11-4516 Anderson v. Holder BIA Hom, IJ A074 234 332 

### 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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of New** 3 **York, on the 29 th** **day of August, two thousand twelve.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 Chief Judge, 8 **JON O. NEWMAN,** 9 **GERARD E. LYNCH,** 10 Circuit Judges **.** 11

**_________________________________________** 12 13 **EMMANUEL ANDERSON, AKA GEORGE ORHIN** 14 **KWASI ANSAH, AKA GEORGE ANSAH,** 15 Petitioner**,** 16 17 **v. 11-4516** 18 **NAC** 19 **ERIC H. HOLDER, JR., UNITED STATES** 20 **ATTORNEY GENERAL,** 21 Respondent **.** 22

**_________________________________________** 23 24 **FOR PETITIONER: Thomas M. Griffin, Philadelphia,** 25 **Pennsylvania.** 26 27 **FOR RESPONDENT: Stuart M. Delery, Acting Assistant** 28 **Attorney General; Nancy E. Friedman,** 29 **Senior Litigation Counsel; Christina** 302 **Bechak Parascandola, Trial Attorney,** 1 **Office of Immigration Litigation,** 2 **United States Department of Justice,** 3 **Washington, D.C.** 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 is 8
DENIED. 9 Emmanuel Anderson, a native and citizen of Ghana, seeks 10 review of a September 26, 2011, order of the BIA, affirming 11 the October 15, 2010, decision of Immigration Judge (“IJ”) 12 Sandy K. Hom, which denied his motion to reopen. 13 In re Emmanuel Anderson , No. A074 234 332 (B.I.A. Sept. 26, 14 2011), aff’gNo. A074 234 332 (Immig. Ct. N.Y. City Oct. 15, 15 2010). We assume the parties’ familiarity with the underlying 16 facts and procedural history. 17 When, as here, an alien files a motion that seeks both 18 rescission of an in absentiaexclusion order as well as 19 reopening of proceedings based on new evidence, we treat the 20 motion as comprising distinct motions to rescind and to 21
reopen. Alrefae v. Chertoff,471 F.3d 353, 357 (2d Cir. 22 2006); see also Maghradze v. Gonzales,462 F.3d 150, 152 n.1 23 (2d Cir. 2006). We review the denial of a motion to rescind 24

an in absentia exclusion order under the same abuse of 253 discretion standard applicable to motions to reopen. 1 See Alrefae , 471 F.3d at 357; see also Kaur v. BIA , 413 F.3d 2 232, 233 (2d Cir. 2005) (per curiam). 3 **A. Motion to Rescind** 4 Under the circumstances of this case, we review both the 5 IJ’s and the BIA’s opinions are both reviewed, “for the sake 6 of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d 7 Cir. 2008) (per curiam) (internal quotation marks omitted). 8 “A motion to reopen exclusion hearings on the basis that the 9 Immigration Judge improperly entered an order of exclusion in 10 absentia must be supported by evidence that the alien had 11 reasonable cause for his failure to appear.” 8 C.F.R. 12 § 1003.23(b)(4)(iii)(B);see also Matter of Haim , 19 I&N Dec. 13 641, 642 (BIA 1988). Failure to receive notice is 14 “reasonable cause.” 8 C.F.R. § 1003.23(b)(4)(iii)(A) 15 (permitting rescission of an in absentia deportation order at 16 any time if the alien did not receive notice of his hearing). 17 Anderson argues that he was not given notice of the 18 October 1995 exclusion hearing. As the agency observed, 19 however, the record evidence reflected that an immigration 20 officer personally served Anderson with a Form I-122, Notice 21 to Applicant for Admission Detained/Deferred for Hearing 224 Before Immigration Judge (“Notice to Applicant”), which 1 ordered Anderson to appear before an IJ at a specified date, 2 time, and location. Anderson neither disputes the accuracy of 3 the information contained in the Notice to Applicant, nor 4 presents any compelling evidence undermining the validity of 5 service. See Kulhawik v. Holder,571 F.3d 296, 298 (2d 6 Cir.#2009) (per curiam) (recognizing that personal service of 7 a Notice of Hearing provided proper notification of a 8 hearing). Accordingly, the agency did not abuse its 9 discretion in denying Anderson’s motion to rescind the in 10 absentia exclusion order for failure to establish a reasonable 11 cause for his failure to appear. See8 C.F.R. 12 § 1003.23(b)(4)(iii)(B);see also 8 C.F.R. 13 § 1003.23(b)(4)(iii)(A);Matter of Haim , 19 I&N Dec. at 642. 14 **B. Motion to Reopen** 15 The agency similarly did not abuse its discretion in 16 denying Anderson’s request to adjust to permanent resident 17 status. An approved immigrant visa petition does not 18 constitute grounds for reopening the case. See Matter of 19 Castro-Padron , 21 I&N Dec. 379 (BIA 1996). In exclusion 20 proceedings, the IJ and the BIA “generally lack jurisdiction 21 to entertain an application for adjustment of status,” except 225 in limited circumstances that are inapplicable here. See id

. 1 Because it is undisputed that Anderson was in exclusion 2 proceedings, the agency lacked jurisdiction over Anderson’s 3 adjustment of status application. See 8 C.F.R. §§ 245.2(a)(1) 4 and 1245.2(a)(1);Matter of Castro-Padron , 21 I&N Dec. at 379- 5 80. 6 For the foregoing reasons, the petition for review is 7
DENIED. 8
FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10