    10-2921-ag
    Sandoval v. Holder
                                                                                   BIA
                                                                              Straus, IJ
                                                                          A075 993 528
                          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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 9th day of January, two thousand twelve.

    PRESENT:
             ROGER J. MINER,
             ROBERT A. KATZMANN,
             BARRINGTON D. PARKER,
                  Circuit Judges.
    ______________________________________
    MARVIN OSIEL SANDOVAL,
             Petitioner,

                         v.                                10-2921-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:                James A. Welcome, Law Offices of
                                   James A. Welcome, Waterbury, CT.

    FOR RESPONDENT:                Tony West, Assistant Attorney
                                   General; Terri J. Scadron, Assistant
                                   Director; Colin J. Tucker, Trial
                                   Attorney, Office of Immigration
                                   Litigation, Civil Division, United
                                   States Department of Justice,
                                   Washington, DC.
    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.

    Marvin Osiel Sandoval, a native and citizen of

Guatemala, seeks review of a June 14, 2010, order of the BIA

affirming the May 13, 2009, decision of Immigration Judge

(“IJ”) Michael W. Straus denying his motion to rescind an in

absentia order of removal.   In re Marvin Osiel Sandoval, No.

A075 993 528 (B.I.A. June 14, 2010), aff’g No. A075 993 528

(Immigr. Ct. Hartford, CT. May 13, 2009).     We assume the

parties’ familiarity with the underlying facts and

procedural history of the case.

    We have reviewed the agency’s denial of Sandoval’s

motion to rescind for abuse of discretion.     See Alrefae v.

Chertoff, 471 F.3d 353, 357 (2d Cir. 2006).     Because

Sandoval’s motion to rescind based on his claim that his

failure to appear was due to exceptional circumstances was

not filed within 180 days of his removal order, he was

required to establish that the time limitation on motions to

rescind should be equitably tolled.   See 8 U.S.C.

§ 1229a(b)(5)(C)(i), (c)(7)(C)(iii)(2006); Cekic v. INS, 435


                              2
F.3d 167, 170 (2d Cir. 2006).       The agency reasonably

rejected Sandoval’s claim for equitable tolling because he

did not present any evidence to establish that he

“‘exercised due diligence in pursuing [his] case’” during

the period he sought to toll.       Cekic, 435 F.3d at 170

(quoting Iavorski v. INS, 232 F.3d 124, 135 (2d Cir. 2000)).

Thus the agency did not abuse its discretion in denying

Sandoval’s motion to reopen as untimely.

    For the foregoing reasons, the petition for review is

DENIED.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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