18-3705

De Souza-De Queiroz v. Barr

BIA

Farber, IJ

A078 965 604

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 

New York, on the 23rd 4 day of April, two thousand twenty.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 Chief Judge,

9 DENNY CHIN,

10 RAYMOND J. LOHIER, JR.,

11 Circuit Judges.

12 _____________________________________

13

14 ADEMIR DE SOUZA-DE QUEIROZ,

15 Petitioner,

16

17 v. 18-3705

18 NAC

19 WILLIAM P. BARR, UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Gerald R. Nowotny, Esq., Latin 

25 American Law Center, Canton, CT.

26

27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

28 General; Shelley R. Goad, 
2

1 Assistant Director; Julia J. 

2 Tyler, Trial Attorney, Office of 

3 Immigration Litigation, United 

4 States Department of Justice, 

5 Washington, DC.

6 UPON DUE CONSIDERATION of this petition for review of a 

7 Board of Immigration Appeals (“BIA”) decision, it is hereby 

8 ORDERED, ADJUDGED, AND DECREED that the petition for review 

9 is DENIED.

10 Petitioner Ademir De Souza-De Queiroz (“De Souza”), a 

11 native and citizen of Brazil, seeks review of a December 7, 

12 2018, decision of the BIA both denying his second motion to 

13 reopen and affirming a March 7, 2018, decision of an 

14 Immigration Judge (“IJ”) denying his first motion to reopen. 

15 In re Ademir De Souza-De Queiroz, No. A 078 965 604 (B.I.A. 

16 Dec. 7, 2018), aff’g No. A 078 965 604 (Immig. Ct. N.Y. City

17 Mar. 7, 2018). We assume the parties’ familiarity with the 

18 underlying facts and procedural history in this case.

19 When, as here, an alien files a motion that seeks both 

20 rescission of an in absentia removal order as well as 

21 reopening of removal proceedings based on new claims for 

22 relief from removal, we treat the motion as “comprising two 

23 distinct motions” to rescind and to reopen. Alrefae v. 

24 Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). We review the 
3

1 denial of a motion to rescind an in absentia removal order 

2 under the same abuse of discretion standard applicable to a 

3 motion to reopen. Id. De Souza was ordered removed in 

4 absentia in 2003 and sought to rescind that order and reopen 

5 proceedings in 2018. We find no abuse of discretion in the 

6 agency’s decisions denying his motions. 

7 A motion to rescind must be filed within 180 days of the 

8 removal order unless “the alien demonstrates that [he] did 

9 not receive notice” of his hearing. 8 U.S.C. 

10 § 1229a(b)(5)(C). De Souza did not satisfy the requirements 

11 for this exception to the 180-day deadline. Although he

12 alleged a deficiency in his notice to appear, he appeared at 

13 an initial hearing and did not allege non-receipt of the 

14 relevant hearing notice. Accordingly, to the extent he 

15 sought to rescind the order, his motion was untimely. See 

16 id. 

17 To the extent he sought reopening to apply for asylum or 

18 cancellation of removal, his motion was also untimely. An 

19 alien seeking to reopen proceedings may file a motion to 

20 reopen no later than 90 days after the final administrative 

21 decision. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 
4

1 §§ 1003.2(c)(3), 1003.23(b)(1). There is no dispute that De 

2 Souza’s motion was untimely because it was filed 15 years 

3 after his final removal order. While there is an exception 

4 to the time limitation for asylum, it does not apply here.

5 “There is no time limit on the filing of a motion to reopen 

6 if the basis of the motion is to apply for [asylum] and is 

7 based on changed country conditions arising in the country of 

8 nationality or the country to which removal has been ordered, 

9 if such evidence is material and was not available and would 

10 not have been discovered or presented at the previous 

11 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). The BIA did 

12 not abuse its discretion in declining to reopen to the extent 

13 that De Souza sought to apply for asylum based on changed 

14 country conditions because he did not file the required

15 application for relief and evidence demonstrating changed 

16 country conditions. Id.; 8 C.F.R. § 1003.2(c)(1). While 

17 counsel discussed country conditions in the motion and 

18 supporting briefs, counsel’s statements are not evidence, see 

19 Pretzantzin v. Holder, 736 F.3d 641, 651 (2d Cir. 2013), and 

20 he did not identify any change in conditions in Brazil. De 

21 Souza’s allegation of changed personal circumstances does not 
5

1 satisfy the exception. See Wei Guang Wang v. BIA, 437 F.3d 

2 270, 273 (2d Cir. 2006) (holding that changed personal 

3 circumstances do not fall within the changed conditions 

4 exception to reopening).

5 Although De Souza also sought reopening to apply for 

6 cancellation of removal under 8 U.S.C. § 1229b(b), there are 

7 no exceptions to the time limitation for cancellation. See 

8 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. §§ 1003.2(c)(3)(i)–

9 (iv), 1003.23(b)(4)(i)–(iv).

10 De Souza’s remaining arguments fail as well. De Souza

11 contends that his notice to appear (“NTA”) was ineffective to 

12 vest the IJ with jurisdiction because it omitted the time and 

13 date of his initial hearing. This argument is foreclosed by

14 Banegas Gomez v. Barr, because he was subsequently personally 

15 served with a hearing notice and appeared at his initial 

16 hearings. 922 F.3d 101, 112 (2d Cir. 2019) (holding that “an 

17 NTA that omits information regarding the time and date of the 

18 initial removal hearing is nevertheless adequate to vest 

19 jurisdiction in the Immigration Court, at least so long as a 

20 notice of hearing specifying this information is later sent 

21 to the alien”). We lack jurisdiction to review the BIA’s 
6

1 “entirely discretionary” determination not to exercise its 

2 authority to reopen proceedings sua sponte. Ali v. Gonzales, 

3 448 F.3d 515, 518 (2d Cir. 2006). 

4 For the foregoing reasons, the petition for review is 

5 DENIED. All pending motions and applications are DENIED and 

6 stays VACATED.

7 FOR THE COURT: 

8 Catherine O’Hagan Wolfe,

9 Clerk of Court