2010

I. P e titio n e r Rohit Atmaram Patel, a citizen of India, entered the United States in D e c em b e r 1992. He applied for asylum, claiming that, as a Hindu, he had a fear of re lig io u s persecution by Muslims. Patel was directed to appear before an Immigration Ju d g e ("IJ") in July 1998. He failed to appear for his hearing, and the IJ ordered him re m o v e d in absentia. In August 2001, Patel, through counsel, filed a motion to reopen removal p ro c e ed in g s with the IJ, arguing that he was now married to a United States citizen, that h e had an infant United States citizen child, and that he was afraid to return to India b e c au s e of changed country conditions. He also explained that he had failed to attend the 1 9 9 8 hearing because he had recently had eye surgery and that he had tried to inform the ju d g e that he would be unable to attend.1 He added that he had only received " c o n s tru c tiv e notice" of the removal order, but not "actual" notice of the order itself. (A.R. 394, 399.) The IJ rejected each of his arguments and denied the motion in October 2001. Patel appealed to the BIA, and attached an application to adjust his status based on h is marriage to a United States citizen. The BIA dismissed his appeal in November 2002,

Patel mailed a letter one day before the scheduled hearing to the IJ regarding his eye s u rg e ry. The IJ did not receive the letter until several days after issuing the removal o rd e r. (A.R. 395-396, 426.) 2

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n o tin g that his request for an adjustment of status was untimely. See Matter of M-S-, 22 I. & N. Dec. 349 (BIA 1998). In December 2002, Patel filed a timely motion to re c o n sid e r with the BIA. He argued that the BIA erred in finding that he failed to present e v id e n c e of changed country conditions, that he would qualify for adjustment of status if th e proceedings were reopened, and that he had not received actual notice of the 1998 h e a rin g . (A.R. 264-266.) The BIA found no error in its prior decision and denied the m o tio n . P a te l filed his most recent counseled motion to reopen with the BIA in April 2009. He acknowledged his motion was untimely, and requested that the BIA use its sua sponte a u th o rity to reopen proceedings based on the demonstrated strong support of his c o m m u n ity and his marriage to a United States citizen and their two young citizen c h ild re n , one of whom suffers from a serious medical condition. On June 26, 2009, the B IA denied the motion, finding that it was untimely and that it did not fall into any of the statu tory or regulatory exceptions to the time limits for filing motions to reopen. The BIA a lso determined Patel had failed to demonstrate any exceptional circumstances that would w a rra n t the exercise of its sua sponte authority to reopen. Patel filed a timely petition for re v ie w . II. W e have jurisdiction under 8 U.S.C. § 1252(a) to review the denial of Patel's m o tio n to reopen. Our jurisdiction, however, does not extend to that aspect of the order

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in which the BIA declined to reopen sua sponte. See Cruz v. Att'y Gen., 452 F.3d 240, 2 4 9 (3d Cir. 2006); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir. 2003).2 T h u s , our jurisdiction is limited to the BIA's decision to deny Patel's motion as untimely. We review that ruling for abuse of discretion and may disturb it only if it is "`arbitrary, irra tio n a l, or contrary to law.'" Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006) (citatio n omitted). In general, motions to reopen must be filed within ninety days from the date "the f in a l administrative decision was rendered." 8 C.F.R. § 1003.2(c)(2). This time lim ita tio n does not apply if the movant seeks reopening "based on changed circumstances a risin g in the country of nationality . . . if such evidence is material and was not available a n d could not have been discovered or presented at the previous hearing." 8 C.F.R. § 1 0 0 3 . 2 ( c ) ( 3 ) ( i i) . I I I. P a tel claims that the BIA abused its discretion when it denied his motion to re o p e n . He raises three arguments: (1) that the increasing religious violence in India b e tw e e n Hindus and Muslims constitutes changed country conditions; (2) that he never r e c e iv e d notice for the 1998 hearing because of confusion caused by a change in address,

