Opinion
No. 09-4218-ag.
August 18, 2010.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
Gurmeet Singh, New York, N.Y., pro se.
Tony West, Assistant Attorney General, Civil Division; Leslie McKay, Assistant Director; Melissa Neiman-Kelting, Senior Litigation Counsel; Kristofer R. McDonald, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for respondent.
PRESENT: DENNIS JACOBS, Chief Judge, JON O. NEWMAN and DENNY CHIN, Circuit Judges.
SUMMARY ORDER
Petitioner Gurmeet Singh, a native and citizen of India, seeks review of the September 11, 2009, order of the BIA, affirming the March 13, 2008, decision of Immigration Judge ("IJ") Robert D. Weisel, which denied his motion to reopen. In re Gurmeet Singh, No. A072 473 324 (B.I.A. Sept. 11, 2009), affg No. A072 473 324 (Immig. Ct. N.Y. City Mar. 13, 2008). We assume the parties' familiarity with the underlying facts and procedural history of the case.
When, as here, an alien files a motion that seeks both rescission of an in absentia exclusion order, as well as reopening of proceedings based on new evidence, we treat the motion as comprising distinct motions to rescind and to reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152 n. 1 (2d Cir. 2006). We address separately each of Singh's motions below.
I. Motion to Rescind
We review the denial of a motion to rescind an in absentia exclusion order for abuse of discretion. See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); see also Kaur v. BIA 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). The agency's regulations provide that, although motions to rescind in absentia orders of exclusion are not subject to time or numerical limitations, to obtain rescission an alien must demonstrate that he had reasonable cause for his failure to appear. See 8 C.F.R. § 1003.23(b)(4)(iii)(B); In re N-B-, 22 I. N. Dec. 590, 592 (BIA 1999).
As a threshold matter, we find meritless Singh's argument that his exclusion order should have been rescinded because his departure from the United States prior to his exclusion hearing divested the IJ of jurisdiction over his proceedings. As the BIA noted, Singh failed to establish that he had departed from the United States before his scheduled hearing date. Regardless, even assuming Singh could establish that he was outside the United States at the time of his hearing, an alien "cannot compel the termination of deportation proceedings which have been commenced against him merely by effecting a departure and reentry." See Matter of Brown, 18 I. N. Dec. 324, 325 (BIA 1982); see also Ahmed v. Gonzales, 432 F.3d 709, 711 (7th Cir. 2005) (noting that upon finding that an alien is removable and received adequate notice of a hearing, "an immigration judge [does not have] discretion to terminate removal proceedings because an alien has left the country," but must instead issue an order of removal).
Singh additionally argues that he established "reasonable cause" for his absence from the proceedings based on the ineffective assistance of his former counsel. However, as the BIA properly found, Singh cannot show any prejudice regarding his failure to appear at his March 1993 hearing arising from any ineffective assistance of counsel related to the filing of his first motion to reopen as that ineffectiveness did not occur until after he failed to appear. See Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994) (holding that an alien must demonstrate actual prejudice to prevail on an ineffective assistance claim). Moreover, in light of the numerous reasons Singh proffered for failing to attend his March 1993 exclusion hearing, the BIA did not abuse its discretion in finding that Singh failed to establish that his failure to appear at his March 1993 exclusion hearing was due to any ineffective assistance on the part of his prior counsel. Thus, because Singh failed to establish reasonable cause for his failure to appear, see Matter of Haim, 19 I. N. Dec. 641, 642 (BIA 1988), the BIA did not abuse its discretion in denying his motion to rescind.
II. Motion to Reopen
The BIA similarly did not abuse its discretion in finding that Singh's request to adjust to permanent resident status on the basis of an approved Immigrant Petition for Alien Worker did not constitute grounds for reopening his case. See Matter of Castro-Padron, 21 I. N. Dec. 379, 380 (BIA 1996). As the BIA has found, an IJ in exclusion proceedings has jurisdiction to adjudicate adjustment applications only in limited circumstances. Because those circumstances do not pertain here, the BIA found that Singh was not eligible for adjustment of status in exclusion proceedings and properly denied the motion to reopen. See id. To the extent Singh argues that reopening is appropriate to allow him to pursue a request for cancellation of removal, we decline to address this unexhausted argument. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).