    10-1225-ag
    Jassi v. Holder
                                                                                  BIA
                                                                             Nelson, IJ
                                                                          A072 048 960
                       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 12th day of April, two thousand eleven.

    PRESENT:
             ROBERT A. KATZMANN,
             DEBRA ANN LIVINGSTON,
             RAYMOND J. LOHIER, JR.,
                     Circuit Judges.
    _________________________________________

    SUNIL KUMAR JASSI
             Petitioner,

                      v.                                     10-1225-ag
                                                             NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _________________________________________

    FOR PETITIONER:               Jaime Jasso, Westlake Village, CA.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General, Civil Division; Ada E.
                                  Bosque, Senior Litigation Counsel;
                                  Jonathan Robbins, Trial Attorney,
                                  Office of Immigration Litigation,
                                  Civil Division, 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 Sunil Kumar Jassi, a native and citizen of

India, seeks review of the April 2, 2010, order of the BIA,

affirming the December 17, 2009, decision of Immigration

Judge (“IJ”) Barbara A. Nelson, which denied his motion to

rescind.     In re Sunil Kumar Jassi, No. A072 048 960 (B.I.A.

Apr. 2, 2010), aff’g No. A072 048 960 (Immig. Ct. N.Y. City

Dec. 17, 2009).    We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

    We review the denial of a motion to rescind an in

absentia order for abuse of discretion.     See Alrefae v.

Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); see also Kaur v.

BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).     The

agency’s regulations provide that, although motions to

rescind in absentia orders in exclusion proceedings are not

subject to time or numerical limitations, to obtain

rescission an alien must demonstrate that he had reasonable

cause for his failure to appear.     See 8 C.F.R.

§ 1003.23(b)(4)(iii)(B); Matter of N-B-, 22 I. & N. Dec.

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590, 591 (B.I.A. 1999).

    Contrary to Jassi’s argument that the agency did not

take his affidavit into account in reaching its decision,

both the IJ and the BIA referred to the claims Jassi made in

his affidavit in their decisions on the motion.      See Xiao Ji

Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d

Cir. 2006) (“[W]e presume that [the agency] has taken into

account all of the evidence before [it], unless the record

compellingly suggests otherwise.”); see also Wei Guang Wang

v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (holding that the

BIA does not abuse its discretion by giving summary

consideration to evidence presented in a motion to reopen).

    Jassi further argues that the agency abused its

discretion in reaching a decision based solely on a finding

that he failed to exercise due diligence, because he

successfully demonstrated that he failed to appear for his

May 1997 hearing due to ineffective assistance of counsel,

and he adequately explained why he waited over 12 years to

move to reopen his proceedings.   This argument is

unpersuasive.

    Although Jassi was in exclusion proceedings, and thus

the usual 90-day time limit on motions to reopen did not


                             3
apply, see 8 C.F.R. § 1003.23(b)(4)(iii)(D), the BIA was not

foreclosed from denying the motion as a matter of discretion

due to Jassi’s lack of due diligence.     The agency’s ultimate

decision regarding whether to rescind an in absentia

exclusion order under 8 C.F.R. § 1003.23 is discretionary.

See Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005); see also

Luna v. Holder, ---F.3d---, Nos. 07-3796-ag, 08-4840-ag,

2011 WL 722607, at *10 (2d Cir. Mar. 3, 2011) (noting the

different treatment this Court has accorded to statutory

motions to reopen versus regulatory motions to reopen, the

latter of which are discretionary).     Here, the BIA did not

abuse its discretion, as it provided a rational explanation

for denying the motion – the 12-year delay in filing.     See

Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d

Cir. 2001); see also, e.g., Zhao Quan Chen v. Gonzales, 492

F.3d 153, 155 (2d Cir. 2007) (three-year delay suggested

lack of diligence); Cekic v. INS, 435 F.3d 167, 171-72 (2d

Cir. 2006) (two-year delay suggested lack of diligence); Ali

v. Gonzales, 448 F.3d 515, 516-17 & n. 2 (2d Cir. 2006)

(eleven-year delay suggested lack of diligence).

    For the foregoing reasons, the petition for review is

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


                              4
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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