    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


                                4
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


                                5
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




                                6
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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