         11-3404
         Ramsood v. Holder
                                                                                         BIA
                                                                                 A029 509 119
                              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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 21st day of August, two thousand twelve.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                BARRINGTON D. PARKER,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       OMADQT RAMSOOD, AKA OMADAT RAMSOOD,
14                Petitioner,
15
16                           v.                                  11-3404
17                                                               NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Naresh M. Gehi, Forest Hills, New
24                                      York.
25
26       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
27                                      Attorney General; Linda S. Wernery,
28                                      Assistant Director; Janice K.
29                                      Redfern, Senior Litigation Counsel,
30                                      Office of Immigration Litigation,
31                                      United States Department of Justice,
32                                      Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DENIED.

 5       Petitioner Omadqt Ramsood, a native and citizen of

 6   Guyana, seeks review of an August 4, 2011, order of the BIA

 7   denying his motion to reopen.       In re Omadqt Ramsood a.k.a.

 8   Omadat Ramsood, No. A029 509 119 (B.I.A. Aug. 4, 2011).       We

 9   assume the parties’ familiarity with the underlying facts

10   and procedural history in this case.

11       We have reviewed Ramsood’s motion to reopen/rescind for

12   abuse of discretion.    See Alrefae v. Chertoff, 471 F.3d 353,

13   357 (2d Cir. 2006).    Ramsood argues that his in absentia

14   order of exclusion1 should be rescinded due to the

15   ineffective assistance of his prior counsel.      Under the

16   former Immigration and Nationality Act governing in absentia

17   exclusion proceedings, with respect to “[a]ny alien [who]

18   has been given a reasonable opportunity to be present at

         1
          Ramsood’s argument that he should be in deportation
     rather than exclusion proceedings is erroneous because,
     although he initially entered on a visitor visa, he departed
     and upon return was paroled into the United States. See
     Cruz-Miguel v. Holder, 650 F.3d 189, 196-97 (2d Cir. 2011)
     (an alien paroled into the U.S. for the purpose of an
     exclusion proceeding has not been properly admitted to the
     U.S. and has thus not effectuated an “entry”).
                                     2
 1   a[n] [exclusion] proceeding . . . and without reasonable

 2   cause fails or refuses to attend[,] . . . the special

 3   inquiry officer may proceed to a determination in like

 4   manner as if the alien were present.”      8 U.S.C. § 1252(b)

 5   (1992).   An alien ordered excluded in absentia may have the

 6   order rescinded or obtain reopening if he demonstrates

 7   “reasonable cause” for failing to appear, supported by

 8   affidavits or other evidence.       See 8 C.F.R.

 9   § 1003.23(b)(4)(iii)(B).

10       Ramsood argues that his alleged lack of notice of the

11   hearing and the ineffective assistance of his prior counsel

12   constitute “reasonable cause” for his failure to appear.

13   Lack of notice of a hearing may constitute “reasonable

14   cause” for failure to appear at a hearing.         Cf. 8 C.F.R.

15   § 1003.23(b)(4)(iii)(A) (permitting rescission of an in

16   absentia deportation order at any time if the alien did not

17   receive notice of his hearing).      To the extent that Ramsood

18   argues that he did not receive the initial notice placing

19   him in proceedings because only his attorney was notified,

20   the record shows that Ramsood was personally served with

21   that notice.   To the extent he asserts that he did not

22   receive notice of the date of the hearing, the record shows


                                     3
 1   that the notice was sent to him at the address he provided.

 2       Ramsood also argues that his failure to appear was due

 3   to the ineffective assistance of his counsel who told him

 4   that he need not attend the hearing and who failed to notify

 5   him of the consequences of his failure to attend.   The BIA

 6   did not abuse its discretion in declining to rescind the in

 7   absentia order and reopen proceedings on the ground that

 8   Ramsood failed to act with due diligence.   Although Ramsood

 9   was in exclusion proceedings, and thus the usual 90-day time

10   limit on motions to reopen did not apply, see 8 C.F.R.

11   § 1003.23(b)(4)(iii)(B); In re N-B-, 22 I. & N. 590, 591-92

12   (BIA 1999), the BIA was not foreclosed from denying the

13   motion for failure to exercise due diligence because the

14   agency’s decision regarding whether to rescind an in

15   absentia exclusion order pursuant to 8 C.F.R.

16   § 1003.23(b)(4)(iii)(B) is discretionary. Accordingly, the

17   requirement that aliens exercise due diligence in the

18   equitable tolling context, see Iavorski v. INS, 232 F.3d

19   124, 134 (2d Cir. 2000), applies with equal force in this

20   situation and the agency’s finding that Ramsood failed to

21   exercise due diligence in rescinding his in absentia

22   exclusion order was not an abuse of discretion because


                                  4
 1   Ramsood waited 19 years to file a motion to reopen, had

 2   several pending petitions before the United States

 3   Citizenship and Immigration Services (“USCIS”), and should

 4   have been aware of the consequences of the in absentia

 5   order.    See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.

 6   2007) (providing that the “petitioner bears the burden of

 7   proving that he has exercised due diligence” and citing

 8   several cases in which we have held that “a petitioner who

 9   waits two years or longer to take steps to reopen a

10   proceeding has failed to demonstrate due diligence”).

11       Finally, to the extent that Ramsood argues that the

12   agency was required to reopen to adjudicate his I-130 or

13   continue proceedings to allow adjudication by the USCIS, he

14   challenges the BIA’s decision whether to exercise its sua

15   sponte authority.     We lack jurisdiction to review that

16   decision.     Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.

17   2006).

18       For the foregoing reasons, the petition for review is

19   DENIED.     As we have completed our review, any stay of

20   removal that the Court previously granted in this petition

21   is VACATED, and any pending motion for a stay of removal in

22   this petition is DISMISSED as moot. Any pending request for

23   oral argument in this petition is DENIED in accordance with
                                     5
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5




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