Olivia Renderos v. Garland ( 2021 )

20-690
Olivia Renderos v. Garland
BIA
Vomacka, IJ
A206 249 706
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 27th day of December, two thousand twenty-
5 one.
6
7 PRESENT:
8 DENNIS JACOBS,
9 RAYMOND J. LOHIER, JR.,
10 JOSEPH F. BIANCO,
11 Circuit Judges.
12 _____________________________________
13
14 LEANA PATRICIA OLIVIA RENDEROS,
15 Petitioner,
16
17 v. 20-690
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Leana Patricia Olivia Renderos,
25 pro se, Hastings, NE.
26
27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
28 Attorney General; Jessica A.
1 Dawgert, Senior Litigation
2 Counsel; Lori B. Warlick, Trial
3 Attorney, Office of Immigration
4 Litigation, United States
5 Department of Justice, Washington,
6 DC.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Leana Patricia Olivia Renderos, a native and
13 citizen of Honduras, seeks review of a January 23, 2020
14 decision of the BIA affirming a decision of an Immigration
15 Judge (“IJ”), which denied Olivia Renderos’s motion to
16 rescind her in absentia order of removal. In re Leana
17 Patricia Olivia Renderos, No. A206 249 706 (B.I.A. Jan. 23,
18 2020), aff’g No. A206 249 706 (Immig. Ct. N.Y. City Apr. 23,
19 2018). We assume the parties’ familiarity with the
20 underlying facts and procedural history.
21 We have reviewed both the IJ’s and the BIA’s opinions.
22 See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528
23 (2d Cir. 2006). We review the denial of a motion to rescind
24 an in absentia removal order for abuse of discretion. See
2
1 Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006).
2 The agency did not abuse its discretion in denying Olivia
3 Renderos’s motion to rescind. An in absentia removal order
4 “may be rescinded only . . . (i) upon a motion to reopen filed
5 within 180 days after the date of the order of removal if the
6 [movant] demonstrates that the failure to appear was because
7 of exceptional circumstances,” or “(ii) upon a motion to
8 reopen filed at any time if the [movant] demonstrates that
9 [she] did not receive notice in accordance with paragraph (1)
10 or (2) of section 1229(a).” 8 U.S.C. § 1229a(b)(5)(C);
11 8 C.F.R. § 1003.23(b)(4)(ii); see Alrefae, 471 F.3d at 358.
12 The agency did not abuse its discretion in finding that
13 Olivia Renderos constructively received notice of her 2014
14 hearing because a hearing notice was sent to her address of
15 record, and she failed to provide a correct new address to
16 the immigration court or any other immigration authority.
17 See Maghradze v. Gonzales, 462 F.3d 150, 153 (2d Cir. 2006)
18 (“[A]liens who fail to provide a written update of a change
19 of address are deemed to have constructively received notice
20 provided in accordance with the requirements of 8 U.S.C.
21 § 1229(a).”). Because Olivia Renderos constructively
3
1 received notice of her 2014 hearing, her motion to rescind
2 was subject to the 180-day time limit. See 8 U.S.C.
3 § 1229a(b)(5)(C); Song Jin Wu v. INS, 436 F.3d 157, 162 (2d
4 Cir. 2006).
5 Olivia Renderos’s March 2018 motion to rescind was
6 untimely because the IJ issued the in absentia removal order
7 more than 3 years earlier, in June 2014. See 8 U.S.C.
8 § 1229a(b)(5)(C)(i). She argues, however, that the 180-day
9 filing period should have been equitably tolled. We
10 disagree.
11 “Equitable tolling requires a party to pass with
12 reasonable diligence though the period it seeks to have
13 tolled.” Iavorski v. U.S. INS, 232 F.3d 124, 134 (2d Cir.
14 2000) (internal quotation marks and brackets omitted). The
15 agency reasonably found that Olivia Renderos failed to
16 establish due diligence between June 2014 when she was ordered
17 removed in absentia and March 2018 when she filed her motion
18 to rescind that order. Aside from consulting unnamed
19 attorneys in 2014 and 2015, Olivia Renderos did not allege
20 that she took any immediate action to pursue rescission but
21 instead waited until November 2017 to hire counsel to file
4
1 her motion to rescind. See Jian Hua Wang v. BIA, 508 F.3d
2 710, 715 (2d Cir. 2007) (placing burden on petitioner to prove
3 diligence and citing several cases in which this Court has
4 held that “a petitioner who waits two years or longer to take
5 steps to reopen . . . has failed to demonstrate due
6 diligence”). Accordingly, Renderos’s untimely filing was not
7 excused, and we need not reach the agency’s alternative
8 determination that she failed to establish exceptional
9 circumstances. See 8 U.S.C. § 1229a(b)(5)(C); INS v.
10 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts
11 and agencies are not required to make findings on issues the
12 decision of which is unnecessary to the results they reach.”).
13 For the foregoing reasons, the petition for review is
14 DENIED. All pending motions and applications are DENIED and
15 stays VACATED.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe,
18 Clerk of Court
5