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,

(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,

(2d Cir. 2006); In re M-S-, 22

, 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,

(2d Cir. 2006); see

10 also Maghradze v. Gonzales,

, 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,

(2d

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

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

(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,

.

10 Proper service on the attorney of record creates a presumption

11 of proper notice on the noncitizen. See

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,

.

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,

(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

.

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,

. 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,

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,

, 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

(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

7