          United States Court of Appeals
                       For the First Circuit

Nos. 13-1893
     14-1285

                            MENG HUA WAN,

                             Petitioner,

                                 v.

               ERIC H. HOLDER, JR., ATTORNEY GENERAL,

                             Respondent.


               PETITIONS FOR REVIEW OF AN ORDER OF THE

                    BOARD OF IMMIGRATION APPEALS



                               Before

                    Torruella, Selya and Howard,
                           Circuit Judges.



     Wei Jia and Law Office of Wei Jia on brief for petitioner.
     Stuart F. Delery, Assistant Attorney General, Civil Division,
Kelly Walls, Senior Litigation Counsel, and Anna Nelson, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.



                          January 20, 2015
           SELYA, Circuit Judge. Petitioner Meng Hua Wan, a Chinese

national, seeks judicial review of an order of the Board of

Immigration Appeals (BIA) affirming a decision of an immigration

judge   (IJ)   refusing    to   reopen    removal   proceedings   after   the

petitioner was ordered removed in absentia.          Concluding, as we do,

that the agency did not abuse its considerable discretion, we deny

relief.

           The material facts are easily summarized. The petitioner

entered the United States in June of 1997 on a visitor's visa that

expired six months later.        He overstayed and accepted employment

without proper authorization.            Approximately three years later,

federal authorities instituted removal proceedings.           See 8 U.S.C.

§   1227(a)(1)(B),        (a)(1)(C)(i)      (formerly    §   237(a)(1)(B),

(a)(1)(C)(i)).

           At that time, the petitioner gave the Immigration and

Naturalization Service (INS) a mailing address — "80 Farrington St

#3, Quincy, MA 02117" — that contained an inaccurate zip code. The

petitioner was served personally with, and signed for, a notice to

appear (NTA) that left open the date of appearance.                 The NTA

reflected the incorrect zip code that the petitioner had provided

but warned the petitioner that he was required to report any change

in his current mailing address to the INS; that notices of hearings

would be mailed to that address; and that failure to attend a

hearing could result in an in absentia order of removal.            Despite


                                     -2-
these warnings, the petitioner never advised the INS about the

inaccurate zip code.

          In due course, the immigration court scheduled a removal

hearing for March 20, 2001, and sent notice to the petitioner at

his mailing address, using the correct zip code (02170).       The

hearing notice warned once again that if the petitioner's address

was incorrectly listed on the NTA, he must furnish the immigration

court with the correct address within five days.      See 8 C.F.R.

§ 1003.15(d)(1).   It further cautioned that hearing notices would

be sent to the most recent address provided by the petitioner and

would be deemed sufficient notice for future proceedings.      The

petitioner concedes that he received this hearing notice.     Once

again, the petitioner made no effort to correct the zip code listed

on the NTA.

          The petitioner did not show up for the scheduled hearing.

The IJ gave the petitioner a second bite at the apple: she

continued the hearing to May 1, 2001, and made sure that a notice

of the new hearing date was sent to the petitioner.    This notice

was mailed to the address listed on the NTA.

          When the petitioner again failed to appear, the IJ

entered an order of removal in absentia.    A copy of the removal

order and instructions for filing a motion to reopen were mailed to

the petitioner using the correct "02170" zip code.




                                -3-
          Some eleven years later, the petitioner became embroiled

in criminal proceedings involving a false green card.                This

contretemps brought his immigration status to the fore and, in

January of 2013, he moved to reopen his removal proceedings.         The

petitioner conceded that he had received notice of the March 20

hearing, but blamed his failure to appear on ineffective assistance

of counsel.    He explained that, upon receiving the initial hearing

notice, he retained a California attorney named Chen who assured

him that he (Chen) would "settle" the problem.         Chen supposedly

advised the petitioner that he need not attend the hearing.           The

petitioner never heard from Chen again, and his efforts to contact

Chen proved unavailing.

