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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of New

York, on the 29th 4 day of August, two thousand twelve.

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 JON O. NEWMAN,

10 GERARD E. LYNCH,

11 Circuit Judges.

12 _________________________________________

13

14 EMMANUEL ANDERSON, AKA GEORGE ORHIN 

15 KWASI ANSAH, AKA GEORGE ANSAH,

16 Petitioner, 

17

18 v. 11-4516

19 NAC 

20 ERIC H. HOLDER, JR., UNITED STATES 

21 ATTORNEY GENERAL,

22 Respondent.

23 _________________________________________

24 

25 FOR PETITIONER: Thomas M. Griffin, Philadelphia,

26 Pennsylvania.

27

28 FOR RESPONDENT: Stuart M. Delery, Acting Assistant

29 Attorney General; Nancy E. Friedman,

30 Senior Litigation Counsel; Christina
2

1 Bechak Parascandola, Trial Attorney,

2 Office of Immigration Litigation,

3 United States Department of Justice,

4 Washington, D.C.

5

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 is

9 DENIED.

10 Emmanuel Anderson, a native and citizen of Ghana, seeks

11 review of a September 26, 2011, order of the BIA, affirming

12 the October 15, 2010, decision of Immigration Judge (“IJ”)

13 Sandy K. Hom, which denied his motion to reopen. 

14 In re Emmanuel Anderson, No. A074 234 332 (B.I.A. Sept. 26,

15 2011), aff’g No. A074 234 332 (Immig. Ct. N.Y. City Oct. 15,

16 2010). We assume the parties’ familiarity with the underlying

17 facts and procedural history.

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

19 rescission of an in absentia exclusion order as well as

20 reopening of proceedings based on new evidence, we treat the

21 motion as comprising distinct motions to rescind and to

22 reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.

23 2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152 n.1

24 (2d Cir. 2006). We review the denial of a motion to rescind

25 an in absentia exclusion order under the same abuse of
3

1 discretion standard applicable to motions to reopen. 

2 See Alrefae, 471 F.3d at 357; see also Kaur v. BIA, 413 F.3d

3 232, 233 (2d Cir. 2005) (per curiam). 

4 A. Motion to Rescind

5 Under the circumstances of this case, we review both the

6 IJ’s and the BIA’s opinions are both reviewed, “for the sake

7 of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d

8 Cir. 2008) (per curiam) (internal quotation marks omitted). 

9 “A motion to reopen exclusion hearings on the basis that the

10 Immigration Judge improperly entered an order of exclusion in

11 absentia must be supported by evidence that the alien had

12 reasonable cause for his failure to appear.” 8 C.F.R. 

13 § 1003.23(b)(4)(iii)(B); see also Matter of Haim, 19 I&N Dec.

14 641, 642 (BIA 1988). Failure to receive notice is 

15 “reasonable cause.” 8 C.F.R. § 1003.23(b)(4)(iii)(A)

16 (permitting rescission of an in absentia deportation order at

17 any time if the alien did not receive notice of his hearing). 

18 Anderson argues that he was not given notice of the

19 October 1995 exclusion hearing. As the agency observed,

20 however, the record evidence reflected that an immigration

21 officer personally served Anderson with a Form I-122, Notice

22 to Applicant for Admission Detained/Deferred for Hearing
4

1 Before Immigration Judge (“Notice to Applicant”), which

2 ordered Anderson to appear before an IJ at a specified date,

3 time, and location. Anderson neither disputes the accuracy of

4 the information contained in the Notice to Applicant, nor

5 presents any compelling evidence undermining the validity of 

6 service. See Kulhawik v. Holder, 571 F.3d 296, 298 (2d

7 Cir.#2009) (per curiam) (recognizing that personal service of

8 a Notice of Hearing provided proper notification of a

9 hearing). Accordingly, the agency did not abuse its

10 discretion in denying Anderson’s motion to rescind the in

11 absentia exclusion order for failure to establish a reasonable

12 cause for his failure to appear. See 8 C.F.R. 

13 § 1003.23(b)(4)(iii)(B); see also 8 C.F.R. 

14 § 1003.23(b)(4)(iii)(A); Matter of Haim, 19 I&N Dec. at 642.

15 B. Motion to Reopen

16 The agency similarly did not abuse its discretion in

17 denying Anderson’s request to adjust to permanent resident

18 status. An approved immigrant visa petition does not

19 constitute grounds for reopening the case. See Matter of

20 Castro-Padron, 21 I&N Dec. 379 (BIA 1996). In exclusion

21 proceedings, the IJ and the BIA “generally lack jurisdiction

22 to entertain an application for adjustment of status,” except
5

1 in limited circumstances that are inapplicable here. See id. 

2 Because it is undisputed that Anderson was in exclusion

3 proceedings, the agency lacked jurisdiction over Anderson’s

4 adjustment of status application. See 8 C.F.R. §§ 245.2(a)(1)

5 and 1245.2(a)(1); Matter of Castro-Padron, 21 I&N Dec. at 379-

6 80. 

7 For the foregoing reasons, the petition for review is

8 DENIED. 

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk