09-4996-ag Bhela v. Holder BIA A073 669 376 

### 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** 3 **New York, on the 7 th** **day of February, two thousand eleven.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **BARRINGTON D. PARKER,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges**.** 10

**_________________________________________** 11 12 **UJJALPAL SINGH BHELA,** 13 Petitioner**,** 14 15 **v. 09-4996-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_________________________________________** 21 22 **FOR PETITIONER: Viney K. Gupta, Orange, California.** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; Mary Jane Candaux,** 26 **Assistant Director; Kiley L. Kane,** 27 **Trial Attorney, Office of** 28 **Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED, that the petition for review 3 is DENIED. 4 Petitioner Ujjalpal Singh Bhela, a native and citizen 5 of India, seeks review of the November 17, 2009, decision of 6 the BIA denying his motion to reopen. In re Ujjalpal Singh 7 Bhela , No. A073 669 376 (B.I.A. Nov. 17, 2009). We assume 8 the parties’ familiarity with the underlying facts and 9 procedural history of the case. 10 The majority of the issues raised by Bhela are not 11 properly before us. Bhela asks us to vacate his in absentia 12 removal order from 1999. Under 8 U.S.C. § 1252(d)(1), we 13 “may review a final order of removal only if . . . the alien 14 has exhausted all administrative remedies available to the 15 alien as of right.” Bhela failed to challenge the IJ’s in 16 absentiaremoval order, or the IJ’s denial of his motion to 17 reopen and rescind that order, in his 2009 motion to reopen 18 with the BIA. Moreover, Bhela did not appeal either the 19 1999 IJ decision entering an in absentiaremoval order 20 against him, or the IJ’s denial of his motion to reopen 21 proceedings in order to rescind that in absentiaorder. 22 Accordingly, the merits of Bhela’s in absentiaremoval order 233 are not properly before us, and, as a statutory matter, we 1 lack jurisdiction to review that order. See8 U.S.C. 2 § 1252(b)(1) (requiring a petition for review to be filed 3 within thirty days of the final order of removal); Stone v. 4

INS , 514 U.S. 386, 394 (1995); Malvoisin v. INS , 268 F.3d 5 74, 75 (2d Cir. 2001). 6 Bhela also claims, for the first time in his lengthy 7 immigration proceedings, ineffective assistance by his 8 former counsel, who represented him in the immigration 9 proceedings that commenced in 1997. In addition to the 10 statutory requirement that a petitioner exhaust the 11 categories of relief he seeks, 8 U.S.C. § 1252(d)(1), a 12 petitioner must also raise to the BIA the specific issue he 13 later raises to this Court. See Foster v. INS , 376 F.3d 75, 14 78 (2d Cir. 2004). While not jurisdictional, this 15 judicially imposed exhaustion requirement is mandatory. Lin 16 Zhong v. U.S. Dep’t of Justice , 480 F.3d 104, 119-20 (2d 17 Cir. 2007). Bhela failed to raise ineffective assistance of 18 counsel in either his initial appeal to the BIA, or in his 19 2009 motion to reopen with the BIA, and thus, we decline to 20 consider this unexhausted issue. 21 Bhela further argues that the BIA abused its discretion 22 in denying his motion to reopen. Because Bhela’s motion to 234 reopen was untimely, and in his motion, he alleged neither 1 ineffective assistance of counsel, which may have tolled the 2 time period, nor changed country conditions, which may 3 constitute an exception to the time limit, the BIA construed 4 the motion as a request for it to exercise its sua sponte 5 authority to reopen proceedings at any time. See8 C.F.R. 6 § 1003.2(a). The BIA then found that it lacked authority to 7 reopen proceedings because Bhela had self-executed his 8 outstanding in absentiaremoval order. The regulations 9 provide that a motion to reopen “shall not be made by . . . 10 [an alien] subsequent to his or her departure from the 11 United States.” 8 C.F.R. § 1003.2(d). The BIA has 12 interpreted this provision as depriving it of jurisdiction 13 to exercise its sua sponte reopening authority after an 14 alien has departed the United States, and we have deferred 15 to that interpretation. See Xue Yong Zhang v. Holder, 617 16 F.3d 650, 660-61 (2d Cir. 2010) ; In re Armendarez-Mendez , 24 17 I. & N. Dec. 646 (B.I.A. 2008). 18 In concluding that it lacked jurisdiction to reopen, 19 the BIA failed to consider either Bhela’s pending self20 petition as the abused spouse of a United States citizen, or 21 the special rule governing motions to reopen by those 22 seeking relief as the battered spouse of a United States 235 citizen. See8 U.S.C. § 1229a(c)(7)(C)(iv). However, any 1 remand would be futile, because we can “confidently predict” 2 that even if the agency were to consider Bhela’s motion as 3 governed by the special rule, it would deny the motion. See 4 Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 339 (2d 5 Cir. 2006) (holding that remand is futile “when the 6 reviewing court can ‘confidently predict’ that the agency 7 would reach the same decision absent the errors that were 8 made” (quoting Cao He Lin v. U.S. Dep’t of Justice , 428 F.3d 9 391, 395 (2d Cir. 2005)). The statute governing a motion to 10 reopen by an alien seeking relief as the abused spouse of a 11 United States citizen provides that such a motion to reopen 12 must be filed within one year of the final administrative 13 order of removal. See8 U.S.C. § 1229a(c)(7)(C)(iv)(III). 14 Bhela was ordered removed in absentiain 1999, and his 15 motion to the IJ to reopen proceedings and rescind that 16 order was denied that same year. Thus, there is no question 17 that Bhela’s 2009 motion to reopen was untimely even under 18 the special rule for abused spouses. See id.Moreover, 19 Bhela did not allege any extraordinary circumstances, or any 20 extreme hardship to his children, that would excuse the one 21 year filing deadline. See id

. 22 For the foregoing reasons, the petition for review is 236 DENIED. As we have completed our review, any stay of 1 removal that the Court previously granted in this petition 2 is VACATED, and any pending motion for a stay of removal in 3 this petition is DISMISSED as moot. Any pending request for 4 oral argument in this petition is DENIED in accordance with 5 Federal Rule of Appellate Procedure 34(a)(2), and Second 6 Circuit Local Rule 34.1(b). 7
FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9