Opinion
No. 05-6740-ag.
October 5, 2007.
On Petition for Review from the Board of Immigration Appeals. UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
Submitting for Petitioner: Luisa Peguero, pro se, New York, NY.
Appearing for Respondent: Zachary Cunha, Assistant United States Attorney, for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Brooklyn, NY.
Present: HON. JOSEPH M. McLAUGHLIN, HON. ROSEMARY S. POOLER, HON. REENA RAGGI, Circuit Judges.
Petitioner Luisa Peguero, a native and citizen of the Dominican Republic, seeks review of the December 2, 2005 order of the BIA affirming without opinion the June 16, 2005 order of Immigration Judge ("IJ ") Alan Vomacka denying her motion to reopen her deportation proceeding. In re Luisa Ramona Peguero, No. A39-185-957 (B.I.A. December 2, 2005), aff'g No. A39-185-957 (U.S. Immigration Court, New York, NY, June 16, 2005). We assume the parties' familiarity with the underlying facts and procedural history of the case.
Where the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ's decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005); Yu Sheng Zhang v. U.S. DOJ, 362 F.3d 155, 158 (2d Cir. 2004) (per curiam). BIA's denial of a motion to reopen is reviewed for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006); Ke Zhen Zhao v. U.S. DOJ, 265 F.3d 83, 93 (2d Cir. 2001).
In 1993, Peguero was charged with being subject to deportation, under former Immigration and Nationality Act (INA) § 241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i) (now INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i)), because she had been convicted of controlled substance possession offenses in New York and New Jersey. Although Peguero alleged that she is eligible for a discretionary waiver of deportation under former INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996), she failed to attend hearings set for October 6, 1998, February 28, 2002, and April 5, 2005. Each time she was ordered deported in absentia, and each time she moved to reopen her deportation proceeding. Peguero prevailed twice, but IJ Vomacka denied her motion to reopen in June 2005.
Under former INA § 242b(c)(3), 8 U.S.C. § 1252b(c)(3) (repealed 1996), a deportation order that was made as a consequence of failure to appear may be rescinded only if the alien demonstrates that the failure to appear was because of exceptional circumstances, or that she did not receive notice, or that she was in Federal or State custody and failed to appear through no fault of her own. It is undisputed that Peguero was properly served with notice of the time and place of the April 5, 2005 hearing, and that she was not in custody on that date.
Former INA § 242b defined "exceptional circumstances" as circumstances "beyond the control of the alien" and gave as examples "serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances." 8 U.S.C. § 1252b(f)(2). A deportation order may be rescinded if the alien was unable to appear at a deportation hearing for reasons that the alien had no control over, whether "for physical reasons, such as serious illness, or by reason of a moral imperative, such as the death of an immediate relative." Mardones v. McElroy, 197 F.3d 619, 624 (2d Cir. 1999).
Peguero does not meet her burden of showing that illness — whether mental or physical — or moral imperative made it impossible for her to attend the April 5, 2005 hearing. She asserts that she thought the hearing was scheduled for April 6, and that she confused one date with another, but does not demonstrate that she was incapable of remembering the correct date, rather than just negligent in keeping track of appointments. The IJ did not abuse his discretion in determining that Peguero failed to demonstrate exceptional circumstances explaining her failure to attend the hearing.
Peguero's motion to reopen is DENIED, and her motion to file a supplemental letter brief is GRANTED. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending request for a stay of removal is DISMISSED as moot.