Rakesh Shah v. Attorney General of the United States of America

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-3547
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RAKESH SHAH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. BIA-1: A073-033-297)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 11, 2013
BEFORE: McKEE, Chief Judge, AMBRO and NYGAARD, Circuit Judges
(Opinion filed September 12, 2013)
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Rakesh Shah is a native of India. After Shah overstayed his visa and failed to
appear at his deportation hearing, the Immigration Judge ordered him deported in
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absentia. The IJ denied Shah’s motions to reopen and rescind the order, and the Board of
Immigration Appeals affirmed. We will deny the petition for review.
I.
After charging Shah with deportability, the former Immigration and Naturalization
Service personally served Shah with an Order to Show Cause. The Order instructed Shah
to appear at a master calendar hearing on December 19, 1996. At this initial hearing,
which Shah attended, he received written and oral notice of his deportation hearing on
February 21, 1997. However, Shah failed to appear at the deportation hearing. The IJ
ordered him deported in absentia. Three days later, the order was mailed to Shah at the
address of record.
On March 14, 1998, the INS approved an I-130 Immigrant Petition that Shah’s
brother filed on Shah’s behalf. In March 2009, Shah’s priority number became current.
He applied for adjustment of status, but the INS denied his application because of the
deportation order that had been entered against him. On July 8, 2010, Shah filed a
motion to reopen his proceedings and a motion to rescind his in absentia deportation
order. He argued that, because he understood little English at the master calendar hearing
and was not provided an interpreter, he did not receive notice of his deportation hearing,
resulting in his failure to appear. The IJ denied Shah’s motions, and the BIA affirmed.
Shah subsequently filed a petition for review.
II.
On a petition for review of the BIA’s decision to deny motions to reopen and
rescind an in absentia deportation order, we determine whether the BIA abused its
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discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004); Santana Gonzalez v. Att’y
Gen., 506 F.3d 274, 276 (3d Cir. 2007). Factual findings are conclusive “unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B) (2005). We review de novo questions of law. Contreras v. Att’y Gen., 665
F.3d 578, 583 (3d Cir. 2012).
An alien may seek to rescind an in absentia deportation order by filing a motion to
reopen either within 180 days after the order has been issued, demonstrating that he failed
to appear because of “exceptional circumstances,” or at any time showing that he did not
receive notice of the hearing. 8 U.S.C. § 1252b(c)(3) (repealed 1996). If not seeking
rescission, he must file a motion to reopen within ninety days of the order. 8 C.F.R. §
1003.23(b)(1) (1997).
The BIA denied Shah’s motion to rescind because he failed to demonstrate that a
lack of notice prevented him from appearing at the deportation hearing. On appeal, Shah
argues that, because he understood little English at the master calendar hearing and was
not provided an interpreter, he did not receive notice. Yet, Shah provided his current
address, stated that he would attempt to hire a lawyer, and asked whether his asylum
application would be granted, all in English. Shah never indicated that he did not
understand what was going on, or that he required an interpreter. The record indicates
that the IJ orally stated the date and time of the deportation hearing, and Shah
acknowledged that he understood. The IJ then signed and gave Shah the written hearing
notice. Shah never sought to have the hearing notice translated, nor did he seek to have
translated the deportation order that was sent to him by mail. Other than Shah’s own
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word, there is no evidence that he did not receive notice, and this will not suffice. The
BIA correctly found that Shah could speak, understand, and respond in English, and it did
not abuse its discretion in concluding that Shah received adequate notice.
The BIA held that Shah’s motions to rescind and reopen were untimely, and
equitable tolling was barred because Shah did not act with due diligence. On appeal,
Shah argues that he acted with due diligence because he did what he thought the IJ
instructed him to do—find an attorney to help him immigrate. However, there is no
evidence other than Shah’s sworn affidavit that this is how he could have understood the
IJ. Moreover, when his priority date became current in March 2009, he did not file his
motions until July 8, 2010. This delay alone was unreasonable, and it renders equitable
tolling inapplicable here.
III.
We conclude that the BIA did not abuse its discretion in denying Shah’s motions
to reopen and rescind his in absentia deportation order. Accordingly, we will deny the
petition for review.
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