Kabba v. Lynch , 637 F. App'x 662 ( 2016 )

14-3065
Kabba v. Lynch
BIA
Sichel, IJ
A073 552 586
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.
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
9th day of February, two thousand sixteen.
PRESENT:
RICHARD C. WESLEY,
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
ALHAGIE KABBA, AKA ISSA DIAKHITE,
Petitioner,
v. 14-3065
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Michael P. DiRaimondo, Melville, New
York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Ernesto
H. Molina, Jr., Assistant Director;
Andrew N. O’Malley, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
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.
Petitioner Alhagie Kabba, who claims to be a native and
citizen of Mauritania, seeks review of a July 25, 2014, decision
of the BIA affirming a December 16, 2013, decision of an
Immigration Judge (“IJ”) denying Kabba’s motion to rescind his
in absentia deportation order and reopen his proceedings. In
re Alhagie Kabba, No. A073 552 586 (B.I.A. July 25, 2014), aff’g
No. A073 552 586 (Immig. Ct. N.Y. City Dec. 16, 2013). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
As a preliminary matter, motions to reopen deportation
proceedings in which an alien was ordered deported in absentia
are governed by different rules depending on whether the movant
seeks to rescind the in absentia deportation order or present
new evidence of his eligibility for relief. See Song Jin Wu
v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-, 22 I. &
N. Dec. 349, 353-55 (B.I.A. 1998) (en banc). When, as here,
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an alien files a motion that seeks both rescission of an in
absentia deportation order as well as reopening of deportation
proceedings based on new evidence, we treat the motion as
comprising distinct motions to rescind and to reopen. See
Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); see also
Maghradze v. Gonzales, 462 F.3d 150, 152 n.1 (2d Cir. 2006).
Under the circumstances of this case, we consider both the
IJ’s and the BIA’s opinions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). We review the denial of a motion to rescind an in
absentia deportation order under the same abuse of discretion
standard applicable to motions to reopen. See Alrefae, 471
F.3d at 357.
A. Motion to Rescind
“An order entered in absentia in deportation proceedings
may be rescinded only upon a motion to reopen filed: (1) Within
180 days after the date of the order of deportation if the alien
demonstrates that the failure to appear was because of
exceptional circumstances beyond the control of the alien
(e.g., serious illness of the alien or serious illness or death
of an immediate relative of the alien, but not including less
compelling circumstances); or (2) At any time if the alien
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demonstrates that he or she did not receive notice . . ..”
8 C.F.R. § 1003.23(b)(4)(iii)(A). Kabba argues that, while he
was personally served notice of his hearing, he had no actual
notice because he could not read or write English. As the BIA
noted, however, there is no requirement that notices to appear
be provided in an alien’s native language. See Lopes v.
Gonzales, 468 F.3d 81, 85 (2d Cir. 2006). Because Kabba
received notice of his hearing, his motion to rescind was
subject to the 180-day time limit. See 8 C.F.R.
§ 1003.23(b)(4)(iii)(A).
It is undisputed that Kabba’s 2013 motion to rescind was
untimely filed because the IJ’s in absentia deportation order
was issued more than 17 years earlier in 1996. See 8 C.F.R.
§ 1003.23(b)(4)(iii)(A)(1). Kabba argues that his
interpreter’s failure to tell him that his hearing notice
provided the date and time of a hearing was akin to ineffective
assistance of counsel, which qualifies as an “exceptional
circumstance” to toll the time period for filing his motion.
Even assuming that his interpreter’s actions qualified as
“exceptional circumstances”, Kabba was required to demonstrate
“due diligence” in pursuing his claim during “both the period
of time before the ineffective assistance of counsel was or
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should have been discovered and the period from that point until
the motion to reopen is filed.” Rashid v. Mukasey, 533 F.3d
127, 132 (2d Cir. 2008); see also Cekic v. INS, 435 F.3d 167,
170 (2d Cir. 2006) (requiring an alien to demonstrate due
diligence independent from the requirement of demonstrating
ineffective assistance of former counsel). We have noted that,
in considering whether a petitioner exercised due diligence,
“there is no period of time which we can say is per se
unreasonable, and, therefore, disqualifies a petitioner from
equitable tolling–or, for that matter, any period of time that
is per se reasonable.” Jian Hua Wang v. BIA, 508 F.3d 710, 715
(2d Cir. 2007).
The agency reasonably found that Kabba failed to
demonstrate that he exercised due diligence. He did not take
any action in his deportation proceedings for more than 16 years
from receipt of his hearing notice in 1996 until 2012. See id.
(providing that the “petitioner bears the burden of proving that
he has exercised due diligence” and citing several cases in
which the Court held that “a petitioner who waits two years or
longer to take steps to reopen a proceeding ha[d] failed to
demonstrate due diligence”). Further, we will not consider in
the first instance Kabba’s assertion that he had no knowledge
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of the in absentia deportation order until 2012. See Lin Zhong
v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007). We
note, however, that he was required to show diligence from the
time the ineffective assistance “should have been[] discovered
by a reasonable person in the situation,” Jian Hua Wang, 508
F.3d at 715, a time that commenced well before 2012.
B. Motion to Reopen
The BIA also did not abuse its discretion in denying Kabba’s
motion to reopen as untimely. Aliens seeking to reopen
proceedings may file a motion to reopen no later than 90 days
after the date on which the final administrative decision was
rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.23(b)(1). First, there was no dispute that Kabba’s 2013
motion was untimely filed more than 17 years after his 1996
deportation order. See 8 U.S.C. § 1229a(c)(7)(C)(i).
The time period for filing a motion to reopen may be tolled
by the ineffective assistance of counsel. See Rashid, 533 F.3d
at 130. As the BIA concluded, however, Kabba’s ineffective
assistance claim as to his former attorney who filed his first
motion to reopen in 2012 was not relevant to the tolling analysis
as the claim had no bearing on the time period from 1996 until
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2012, (which, as discussed above, had not otherwise been
tolled).
Although a motion asking the agency to exercise its
authority to reopen sua sponte may be granted outside the 90-day
period for moving to reopen, see 8 C.F.R. § 1003.23(b)(1), we
lack jurisdiction to review a decision declining to reopen sua
sponte, Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
Kabba has not asserted that the agency misperceived the law in
declining to reopen sua sponte, Mahmood v. Holder, 570 F.3d 466,
469 (2d Cir. 2009), and the record does not support Kabba’s
contention that the IJ’s discretionary decision was tainted by
his former attorney’s false statements in his first motion to
reopen given her explicit reliance on Kabba’s false statements
made independent of his former attorney. Accordingly, we are
without jurisdiction to consider the denial of his motion to
this extent. See id.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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