Silva-Silva v. Barr

17-2784 Silva-Silva v. Barr BIA Straus, IJ A200 031 712 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 6th day of November, two thousand nineteen. [5] 6 PRESENT: 7 REENA RAGGI, 8 SUSAN L. CARNEY, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ [12] 13 ERICO SILVA-SILVA, AKA ANDERSON 14 ERICO DA SILVA, 15 Petitioner, [16] 17 v. 17-2784 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ [23] 24 FOR PETITIONER: Jeffrey A. Devore, Esq., Palm 25 Beach Gardens, FL. [26] 27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 28 Attorney General; Erica B. Miles, 29 Senior Litigation Counsel; Enitan 30 O. Otunla, Trial Attorney, Office 31 of Immigration Litigation, United 32 States Department of Justice, 33 Washington, DC. 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 Petitioner Erico Silva-Silva, a native and citizen of 6 Brazil, seeks review of an August 10, 2017, decision of the 7 BIA affirming a March 20, 2017, decision of an Immigration 8 Judge (“IJ”) denying Silva-Silva’s motion to reopen his 9 removal proceedings and rescind his removal order. In re 10 Erico Silva-Silva, No. A 200 031 712 (B.I.A. Aug. 10, 2017), 11 aff’g No. A 200 031 712 (Immig. Ct. Hartford Mar. 20, 2017). 12 We assume the parties’ familiarity with the underlying facts 13 and procedural history in this case. 14 We have reviewed both the IJ’s and the BIA’s opinions 15 “for the sake of completeness.” Wangchuck v. Dep’t of 16 Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). We 17 review the denial of a motion to reopen and rescind an in 18 absentia removal order for abuse of discretion. See Alrefae 19 v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). 20 There are two grounds to rescind an in absentia removal 21 order: (1) lack of notice of the hearing; and (2) exceptional [2] 1 circumstances for failure to appear if rescission is 2 requested within 180 days. 8 U.S.C. § 1229a(b)(5)(C); [3] 8 C.F.R. § 1003.23 (b)(4)(ii). Only the first provision is 4 at issue because Silva-Silva filed his motion to reopen and 5 rescind more than 10 years after the IJ entered the removal 6 order. 7 If, as here, notice was “served via regular mail,” there 8 is “a ‘less stringent, rebuttable presumption’ of receipt” 9 than if served by certified mail. Silva-Carvalho Lopes v. 10 Mukasey, 517 F.3d 156, 159 (2d Cir. 2008) (quoting Alrefae, [11] 471 F.3d at 359 ). The agency “must consider all of the 12 petitioner’s evidence (circumstantial or otherwise) in a 13 practical fashion, guided by common sense, to determine 14 whether the slight presumption of receipt of regular mail has 15 more probably than not been overcome.” Id. at 160. 16 Importantly, however, for aliens who receive notice of their 17 obligation to inform the immigration court of any change in 18 address and of the consequences of failing to do so, in 19 compliance with 8 U.S.C § 1229(a), the “requirement that an 20 alien ‘receive’ notice [is] constructively satisfied if 21 notice is properly provided and the alien changes address [3] 1 without informing” the agency. Maghradze v. Gonzales, 462 [2] F.3d 150, 154 (2d Cir. 2006). 3 The agency may consider, among other evidence, the 4 following: 5 (1) the respondent’s affidavit; (2) affidavits from 6 family members or other individuals who are 7 knowledgeable about the facts relevant to whether 8 notice was received; (3) the respondent’s actions 9 upon learning of the in absentia order, and whether 10 due diligence was exercised in seeking to redress 11 the situation; (4) any prior affirmative application 12 for relief, indicating that the respondent had an 13 incentive to appear; (5) any prior application for 14 relief filed with the Immigration Court or any prima 15 facie evidence in the record or the respondent’s 16 motion of statutory eligibility for relief, 17 indicating that the respondent had an incentive to 18 appear; (6) the respondent’s previous attendance at 19 Immigration Court hearings, if applicable; and 20 (7) any other circumstances or evidence indicating 21 possible nonreceipt of notice. [22] 23 Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (B.I.A. 2008). 24 The agency did not abuse its discretion in denying Silva- 25 Silva’s motion to rescind. 