          The IJ denied the motion to reopen as untimely.             She

noted that notice of both the removal proceedings and the entry of

the removal order was properly served by mail at the correct

address, but the petitioner nevertheless dallied more than eleven

years before seeking to reopen the matter. The IJ also declined to

order reopening sua sponte, finding that the petitioner had neither

exhibited diligent efforts nor set forth sufficient detail to make

out a colorable claim for withholding of removal.

          The petitioner unsuccessfully appealed to the BIA.          His

attempt   to   secure   judicial   review   was   interrupted   by    the

government's unopposed motion to remand the case to the BIA for

consideration of whether the petitioner qualified for relief based


                                   -4-
on   changed     circumstances    in     his    homeland.        See    8   C.F.R.

§ 1003.23(b)(4)(i).       We granted the government's motion (albeit

retaining jurisdiction).         On remand, the BIA concluded that the

petitioner had failed to present evidence demonstrating a material

change in China's country conditions since he was ordered removed

in 2001.       Rather, the only changes were in the petitioner's

personal circumstances in the United States, and such changes are

not a valid basis for an exception to the temporal limitation for

filing a motion to reopen.        See Ming Chen v. Holder, 722 F.3d 63,

66 (1st Cir. 2013).      A new petition for judicial review followed.1

              In the immigration context, this court ordinarily reviews

the decision of the BIA rather than that of the IJ.                    See Jianli

Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012).                 To the extent

that the BIA adopts portions of the IJ's findings while adding its

own gloss, however, we treat the two decisions as a unit.                   See id.

We   review    denials   of   motions    to    reopen   solely   for    abuse   of

discretion.      See INS v. Doherty, 502 U.S. 314, 323 (1992); Xue Su

Wang v. Holder, 750 F.3d 87, 89 (1st Cir. 2014).                  The agency's

resolution of such a motion will stand unless that resolution rests

on a material error of law or a manifestly arbitrary exercise of

judgment.      See Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir.

2005).


      1
       We have consolidated this petition with the original
petition for judicial review. For present purposes, we need not
distinguish between the two petitions.

                                        -5-
            Motions to reopen removal proceedings are disfavored

because    such   motions    are    "contrary    to   the   compelling    public

interests    in    finality        and   the    expeditious    processing     of

proceedings."     Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st

Cir. 2007) (internal quotation marks omitted).                Such motions are

generally   limited   both    numerically       and   temporally.     A    party

ordinarily may file only one motion to reopen, and that motion must

be filed within 90 days of the date of entry of the final

administrative order.       See 8 C.F.R. § 1003.23(b)(1).

            To be sure, this strict regime admits of certain narrowly

circumscribed exceptions.           Pertinently, an in absentia order of

removal may be reopened if the alien can show either that he did

not receive proper notice of the removal proceedings or that his

failure to appear was due to exceptional circumstances beyond his

control.    See 8 C.F.R. § 1003.23(b)(4)(iii)(A); Kozak v. Gonzáles,

502 F.3d 34, 35 (1st Cir. 2007).          There is a further exception that

comes into play when a petitioner can show materially changed

country conditions.         See 8 C.F.R. § 1003.23(b)(4)(i).              When a

motion to reopen is based on lack of proper notice or changed

country circumstances, it may be filed at any time.                      See id.

§ 1003.23(b)(4)(i), (b)(4)(iii)(A)(2).            However, when a motion to

reopen is based on exceptional circumstances, it must be proffered

within 180 days of the entry of the removal order.                       See id.

§ 1003.23(b)(4)(iii)(A)(1).


                                         -6-
            In his first petition for review, the petitioner arguably

alleged that changed country conditions warranted an extension of

the filing deadline for motions to reopen.            In his second petition

for review, the petitioner alleged that he did not have proper

notice of his removal hearing, that the IJ abused her discretion in

failing to apply equitable tolling, and that the BIA engaged in

impermissible factfinding. Before tackling any of these arguments,

though, we must confront a threshold barrier: the government's

contention that this court lacks jurisdiction over the last three

claims of error because the petitioner did not raise them below

and, thus, did not exhaust his administrative remedies.

