Opinion
18-3397 NAC
09-10-2020
RAVIDATH LAWRENCE RAGBIR, Petitioner, v. WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Alina Das, Esq., Jessica Rofé, Esq., Daniela Ugaz, Juan Martinez-Hill, Legal Interns, NYU Immigrant Rights Clinic, Washington Square Legal Services, New York, NY. FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney General; Matthew B. George, Senior Litigation Counsel; Karen L. Melnik, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
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 TO 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 for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10th day of September, two thousand twenty. PRESENT: JON O. NEWMAN, JOHN M. WALKER, JR., DENNY CHIN, Circuit Judges.
FOR PETITIONER:
Alina Das, Esq., Jessica Rofé, Esq., Daniela Ugaz, Juan Martinez-Hill, Legal Interns, NYU Immigrant Rights Clinic, Washington Square Legal Services, New York, NY.
FOR RESPONDENT:
Ethan P. Davis, Acting Assistant Attorney General; Matthew B. George, Senior Litigation Counsel; Karen L. Melnik, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that this petition for review of a decision of the Board of Immigration Appeals ("BIA") is DENIED.
Petitioner Ravidath Lawrence Ragbir, a native and citizen of Trinidad and Tobago, seeks review of an October 12, 2018, decision of the BIA denying his motions to reopen and to terminate his removal proceedings. In re Ravidath Lawrence Ragbir, No. A 044 248 862 (B.I.A. Oct. 12, 2018). We assume the parties' familiarity with the underlying facts and procedural history.
The BIA denied Ragbir's motions as untimely and number barred and declined to reopen proceedings sua sponte. We find no abuse of discretion or misperception of the law. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (reviewing denial of motion to reopen for abuse of discretion); Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) (reiterating that we lack jurisdiction to review BIA's decision not to reopen sua sponte unless the BIA "misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail").
An alien seeking to reopen proceedings may file only one motion to reopen no later than 90 days after the final administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Ragbir's 2018 motion was untimely filed 11 years after his removal order and number barred because he previously moved to reopen his proceedings in 2012. While the time and number limitations may be equitably tolled, tolling is available only if an applicant acted with diligence. See Holland v. Florida, 560 U.S. 631, 649 (2010); Rashid v. Mukasey, 533 F.3d 127, 130-32 (2d Cir. 2008). It was Ragbir's burden to make this showing. Rashid, 533 F.3d at 131-32; cf. Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008) (emphasizing the "heavy burden" a movant has on a motion to reopen to show that the "proffered new evidence would likely alter the result" (internal quotation marks omitted)). The administrative record includes documents and correspondence between Ragbir's defense counsel, the Government, the district court, and the probation office addressing issues regarding loss amount and discussing whether and how loss amount should be calculated because the amount could be reduced based on payments made on the loans that formed the basis of the fraud or based on collaterally securing the loans that could be recouped by the lending institution. These documents predated his sentencing and his 2006 removal hearing, they identify the relevant issues regarding loss amount and indicate that documentation of some issues was in the possession of the lending institution and the parties in the criminal proceedings, Ragbir raised similar arguments and presented some evidence to challenge loss amount with his 2012 motion to reopen, and he did not identify any steps he took prior to 2017 to investigate or obtain additional documentation. Accordingly, the BIA did not abuse its discretion in concluding that Ragbir did not demonstrate the requisite diligence to obtain equitable tolling. See Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000); Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007). To the extent that Ragbir argues that the BIA erred by finding that his allegation of ineffective assistance of criminal defense counsel was subject to the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (1988), the argument is immaterial because these procedural requirements were mentioned only in a footnote and were not the primary basis for the BIA's denial of the motion.
Absent an exception to the time and number limitations, the only basis for reopening was the BIA's authority to reopen sua sponte as a matter of discretion. See 8 C.F.R. § 1003.2(a). We lack jurisdiction to review that "entirely discretionary" determination, Ali, 448 F.3d at 518, although we may remand in certain limited circumstances, such as where the BIA "declined to exercise its sua sponte authority because it misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail," Mahmood, 570 F.3d at 469. Ragbir does not specifically argue that this exception applies, and we find no misperception warranting remand.
In addition to requesting reopening to challenge removability, Ragbir raised constitutional arguments regarding his eligibility for a discretionary waiver under 8 U.S.C. § 1182(h), challenged his removal proceedings on double jeopardy grounds, and asserted that the immigration court lacked jurisdiction over his proceedings. The BIA declined to reach the issue of waiver because Ragbir failed to raise it previously. There is no error in that determination. See 8 C.F.R. § 1003.2(c) (requiring new, previously unavailable evidence for reopening); see also Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 122 (2d Cir. 2007) ("[W]e may consider only those issues that formed the basis for [the agency's] decision."). And even if the Court were to reach Ragbir's argument that his removal violates the Double Jeopardy Clause of the Fifth Amendment because he was already punished in a criminal prosecution, it is well settled that removal is not a criminal punishment and does not implicate the prohibition against double jeopardy. See Oliver v. INS, 517 F.2d 426, 428 (2d Cir. 1975) (double jeopardy protections do not apply in civil immigration proceedings); see also Marin-Marin v. Sessions, 852 F.3d 192, 194 (2d Cir. 2017) (rejecting due process and Eighth Amendment challenges to removal because removal is not a punishment).
Finally, Ragbir's claim that his notice to appear was insufficient under Pereira v. Sessions, 138 S. Ct. 2105 (2018), to vest jurisdiction in the immigration court is foreclosed by Banegas Gomez v. Barr, 922 F.3d 101, 112 (2d Cir. 2019), because Ragbir received notices of his hearings at which he appeared.
For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O'Hagan Wolfe
Clerk of Court