We have recognized an exception to this principle when the BIA has announced and f o llo w e d a policy that governs its otherwise unfettered discretion to reopen sua sponte. See Cruz, 452 F.3d at 249; Calle-Vujiles, 320 F.3d at 475. Patel does not suggest that th e re is any such policy applicable in this case, and we are aware of none. 4

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w h ich exempts him from the time limits for filing a motion to reopen; and (3) that his p rio r immigration counsel failed to raise the change of address confusion issue in his m o tio n to reopen with the IJ and his resulting appeal and motion to reconsider to the BIA. P a te l first argues that changed country conditions in India exempt him from the tim e limits for filing a motion to reopen. The government notes that Patel did not raise th e issue in his 2009 motion, and contends that the claim is unexhausted. See A b d u l ra h m a n v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). However, Patel did raise th e issue in his previous filings to the BIA, which denied the claim in its dismissal of P a te l's appeal from the order of removal and its denial of his motion to reconsider. See P o p a l v. Gonzales, 416 F.3d 249, 253 (3d Cir. 2005) (the purposes of exhaustion are met w h e n the issues have been fairly presented to the BIA). Though the issue is exhausted, it is not properly before us, because Patel never petitioned for review from either of the p rio r BIA decisions. Even if the issue were properly before us, we find no reason to d is tu rb the BIA's findings. Patel relies on a 2000 State Department country report, which s ta te s that Hindus comprise an eighty-two percent majority of the population and that H in d u s have also been perpetrators of religious violence against minorities, including M u s lim s . (A.R. 329-377.) Furthermore, as the BIA determined, Patel fails to show that th e Indian government would be unwilling or unable to protect him from violence by M u s lim s . P a tel next claims that confusion surrounding his correct address prevented him

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f ro m receiving the notice to appear for the 1998 removal hearing and notice of the order o f removal. He states that he moved after his eye surgery in 1998 to a new address, and th a t a friend notified the immigration court of the change. He argued to the BIA that he d id not receive notice of the removal order until 2001, and that, as a result, he should be e x e m p ted from the 180-day limit for filing a motion to reopen based upon a failure to a p p e a r. See 8 U.S.C. § 1229a(b)(5)(C). However, § 1229a(b)(5) refers to notices to a p p e ar, not to notice of a final order of removal. Patel offers nothing to convince us that th e BIA's assessment of this claim was an abuse of discretion. P a te l also argues that he never received the notice to appear because the asylum o f f ic e mailed it to an incorrect address in New Jersey. Patel offers a referral notice from th e asylum office in Lyndhurst, New Jersey, addressed to him at a New Jersey address, th a t notifies him that his asylum application was rejected and that his case was being re f erre d to an IJ. (A.R. 172-175.) However, the notice to appear, dated March 10, 1998, s h o w s that service was made in person and by mail to what Patel describes as his "old" P e n n s ylv a n ia address on April 2, 1998. (A.R. 471-472.) A reminder notice explaining th e consequences of failing to attend the hearing was sent to the same address on April 6, 1 9 9 8 . (A.R. 468-469). Furthermore, Patel must have been aware of the time and place of h is removal hearing in order to request a continuance, albeit too late. Accordingly, P a tel's argument that he never received notice of the hearing is without merit. F in a lly, without making an express ineffective assistance of counsel claim, Patel

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s ta te s that his prior attorney failed to raise the issue regarding his change of address and th e alleged resulting notice defects. It does not appear that Patel properly exhausted this c la im before the BIA, and, as such, we lack jurisdiction. See Abdulrahman, 330 F.3d at 5 9 4 -95 . Even if he did exhaust the claim, his statement regarding his attorney's p e rf o rm a n c e alone fails to satisfy the requirements of Matter of Lozada, 19 I. & N. Dec. 6 3 7 (BIA 1988). IV . F o r the foregoing reasons, we will deny the petition for review.

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