Jayesh Patel v. Eric Holder, Jr.
UNPUBLISHED OPINION FILED. [12-60273 Affirmed ] Judge: CDK , Judge: EBC , Judge: SAH Mandate pull date is 01/18/2013 [12-60273]
Date Filed: 11/27/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
November 27, 2012
Lyle W. Cayce
JAYESH KANTIBAHI PATEL, also known as Purishottam Girdharlal Patel,
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A074 585 665
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
Jayesh Kantibahi Patel, a native and citizen of India, seeks a petition for
review of the order of the Board of Immigration Appeals (BIA) dismissing his
appeal from the Immigration Judge’s denial of his motion to reopen the
proceedings in order to rescind his 1996 in absentia order of deportation or,
alternatively, to adjust status. The BIA’s decision is reviewed for an abuse of
discretion. Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 11/27/2012
Patel argues that the BIA should have granted his motion to reopen to
rescind the 1996 in absentia deportation order because he never received notice
of the deportation hearing. However, substantial evidence supports the BIA’s
finding that Patel received personal written and oral notice of the scheduled
hearing, that the notice advised Patel of the consequences of his failure to
appear, and thus, that the notice was sufficient. See 8 U.S.C. §§ 1252b(c)(1) and
(c)(3) (repealed Sept. 30, 1996); In re G-Y-R-, 23 I. & N. Dec. 181, 186 (BIA 2001).
Accordingly, the BIA did not abuse its discretion in affirming the denial of the
motion to reopen to rescind the 1996 in absentia deportation order. See Kane v.
Holder, 581 F.3d 231, 236 (5th Cir. 2009); Singh v. Gonzales, 436 F.3d 484, 487
(5th Cir. 2006).
Patel does not challenge the BIA’s conclusion that he did not comply with
the procedural requirements necessary to perfect his ineffective assistance of
counsel claim or its conclusion that an exceptional circumstances argument
based on his ineffective assistance of counsel claim was untimely. He has, thus,
abandoned those issues in his petition for review. See Soadjede v. Ashcroft, 324
F.3d 830, 833 (5th Cir. 2003).
Additionally, Patel contends that the BIA erred in upholding the denial of
his motion to reopen to adjust status based on relief that was not previously
available, specifically, his wife’s recently approved status as a lawful permanent
resident. He does not challenge the BIA’s determination that the motion to
reopen to adjust status was untimely under 8 C.F.R. § 1003.23 and has, thus,
abandoned the timeliness issue. See id. Given that Patel cannot demonstrate
that his motion was timely, he cannot argue that the BIA should have exercised
its discretion to grant his motion to reopen to adjust his status. See In re
Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002). The BIA did not abuse its
discretion in affirming the denial of the motion as untimely. See Kane, 581 F.3d
at 236; Singh, 436 F.3d at 487; § 1003.23.
Accordingly, Patel’s petition for review is DENIED.
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