                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                      November 30, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
SURYA BAHADUR GURUNG,

             Petitioner,

v.                                                          No. 12-9538
                                                        (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Surya Bahadur Gurung, a native and citizen of Nepal, petitions for review of

an order of the Board of Immigration Appeals (“BIA”). The BIA dismissed his

appeal from an immigration judge (“IJ”) decision denying his motion to reopen his

application for asylum, withholding of removal, and protection under the Convention




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Against Torture (“CAT”). The IJ denied the motion to reopen as untimely.

Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition.

                                            I

       Gurung entered the United States in 2002 and filed an application for asylum,

withholding of removal, and protection under the CAT in 2003. In support of his

application, Gurung stated that he and his family had been repeatedly persecuted by

the Maoist insurgency in Nepal.

       Gurung’s application was referred to the immigration court, which charged

him as removable. An IJ scheduled a hearing on Gurung’s application for October

2004, but Gurung’s attorney advised him not to appear at the hearing. The attorney

erroneously told Gurung he would be deported immediately if he attended. Shortly

before the hearing, Gurung’s attorney moved to withdraw from the case—apparently

without Gurung’s knowledge or consent—and attached a letter reminding Gurung of

the hearing. However, the letter was not addressed to Gurung’s correct address and

he did not receive it.

       Gurung failed to appear at the hearing and as a result, the IJ issued an in

absentia order of removal. A copy of the order was sent to Gurung’s last known

address, but Gurung had since moved and he apparently did not receive it.

       In 2010, Gurung obtained a new attorney, who learned that Gurung’s first

attorney had a record of misconduct and lacked legal status in the United States.

After filing a complaint against the first attorney with the Colorado Supreme Court,


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Gurung moved to reopen his removal proceedings. Gurung argued that his

circumstances demanded an exception to the normal 180-day filing deadline

following an in absentia order because he received ineffective assistance of counsel

and complied with the requirements of Matter of Lozada, 19 I. & N. Dec. 637, 639

(BIA 1988) (holding that a party moving to reopen based on a claim of ineffective

assistance of counsel must provide an affidavit attesting to the relevant facts, give

former counsel notice and an opportunity to respond to the allegations, and, in certain

cases, file a complaint with the appropriate disciplinary authorities). Gurung

contended that his first attorney had provided him with defective advice and that he

missed his immigration hearing based on that guidance. The IJ agreed that Gurung

had received ineffective assistance of counsel, but nevertheless denied the motion as

untimely because Gurung failed to exercise due diligence in raising the claim.

      Gurung appealed the IJ’s decision to the BIA, arguing that he failed to attend

the merits hearing because his attorney warned him not to appear. Gurung alleged

that he did not learn about the in absentia order until 2010, shortly before moving to

reopen his application.

      The BIA dismissed Gurung’s appeal. Even if Gurung received ineffective

assistance of counsel, the BIA concluded he failed to establish that the 180-day

deadline to file a motion to reopen should be equitably tolled because he did not

adequately explain the approximately six-year delay in raising the issue.




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                                           II

      We review the denial of a motion to reopen as untimely under an abuse of

discretion standard. Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004).

“The BIA abuses its discretion when its decision provides no rational explanation,

inexplicably departs from established policies, is devoid of any reasoning, or contains

only summary or conclusory statements.” Id. (quotation omitted). Under 8 U.S.C.

§ 1229a(b)(5)(C)(i), an in absentia removal order may be rescinded upon a motion to

reopen filed within 180 days after the date of the order and a showing that the

applicant’s failure to appear was due to exceptional circumstances. Gurung does not

contend that his motion to reopen was timely. He instead argues that equitable

tolling should apply based on his first attorney’s ineffective assistance of counsel.1

      Ineffective assistance of counsel may toll the filing period for a motion to

reopen. Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002). Beyond a showing of

ineffective assistance, an alien must also show that he exercised due diligence in

pursuing the case during the period the alien seeks to toll. Mahamat v. Gonzales,

430 F.3d 1281, 1283 (10th Cir. 2005). In reviewing such a claim, the BIA must give

more than “[a] simple cursory comparison of the date of filing and the regulatory


      1
        Under 8 U.S.C. § 1229a(b)(5)(C)(ii), Gurung’s in absentia order could be
rescinded upon a motion to reopen filed at any time if Gurung demonstrated that he
did not receive notice of his hearing. But even though Gurung alleges that he did not
receive certain notices—including a copy of the in absentia order—he does not
contend that he lacked notice of the hearing. His argument on appeal instead relies
on the fact that his attorney told him not to attend the hearing.


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time line for filing motions.” Riley, 310 F.3d at 1258. It must also examine the

applicant’s due diligence and his attempts to comply with the requirements outlined

in Matter of Lozada. Id.

      Gurung argues that in this case, the BIA abused its discretion by relying on

only a cursory comparison of the date of the in absentia order and the date he moved

to reopen, instead of evaluating the specific facts of his case. However, in

identifying the significant time that had elapsed between the in absentia order and

Gurung’s motion to reopen, the BIA emphasized that Gurung failed to adequately

explain why he waited so long to file his motion. The BIA acknowledged Gurung’s

general explanation that he learned of the in absentia order only after he went to an

attorney who checked on his case and discovered misconduct by the prior attorney.

But Gurung failed to explain or justify why he did not contact an attorney for nearly

six years, except to argue that the nature of his first attorney’s advice made him

afraid to inquire about his case. Given the paucity of facts and explanations provided

by Gurung about what, if anything, he did during the approximately six-year delay in

filing a motion to reopen, it was reasonable for the BIA to decide that he had not

exercised due diligence. The BIA therefore did not abuse its discretion when it

concluded Gurung’s motion to reopen was untimely.




                                          -5-
For the foregoing reasons, the petition for review is DENIED.


                                        Entered for the Court


                                        Carlos F. Lucero
                                        Circuit Judge




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