26 First, the agency reasonably applied the slight 27 presumption that Silva-Silva received notice of his May 2006 28 hearing based on the following. In July 2005, Silva-Silva 29 was personally served with, and signed and fingerprinted, a 30 Notice to Appear (“NTA”), which placed him in removal [4] 1 proceedings, informed him of the time, date, and place of a 2 hearing in Connecticut, and warned him that he could be 3 ordered removed in absentia if he failed to provide a change 4 of address. He does not allege that he appeared at the time 5 and place listed in the NTA. Moreover, hearing notices 6 mailed to that address in 2005 and 2006 were returned to the 7 immigration court. Although these return notices indicate 8 that Silva-Silva did not actually receive the notices, he “is 9 deemed to be in constructive receipt of properly-provided 10 notice — and hence ineligible for rescission of his in 11 absentia order of removal — if he thwarted delivery.” 12 Maghradze, 462 F.3d at 153-54. The agency did not abuse its 13 discretion in concluding that Silva-Silva thwarted delivery: 14 even crediting his allegation that the Connecticut address 15 was wrong, he received the NTA and Form I-213 that contained 16 the incorrect address, as well as a warning about changing 17 the address and the consequences of failure to appear in the 18 Connecticut immigration court, which was the court listed on 19 his NTA. Because the agency sent the hearing notices to his 20 address of record, he is presumed to be in receipt of the 21 notices. See Silva-Carvalho Lopes, 517 F.3d at 160 ; [5] 1 Maghradze, 462 F.3d at 153-54. 2 Nor did Silva-Silva rebut the presumption of receipt. 3 His affidavit did not explain why he failed to challenge the 4 erroneous address or the fact that the NTA listed the hearing 5 location as Connecticut. Therefore, his affidavit provided 6 no basis for finding the presumption of receipt overcome. 7 See Maghradze, 462 F.3d at 154. 8 The agency also reasonably found it troubling that Silva- 9 Silva failed to inquire into the status of his removal 10 proceedings or apply for relief in those proceedings for 11 approximately 12 years. See Matter of M-R-A-, 24 I. & N. 12 Dec. at 674 (holding that agency may consider movant’s due 13 diligence in seeking to rectify in absentia order and his 14 prima facie eligibility for relief at time of original 15 hearing). His affidavit did not describe any action he took 16 in the almost 12 years that passed between service of the NTA 17 and his motion to reopen and rescind. Therefore, given that 18 Silva-Silva failed to inquire about or apply for relief until 19 his visa petition was approved in 2015, he did not demonstrate 20 that he had an incentive to appear at his hearing and would 21 have done so had he received notice in 2006. See id. [6] 1 Finally, Silva-Silva’s argument that his failure to 2 appear stemmed from the lack of a written translation of the 3 NTA is unavailing. There is no requirement that the 4 Government provide a written translation of the NTA. See 8 [5] U.S.C. § 1229 (a)(1); Lopes v. Gonzales, 468 F.3d 81 , 84-85 6 (2d Cir. 2006) (“[W]e reject [petitioner’s] claim that the 7 notices to appear were defective because they did not advise 8 him in his native Portuguese . . . . The relevant statute 9 does not require that notice be provided in any particular 10 language.”). The record adequately demonstrates that Silva- 11 Silva received the requisite oral notice in Portuguese of the 12 time and place of his hearing and the consequences of failing 13 to appear, and the NTA instructed him to appear before an IJ 14 at “Ribicoff Federal Building 450 Main Street Room 509 15 Hartford CONNECTICUT US.” Certified Administrative Record 16 at 118. 17 In sum, because Silva-Silva was personally served with 18 an NTA that listed both his address and hearing location as 19 Connecticut and warned of the consequences of failing to give 20 notice of a change of his address, Silva-Silva has not 21 overcome the presumption of receipt, and the agency did not [7] 1 abuse its discretion in declining to rescind his in absentia 2 removal order. See 8 U.S.C. § 1229a(b)(5)(C)(ii); see also 3 Silva-Carvalho Lopes, 517 F.3d at 160 ; Matter of M-R-A-, 24 4 I. & N. Dec. at 674. 5 For the foregoing reasons, the petition for review is 6 DENIED. All pending motions are DENIED and stays VACATED. 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court