    14-3285
    Ochoa-Benitez v. Lynch
                                                                                       BIA
                                                                                   Lamb, IJ
                                                                               A097 528 147

                             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
    15th day of December, two thousand fifteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             RICHARD C. WESLEY,
             PETER W. HALL,
                  Circuit Judges.
    _____________________________________

    SAUL RUBEN OCHOA-BENITEZ, AKA SAUL
    OCHOA, AKA SAUL R. OCHOA,
              Petitioner,

                     v.                                              14-3285
                                                                     NAC

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Julie A. Goldberg, Bronx,
                                         New York.
FOR RESPONDENT:              Benjamin C. Mizer, Principal Deputy
                             Assistant Attorney General; Mary
                             Jane Candaux, Assistant Director;
                             Channah F. Norman, 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 Saul Ruben Ochoa-Benitez, a native and citizen

of Mexico, seeks review of an August 14, 2014, decision of the

BIA affirming a June 26, 2013, decision of an Immigration Judge

(“IJ”) denying Ochoa-Benitez’s motion to rescind his removal

order entered in absentia.    In re Saul Ruben Ochoa-Benitez, No.

A097 528 147 (B.I.A. Aug. 14, 2014), aff’g No. A097 528 147

(Immig. Ct. N.Y. City June 26, 2013).     We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    We have reviewed the agency’s denial of Ochoa-Benitez’s

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

Chertoff, 471 F.3d 353, 357 (2d Cir. 2006).   An order of removal

entered in absentia “may be rescinded only--(i) upon a motion
                                2
to reopen filed within 180 days after the date of the order of

removal if the alien demonstrates that the failure to appear

was because of exceptional circumstances . . .; or (ii) upon

a motion to reopen filed at any time if the alien demonstrates

that the alien did not receive notice . . . and the failure to

appear   was   through      no   fault     of   the    alien.”      8 U.S.C.

§ 1229a(b)(5)(C).          Ochoa-Benitez’s motion to rescind was

subject to the 180-day time limit because he admitted that he

received notice of his hearing and asserted that exceptional

circumstances should excuse his failure to appear.                See id.    It

is undisputed that Ochoa-Benitez’s 2013 motion to rescind was

untimely filed because the IJ ordered him removed in absentia

in 2006.    See 8 U.S.C. § 1229a(b)(5)(C)(i).

    In     order    to   warrant      equitable   tolling    or    establish

exceptional circumstances, even assuming that prior counsel was

ineffective,       an    alien   is    required   to    demonstrate         “due

diligence” in pursuing his claim during “both the period of time

before the ineffective assistance of counsel was or 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.
                                       3
2006).    Ochoa-Benitez failed to demonstrate due diligence.   He

did not take any action to pursue reopening in the approximately

six years that passed between his unauthorized reentry to the

United States in 2007 and his retention of current counsel upon

his arrest in 2013.    See Jian Hua Wang v. BIA, 508 F.3d 710,

715-16 (2d Cir. 2007).    Accordingly, the agency did not abuse

its discretion in denying Ochoa-Benitez’s motion, and we need

not consider his alternative arguments challenging the agency’s

decision.    See 8 U.S.C. § 1229a(b)(5)(C).

    For the foregoing reasons, the petition for review is

DENIED.

                              FOR THE COURT:
                              Catherine O=Hagan Wolfe, Clerk




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