21-6592 Sharipov v. Garland BIA Poczter, IJ A200 911 450

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 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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 22nd day of April, two thousand 4 twenty-four. 5 6 PRESENT: 7 RICHARD C. WESLEY, 8 RAYMOND J. LOHIER, JR., 9 MARIA ARAÚJO KAHN, 10 Circuit Judges. 11 _____________________________________ 12 13 NUSRATULLO SHARIPOV, 14 Petitioner, 15 16 v. 21-6592 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 24 1 FOR PETITIONER: Tatiana S. Aristova, Khavinson & Associates, 2 P.C., Plainsboro, NJ. 3

4 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 5 Attorney General; Linda S. Wernery, 6 Assistant Director; Gregory M. Kelch, Senior 7 Trial Attorney, Office of Immigration 8 Litigation, United States Department of 9 Justice, Washington, DC.

10 UPON DUE CONSIDERATION of this petition for review of a Board of

11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

12 DECREED that the petition for review is DENIED in part and DISMISSED in part.

13 Petitioner Nusratullo Sharipov, a native of the Soviet Union and citizen of

14 Tajikistan, seeks review of an October 29, 2021 decision of the BIA denying his

15 motion to reopen and affirming a February 7, 2019 decision of an Immigration

16 Judge (“IJ”), which denied his motion to rescind an in absentia removal order. In

17 re Nusratullo Sharipov, No. A 200 911 450 (B.I.A. Oct. 29, 2021), aff’g No. A 200 911

18 450 (Immigr. Ct. N.Y.C. Feb. 7, 2019). We assume the parties’ familiarity with the

19 underlying facts and procedural history.

20 In 2019, the IJ scheduled a removal hearing by mailing a hearing notice to

21 Sharipov’s counsel. Sharipov did not appear at the hearing and was ordered

22 removed in absentia. Nearly 10 months later, Sharipov, through new counsel,

2 1 moved to rescind the removal order, arguing that he did not have notice of the

2 hearing because the immigration court had the wrong address for him. He later

3 added a request for reopening based on an I-130 immediate relative petition that

4 his wife had filed on his behalf. We have considered both the IJ’s and the BIA’s

5 decisions. Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir. 2006).

6 We review the agency’s denial of these motions for abuse of discretion. See Alrefae

7 v. Chertoff,

(2d Cir. 2006) (motion to rescind); Ali v. Gonzales, 448

(2d Cir. 2006) (motion to reopen).

9 We find no abuse of discretion in the agency’s denial of Sharipov’s motion

10 to rescind. The agency may rescind an in absentia order at any time if the

11 noncitizen did not receive notice of the hearing. 8 U.S.C. § 1229a(b)(5)(C)(ii); 8

(b)(4)(ii). The record reflects, and Sharipov does not dispute, that

13 the hearing notice was sent to his counsel, who appeared at the hearing. An alien

14 may be removed in absentia if he fails to appear “after written notice . . . has been

15 provided to the alien or the alien’s counsel of record.” 8 U.S.C. § 1229a(b)(5)(A)

16 (emphasis added). Because counsel received the notice, the notice requirement

17 was satisfied. See Song Jin Wu v. INS,

(2d Cir. 2006) (determining,

3 1 under prior version of the statute, that petitioner failed to rebut presumption of

2 proper notice when attorney of record received notice of the hearing).

3 Sharipov argues that the agency nevertheless abused its discretion because

4 his attorney gave the immigration court the wrong address for him. He has not

5 cited any authority for his argument that the IJ was required to reject a change of

6 address form signed only by his counsel. On the contrary, the Immigration Court

7 Practice Manual contemplates that attorney will submit change of address forms

8 on their client’s behalf. See Immigration Court Practice Manual, ch. 2.2,

9 https://www.justice.gov/eoir/reference-materials/ic/chapter-2/2 (last visited Oct.

10 31, 2023) (“When submitted by an attorney or accredited representative, acting as

11 a practitioner of record, the EOIR-33/IC must be submitted electronically through

12 ECAS for all cases eligible for electronic filing and in paper in all other cases.”).

13 Moreover, Sharipov has not demonstrated that he lacked oral notice of the

14 address on file, and he failed to correct the alleged error. At the last hearing

15 before the in absentia removal order was entered, the IJ confirmed Sharipov’s

16 address. The IJ’s decision denying the motion to rescind states that the audio

17 recording confirmed that the address was translated. Sharipov has not presented

18 sufficient evidence to contradict that determination.

4 1 Because Sharipov’s attorney received notice, and because Sharipov had

2 notice of the address on file and did not correct the alleged error or remain in

3 contact with his counsel, the agency did not abuse its discretion in denying the

4 motion to rescind. See 8 U.S.C. § 1229a(b)(5)(C)(ii); Song Jin Wu,

5 (concluding that notice to counsel was sufficient where there was “no evidence

6 that delivery was improper or that nondelivery was not due to [petitioner’s]

7 failure to provide his correct address”).

8 Nor did the BIA abuse its discretion by denying the motion to reopen.

9 Sharipov does not dispute that the motion was untimely filed more than 90 days

10 after the final administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

11 § 1003.2(c)(2). Moreover, a motion to reopen to seek adjustment of status does

12 not fall into a statutory or regulatory exception to the filing deadline. See 8 U.S.C.

13 § 1229a(c)(7)(C)(ii), (iv) (listing exceptions);

(c)(3)(ii) (same);

14 Matter of Yauri,

(B.I.A. 2009) (“[U]ntimely motions to reopen

15 to pursue an application for adjustment of status . . . do not fall within any of the

16 statutory or regulatory exceptions to the time limits for motions to reopen . . . and

17 will ordinarily be denied.” (quotation marks omitted)). To the extent the BIA

18 declined to reopen sua sponte despite the untimely filing, we lack jurisdiction to

5 1 review that “entirely discretionary” decision. Ali,

; Li Chen v.

2 Garland,

(2d Cir. 2022).

3 For the foregoing reasons, the petition for review is DENIED in part and

4 DISMISSED in part. All pending motions and applications are DENIED and

5 stays VACATED.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court

6