            We   start   with   a   brief   reprise     of     the    exhaustion

requirement. For this court to have jurisdiction to review a final

order of removal, the alien must have "exhausted all administrative

remedies    available    to   the   alien   as   of    right."        8   U.S.C.

§ 1252(d)(1).     The purpose of this requirement is to prevent the

courts from usurping the agency's functions and to "allow[] the

agency     the   first   opportunity   to   correct      its    own    bevues."

Mazariegos-Paiz v. Holder, 734 F.3d 57, 63 (1st Cir. 2013).

            Our exercise of jurisdiction over the first two contested

claims of error — lack of notice and equitable tolling — appears to

be appropriate.     Whether or not raised by the petitioner, the BIA

addressed the notice issue.          Similarly, it concluded that the

petitioner failed to show due diligence — a prerequisite to the


                                     -7-
application of the equitable tolling doctrine.             See Neves v.

Holder,   613   F.3d   30,   36   (1st    Cir.   2010).   The   exhaustion

requirement is satisfied where, as here, the agency chooses to

address the merits of a particular issue, regardless of whether the

alien raised that issue.      See Mazariegos-Paiz, 734 F.3d at 63.

           While we have jurisdiction to review these two claims of

error, the same does not hold true for the petitioner's claim that

the BIA engaged in impermissible factfinding.             This claim is

directed to the BIA's actions rather than to anything that happened

before the IJ, so it could only have been raised below through the

filing of a motion for reconsideration.

           This court has not yet had occasion to decide whether a

claim asserting that the BIA engaged in impermissible factfinding

must be raised on a motion for reconsideration in order to satisfy

the exhaustion requirement.       The time has come for us to grapple

with this question.

           In our view, we lack jurisdiction to hear and determine

the petitioner's claim that the BIA engaged in impermissible

factfinding.    That claim has never been heard by the BIA, and the

core purpose of the exhaustion requirement is frustrated when, as

in this instance, the BIA's decision gives rise to a new issue and

the alien fails to use an available and effective procedure for

bringing the issue to the agency's attention.




                                    -8-
            In reaching this conclusion, we do not write on a

pristine page.     The Fifth Circuit has held such a claim to be

unexhausted, reasoning that a motion for reconsideration "is an

available and adequate mechanism for the petitioner to argue, and

the BIA to correct, any errors that arise in a BIA decision."

Omari v. Holder, 562 F.3d 314, 320 (5th Cir. 2009).        The Tenth

Circuit has sized up the situation the same way.    See Sidabutar v.

Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007).       We join these

courts and hold that when an alien complains of impermissible

factfinding by the BIA, that claim is unexhausted unless and until

the alien files a timely motion asking the BIA to reconsider its

actions.     Consequently, we lack jurisdiction to entertain the

petitioner's claim of factfinding error.

            We now turn to the merits of the claims that come within

our jurisdictional ken.    To begin, the petitioner asserts that the

IJ should have rescinded the in absentia removal order because he

did not receive notice of the May 1 hearing.        That notice, he

laments, was sent to an address that contained the wrong zip code.

            The petitioner's argument is deeply flawed.   He concedes

that he received notice of the original removal hearing (March 20,

2001).     He does not suggest that it would have been improper for

the IJ to enter an in absentia removal order when he boycotted that

hearing.     See 8 U.S.C. § 1229a(b)(5)(A).   The IJ's precautionary




                                 -9-
decision    to   schedule   a   second    hearing   did   not   excuse   the

petitioner's earlier absence.

            In addition, the petitioner cannot escape the fact that

any error in the mailing address used by the immigration court was

his own contrivance.        It was the petitioner who furnished the

inaccurate zip code to the INS and who failed (despite repeated

warnings) to correct that address when it was listed on the NTA.

