Chen v. Barr ( 2019 )

17-1825
Chen v. Barr
BIA
Nelson, IJ
A078 863 122
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
TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 30th day of August, two thousand nineteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 HUI CHEN,
14 Petitioner,
15
16 v. 17-1825
17 NAC
18 WILLIAM P. BARR,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Jeffery R.
27 Leist, Senior Litigation Counsel;
28 Kathleen Kelly Volkert, Trial
1 Attorney, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 DC.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Hui Chen, a native and citizen of the
11 People’s Republic of China, seeks review of a May 11, 2017
12 decision of the BIA affirming a November 3, 2016 decision of
13 an Immigration Judge (“IJ”) denying Chen’s motion to rescind
14 her removal order entered in absentia and reopen her removal
15 proceedings. In re Hui Chen, No. A078 863 122 (B.I.A. May
16 11, 2017), aff’g No. A078 863 122 (Immig. Ct. N.Y. City Nov.
17 3, 2016). We assume the parties’ familiarity with the
18 underlying facts and procedural history in this case.
19 We have reviewed both the IJ’s and the BIA’s opinions
20 “for the sake of completeness.” Wangchuck v. Dep’t of
21 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The only
22 ruling Chen challenges is the denial of her motion to
23 rescind. We review the denial of a motion to rescind an in
2
1 absentia removal order for abuse of discretion. See Alrefae
2 v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006).
3 The agency did not abuse its discretion in denying
4 Chen’s motion to rescind. An in absentia removal order “may
5 be rescinded only-- (i) upon a motion to reopen filed within
6 180 days after the date of the order of removal if the alien
7 demonstrates that the failure to appear was because of
8 exceptional circumstances . . ., or (ii) upon a motion to
9 reopen filed at any time if the alien demonstrates that the
10 alien did not receive notice . . . and the failure to appear
11 was through no fault of the alien.” 8 U.S.C.
12 § 1229a(b)(5)(C); see 8 C.F.R. § 1003.23(b)(4)(ii). Because
13 Chen received notice of her 2003 hearing, her motion to
14 rescind was subject to the 180-day time limit. See 8 U.S.C.
15 § 1229a(b)(5)(C); Song Jin Wu v. INS, 436 F.3d 157, 162 (2d
16 Cir. 2006). It is undisputed that Chen’s 2016 motion to
17 rescind was untimely because the IJ issued the in absentia
18 removal order more than 13 years earlier in 2003. See
19 8 U.S.C. § 1229a(b)(5)(C)(i). Chen argued that her prior
20 counsel was responsible for her failure to timely appear and
21 therefore the 180-day filing period should be tolled.
3
1 Although ineffective assistance may provide a basis for
2 equitable tolling of the filing period, see Cekic v. INS,
3 435 F.3d 167, 170 (2d Cir. 2006), to obtain equitable
4 tolling, an alien is required to demonstrate “due diligence”
5 in pursuing her claim during “both the period of time before
6 the ineffective assistance of counsel was or should have
7 been discovered and the period from that point until the
8 motion to reopen is filed,” Rashid v. Mukasey, 533 F.3d 127,
9 132 (2d Cir. 2008). The agency did not err in finding that
10 Chen failed to establish due diligence because she knew
11 about the alleged ineffective assistance when she filed her
12 first motion to rescind in 2003 and did not assert that she
13 took any action in her case for the 13 years between 2003,
14 when the IJ denied that initial motion, and 2016, when she
15 requested her immigration records so she could move to
16 rescind again. See Jian Hua Wang v. BIA, 508 F.3d 710, 715
17 (2d Cir. 2007) (placing burden on petitioner to prove due
18 diligence). Accordingly, the agency reasonably determined
19 that Chen failed to demonstrate due diligence, and that her
20 ineffective assistance claim was foreclosed as a result.
21 See Rashid, 533 F.3d at 132-33.
4
1 We do not address Chen’s challenges to the IJ’s
2 alternative bases for rejecting her ineffective assistance
3 of counsel claim. See INS v. Bagamasbad, 429 U.S. 24, 25
4 (1976) (“As a general rule courts and agencies are not
5 required to make findings on issues the decision of which is
6 unnecessary to the results they reach.”).
7 For the foregoing reasons, the petition for review is
8 DENIED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe
11 Clerk of Court
12
13
14
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