Sandoval v. Holder , 447 F. App'x 266 ( 2012 )

10-2921-ag
Sandoval v. Holder
BIA
Straus, IJ
A075 993 528
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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 9th day of January, two thousand twelve.
PRESENT:
ROGER J. MINER,
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges.
______________________________________
MARVIN OSIEL SANDOVAL,
Petitioner,
v. 10-2921-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: James A. Welcome, Law Offices of
James A. Welcome, Waterbury, CT.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Terri J. Scadron, Assistant
Director; Colin J. Tucker, Trial
Attorney, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Marvin Osiel Sandoval, a native and citizen of
Guatemala, seeks review of a June 14, 2010, order of the BIA
affirming the May 13, 2009, decision of Immigration Judge
(“IJ”) Michael W. Straus denying his motion to rescind an in
absentia order of removal. In re Marvin Osiel Sandoval, No.
A075 993 528 (B.I.A. June 14, 2010), aff’g No. A075 993 528
(Immigr. Ct. Hartford, CT. May 13, 2009). We assume the
parties’ familiarity with the underlying facts and
procedural history of the case.
We have reviewed the agency’s denial of Sandoval’s
motion to rescind for abuse of discretion. See Alrefae v.
Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). Because
Sandoval’s motion to rescind based on his claim that his
failure to appear was due to exceptional circumstances was
not filed within 180 days of his removal order, he was
required to establish that the time limitation on motions to
rescind should be equitably tolled. See 8 U.S.C.
§ 1229a(b)(5)(C)(i), (c)(7)(C)(iii)(2006); Cekic v. INS, 435
2
F.3d 167, 170 (2d Cir. 2006). The agency reasonably
rejected Sandoval’s claim for equitable tolling because he
did not present any evidence to establish that he
“‘exercised due diligence in pursuing [his] case’” during
the period he sought to toll. Cekic, 435 F.3d at 170
(quoting Iavorski v. INS, 232 F.3d 124, 135 (2d Cir. 2000)).
Thus the agency did not abuse its discretion in denying
Sandoval’s motion to reopen as untimely.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3