A Guyanese man illegally in New York, who contended that he would be tortured if he was returned here, has had his petition for a review of his case denied by the United States Court of Appeals, second Circuit.
Jhageshwar Rupa, also known as Ramesh Nassiah, had had an application for the granting of asylum denied by the US Board of Immigration Appeals (BIA), according to Leagle.Com. He then filed a petition for a review of the decision but in a February 9, 2011 decision, the US Appeals Court denied it and Rupa now faces deportation.
Rupa, had sought a review of a May 21, 2009, decision of the BIA, affirming the September 24, 2007, decision of Immigration Judge (IJ) Philip J. Montante, Jr., which found that Rupa waived the opportunity to apply for asylum, withholding of removal, and relief under the UN Convention Against Torture (“CAT”). This matter had been before the immigration board in Buffalo, New Jersey.
The Appeals court reviewed both the Immigration Judge’s decision and the BIA’s later affirmation of his ruling.
The Appeals court ruled that as an initial matter, Rupa had abandoned any challenge to the IJ’s finding that he waived his application for asylum and withholding of removal. Nor did Rupa challenge the IJ’s decision with regard to his removability and request for voluntary departure. Therefore only Rupa’s challenge to the IJ’s finding that Rupa waived the opportunity to apply for CAT relief was considered by the Appeals’ Court.
The Appeals Court found that the BIA did not abuse its discretion in finding that Rupa’s request to apply for CAT relief was untimely. IJs have broad discretion in calendar management and may set a filing deadline for an application for relief, the Appeals Court ruled.
“Rupa did not indicate, either during his interview with an Immigration and Customs Enforcement (“ICE”) agent or at his initial hearing before the IJ, that he feared any harm, much less torture, if he were compelled to return to Guyana. Moreover, at his initial hearing, after his application for cancellation of removal was denied, and the IJ asked whether Rupa was seeking any other relief, Rupa replied, `Not at this time.’ The IJ then adjourned proceedings, setting a date five months later for a hearing on whether Rupa was removable and whether he should be accorded voluntary departure, the only issues that had been raised at that time”, the Appeals Court explained, according to Leagle.com.
The Appeals Court further found that during that five-month interval, Rupa had every opportunity to apply for additional relief or to alert the IJ that he would be raising additional issues at the hearing. “He did not do so. Nor did he advise the IJ at the start of the hearing, when the IJ repeated that the hearing would address the legal issue of removability and the question of voluntary departure, that he had any other issues to raise.
“Only at the end of the hearing, after Rupa testified about owing money to smugglers, did Rupa’s attorney ask for a `credible fear hearing.’ Only after government counsel pointed out that such an interview was not procedurally appropriate and that an application for asylum would be untimely in any event did Rupa’s counsel mention the possibility of CAT relief. He did not seek a continuance for the purpose of making a further application for relief”, the Appeals Court said.
The Appeals Court found that the IJ neither abused his discretion in finding that Rupa’s request to file such an application at the end of his merits hearing was untimely nor did it deny him a full and fair opportunity to submit an application for relief.
“The IJ had offered Rupa every opportunity to apply for any relief for which he might have been eligible, had granted a continuance to permit Rupa ample time to prepare for a hearing and explore any additional avenues of relief, and gave explicit notice, both at the time the hearing was scheduled and at its opening, as to the issues to be addressed. Only at the end of the hearing, after Rupa had testified to the manner of his illegal entry, and after abandoning his untimely suggestion of a possible asylum claim, did Rupa’s counsel argue that `it’s not too late to at least… make the CAT claim.’ Even then, after the IJ pointed out that Rupa had not established any basis for such relief, Rupa made no effort to explain how he could qualify for such relief, nor did he seek a continuance to prepare an application or present additional evidence or argument”, the Appeals Court ruled.
Further, the Appeals Court found that the IJ reasonably determined that Rupa’s proffered excuse, that his attorney had discovered Rupa’s claimed fear only days before the merits hearing, did not justify his failure to file an application for CAT relief at some point prior to the conclusion of that hearing.
Furthermore, as the IJ had observed, since Rupa had not previously mentioned his claimed fear of persecution or torture, either during his extensive interview with an ICE agent or at his initial hearing before the IJ, there appeared no credible basis for a claim under the Convention Against Torture.
“The only fear Rupa expressed at the hearing was a vague fear that if he did not repay the smugglers, and he returned to Guyana, they would look for him and `kill me or something.’ Yet he also expressed a similar fear that the smugglers would also seek him out in Schenectady (NY) if he remained in the United States.”
As a result, the Appeals Court ruled that the IJ reasonably found that Rupa did not demonstrate either good cause for his failure to file an application in a timely manner for CAT relief or substantial prejudice. “The IJ did not abuse his discretion in finding that Rupa’s request to apply for CAT relief was untimely and that any such application was waived”, the Appeals Court said. “For the foregoing reasons, the petition for review is denied. As we have completed our review, any stay of removal that the Court previously granted in this petition is vacated, and any pending motion for a stay of removal in this petition is dismissed as moot”, the court declared.
Stephen L. Rockmacher, Schenectady, New York, appeared for Rupa. The Appeals panel comprised Judges John M Walker, Robert D Sack and Gerald E Lynch.