It rings hollow for the petitioner to assail the immigration court

for mailing the notice to him at the very address that he had

specified. This is especially so since notification of the outcome

of the May 1 hearing — an in absentia order of removal — was

contemporaneously sent to the petitioner at his correct mailing

address.

            Viewed against this backdrop, we discern no abuse of

discretion in the IJ's determination that the petitioner was not

entitled to an exception to the filing deadline due to lack of

notice.    See Xue Su Wang, 750 F.3d at 90.

            Next, the petitioner challenges the IJ's failure to

permit late reopening based on equitable tolling. As a preliminary

matter, we note that it is uncertain whether the equitable tolling

doctrine applies at all in the immigration context.                See id.

(leaving question open). We need not attempt to clarify this point

today: even if equitable tolling applies, the petitioner cannot

meet its prerequisites.


                                   -10-
             The equitable tolling doctrine is always to be used

sparingly.        See Irwin v. Dep't of Vets. Affairs, 498 U.S. 89, 96

(1990);    Guerrero-Santana,          499   F.3d     at     94.    One    recognized

limitation on its use is that equitable tolling is unavailable to

excuse a party who has failed to exercise due diligence.                          See

Fustaguio do Nascimento v. Mukasey, 549 F.3d 12, 18 (1st Cir.

2008); Guerrero-Santana, 499 F.3d at 94.

             In    the    case   at   hand,    the    BIA    determined    that   the

petitioner did not exercise due diligence in moving to reopen.

That determination is supportable even if we assume, for argument's

sake,   that      the    petitioner   received       ineffective    assistance     of

counsel.     Regardless of what poor advice he may have gotten from

Chen, the fact remains that he made no attempt to contact the

immigration court for more than a decade.                   This lengthy period of

inaction occurred notwithstanding the fact that the removal order

was served by mail on the petitioner at his correct address and

included clear instructions for filing a motion to reopen.                    And in

all events, Chen's supposed disappearance should have alerted the

petitioner that his immigration status might be in jeopardy.

             Courts and agencies, like the Deity, tend to help those

who help themselves.         Here, the petitioner made no effort to help

himself. His inordinate lassitude not only demonstrates a stunning

lack of diligence but also serves to defeat his far-fetched claim

of error.      See Xue Su Wang, 750 F.3d at 90; see also Beltre-Veloz


                                        -11-
v. Mukasey, 533 F.3d 7, 11 (1st Cir. 2008) (holding equitable

tolling precluded by alien's failure to act for roughly eight years

despite knowledge that removal proceedings had been commenced).

          The petitioner balks, complaining that the agency failed

to consider the merits of his ineffective assistance claim.        This

complaint is jejune: contrary to the petitioner's importunings, the

record   makes   manifest   that    the   allegations   of   ineffective

assistance were squarely within the agency's contemplation when it

concluded that the petitioner had not exercised due diligence. For

example, the BIA's decision specifically noted that the eleven-year

delay in filing a motion to reopen precluded a finding of due

diligence even if the petitioner had received the parlous legal

advice that he claimed to have gotten.

          We smooth out two last wrinkles.        First, we previously

remanded this case for consideration of whether changed country

circumstances formed a plausible basis for extending the time for

moving to reopen. The BIA concluded that such an extension was not

justified. The petitioner has not renewed this claim and, thus, we

deem it abandoned.   See Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir.

2010); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

          The second wrinkle is more exotic. On December 19, 2014,

the petitioner filed an informative motion advising us of his

intention to seek deferred action under the recently announced

Deferred Action for Parental Accountability (DAPA) program.         The


                                   -12-
DAPA program is to be administered by the United States Citizenship

and Immigration Service (USCIS).      Our opinion in this matter is

without prejudice to the filing of an application for DAPA relief

with the USCIS. We take no view as to the petitioner's eligibility

for such relief.

          We need go no further. For the reasons elucidated above,

we deny the petitions for review.



So Ordered.




                               -13-
