Lewis v. Lynch ( 2016 )

15-2133
Lewis v. Lynch
BIA
Cheng, IJ
A095 989 875
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
19th day of October , two thousand sixteen.
PRESENT:
RALPH K. WINTER,
ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
WAYNE LEWIS,
Petitioner,
v. 15-2133
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Audrey A. Thomas, Rosedale, New
York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; John W.
Blakeley, Assistant Director; W.
Daniel Shieh, 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 Wayne Lewis, a native and citizen of Trinidad
and Tobago, seeks review of a June 3, 2015, decision of the BIA
affirming a September 9, 2014, decision of an Immigration Judge
(“IJ”) denying Lewis’s motion to rescind his removal order
entered in absentia. In re Wayne Lewis, No. A095 989 875
(B.I.A. June 3, 2015), aff’g No. A095 989 875 (Immig. Ct. N.Y.
City Sept. 9, 2014). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
We have reviewed the IJ’s decision as supplemented by the
BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
We review the agency’s denial of a motion to rescind for abuse
of discretion. See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d
Cir. 2006). An order of removal entered in absentia “may be
rescinded only--(i) upon a motion to reopen filed within 180
days after the date of the order of removal if the alien
demonstrates that the failure to appear was because of
exceptional circumstances . . ., or (ii) upon a motion to reopen
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filed at any time if the alien demonstrates that the alien did
not receive notice . . . and the failure to appear was through
no fault of the alien.” 8 U.S.C. § 1229a(b)(5)(C). Because
Lewis’s attorney of record had notice of his October 2010
hearing, his motion to rescind the IJ’s removal order entered
in absentia at that hearing was subject to the 180-day time
limit, and he was required to demonstrate that exceptional
circumstances excused his failure to appear. See 8 U.S.C.
§ 1229a(b)(5)(C); Song Jin Wu v. INS, 436 F.3d 157, 162 (2d Cir.
2006).
It is undisputed that Lewis’s 2014 motion to rescind was
untimely filed more than three years after his 2010 removal
order. See 8 U.S.C. § 1229a(b)(5)(C)(i). Equitable tolling
of the time to file may be available for claims of ineffective
assistance of counsel. See Cekic v. INS, 435 F.3d 167, 170 (2d
Cir. 2006). The agency did not err in finding no basis for
tolling.
In order to warrant tolling, an alien is required to
demonstrate “due diligence” in pursuing his claim during “both
the period of time before the ineffective assistance of counsel
was or should have been discovered and the period from that point
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until the motion to reopen is filed.” Rashid v. Mukasey, 533
F.3d 127, 132 (2d Cir. 2008); see also Cekic, 435 F.3d at 170.
Lewis failed to demonstrate due diligence. He did not assert
that he took any action in his case during the more than three
years that passed between the IJ ordering him removed in
absentia in October 2010 and his filing of a motion to rescind
in April 2014. See Jian Hua Wang v. BIA, 508 F.3d 710, 715-16
(2d Cir. 2007). Lewis’s separate claim that he failed to appear
due to illness provides no ground for equitable tolling.
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. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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