18

- 3705 De Souza

- De Queiroz v. Barr BIA Farber , IJ A 078 965 604 

### 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 APP**  **ENDIX 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.** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall**  2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **3 r**  **d da**  **y of April,**  **two thousand twenty**  **.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN**  **,** 7 **C hief**  **Judge ,**  8 **DENNY CHIN ,**  9 **RAYMOND J. LOHIER, JR. ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **ADEMIR DE SOUZA -**  **DE QUEIROZ ,**  14 **Petitioner ,**  15 16
**v. 18** 
**- 3705**  17 **NAC** 18 **WILLIAM P. BARR, UNITED STATES**  19 **ATTORNEY GENERAL ,**  20 **Respondent .**  21

**_____________________________________** 22 23 **FOR PETITIONER :**  Gerald R

. Nowotny, Esq. , Latin 24 American Law Center, Canton , CT

. 25 26 **FOR RESPONDENT:** Joseph H. Hunt , Assistant Attorney 27 General ; Shelley R. Goad , 282 Assistant Director; Julia J. 1 Tyler , Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, D C. 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 petitio n for review 8

is DENIED

. 9

Petitioner Ademir De Souza

- De Queiroz (“De Souza”) , a 10

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

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

reo pen and affirming a March 7, 2018 , decision of an 13
Immigration Judge (“IJ”) denying his first motion to reopen

. 14

In re Ademir De Souza

- De Queiroz , No. A 078 965 604 (B.I.A. 15

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

Mar. 7, 2018 ). We assume the parties’ familiarity with the 17
underlying facts and procedural history in this case. 18

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

rescission of an in absentia removal order as well as 20
reopening of removal proceedings based on new claim s for 21

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

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

Chertoff , 471 F.3d 353, 357 (2d Cir. 2006) . We review the 243 denial of a motion to rescind an in absentia removal order 1
under the same abuse of discretion standard applicable to a 2
motion to reopen

. Id. De Souza was ordered removed in 3
absentia in 2003 and sought to rescind that order and reopen 4
proceedings in 2018. We find no abuse of discretion in the 5

agen cy’s decisions denying his motions

. 6
A motion to rescind must be filed within 180 days of the 7

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

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

§ 1229a(b)(5) (C)

. De Souza did not satisfy the requirem ents 10

for this exception to the 180

- day deadline. Although he 11
alleged a deficiency in his notice to appear, he appeared at 12

an initial hearing and did not allege non

- receipt of the 13
relevant hearing notice. Accordingly, to the extent he 14
sought to rescind the order, his motion was untimely. See 15

id. 16
To the extent he sought reopening to apply for asylum or 17

cancellation of removal, his motion was also untimely. An 18
alien seeking to reopen proceedings may file a motion to 19
reopen no later than 90 days after the final administrative 20

decision. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 214 § § 1003.2(c)(3) , 1003.23(b)(1). There is no dispu te that De 1
Souza’s motion was untimely because it was filed 15 years 2

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

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

. 4

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

if the basis of the motion is to apply for [asylum] and is 6
based on changed country conditions arising in the country of 7
nationality or the country to which removal has been ordered, 8

if such evidence is material and was not available and would 9
not have been discovered or presented at the previous 10
proceedin g. ” 8 U.S.C. § 1229a(c)(7)(C)(ii). The BIA did 11
not abuse its discretion in declining to reopen to the extent 12
that De Souza sought to apply for asylum based on changed 13
country conditions because he did not file the required 14
application for relief and e vid ence demonstrating changed 15
country conditions. Id. ; 8 C.F.R. § 1003.2(c)(1)

. While 16

counsel discussed country conditions in the motion and 17
supporting briefs , counsel’s statements are not evidence , s ee 18

Pretzantzin v. Holder , 736 F.3d 641, 651 (2d Cir. 2013 ) , and 19
he did not identify any change in conditions in Brazil

. De 20

Souza ’s allegation of changed personal circumstances does not 215 satisfy the exception. See Wei Guang Wang v. BIA , 437 F.3d 1

270, 273 (2d Cir. 2006) (holding that changed personal 2
circumstances do not fall within the changed conditions 3
exception to reopening). 4
Although De Souza also sought reopening to apply for 5

cancellation of removal under 8 U.S.C. § 1229b(b) , there are 6
no exceptions to the time limitation for cancellation. See 7
8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. §§ 1003.2(c)(3)(i)

– 8
(iv), 1003.23(b)(4)(i)

– (iv). 9
De Souza’s remaining arguments fail as well

. De Souza 10

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

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

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

Banegas Gomez v. Barr , because he was subsequently personally 14
served with a hearing notice and appeared at his initial 15
hearings

. 922 F.3d 101, 1 12 (2d Cir. 2019) (holding that “an 16
NTA that omits information regarding the time and date of the 17
initial removal hearing is nevertheless adequate to vest 18
jurisdiction in the Immigration Court, at least so long as a 19

no tice of hearing specifying this information is later sent 20

to the alien” ). W e lack jurisdiction to review the BIA’s 216 “entirely discretionary” determination not to exercise its 1
authority to reopen proceedings sua sponte. Ali v. Gonzales , 2

448 F.3d 515, 518 ( 2d Cir. 2006). 3
For the foregoing reasons, the petition for review is 4

DENIED

. All pending motions and applications are DENIED and 5

stays VACATED. 6

FOR THE COURT: 7 Catherine O ’ Hagan Wolfe , 8 Clerk of Court 9