     14-2756
     Lu v. Lynch
                                                                                       BIA
                                                                               Van Wyke, IJ
                                                                               A074 324 873


                        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 SUMMARYORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   1st day of July, two thousand fifteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            DEBRA ANN LIVINGSTON,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   WAN YAN LU,
14            Petitioner,
15
16                 v.                                          14-2756
17                                                             NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.1
22   _____________________________________
23
24   FOR PETITIONER:                 Joshua Bardavid, New York, New York.
25


     1 - Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
     Attorney General Loretta E. Lynch is automatically substituted for
     former Attorney General Eric H. Holder, Jr.
 1   FOR RESPONDENT:         Benjamin C. Mizer, Acting Assistant
 2                           Attorney General; Melissa
 3                           Neiman-Kelting, Senior Litigation
 4                           Counsel; Kristofer R. McDonald, Trial
 5                           Attorney, Office of Immigration
 6                           Litigation, Civil Division, United
 7                           States Department of Justice,
 8                           Washington D.C.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

11   Board of Immigration Appeals (“BIA”) decision, it is hereby

12   ORDERED, ADJUDGED, AND DECREED that the petition for review is

13   DENIED in part and in part DISMISSED.

14       Wan Yan Lu, a native and citizen of the People’s Republic

15   of China, seeks review of a July 3, 2014, decision of the BIA,

16   affirming the October 11, 2012, decision of an Immigration Judge

17   (“IJ”), denying his motion to reopen.    In re Wan Yan Lu, No.

18   A074 324 873 (B.I.A. Jul. 3, 2014), aff’g No. A074 324 873

19   (Immig. Ct. N.Y. City Oct. 11, 2012).   We assume the parties’

20   familiarity with the underlying facts and procedural history

21   in this case.

22       Under the circumstances of this case, we have reviewed the

23   IJ’s decision as supplemented by the BIA.      See Yan Chen v.

24   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The applicable

25   standards of review are well-established.        See 8 U.S.C.



                                    2
1    § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

2    Cir. 2009).

3         We review the denial of motions to reopen for abuse of

4    discretion.   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69,

5    173 (2d Cir. 2008).   A motion to rescind an in absentia removal

6    order is reviewed under the same standard as a motion to reopen.

7    See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006).

8    While a motion to rescind based on a lack of notice may be filed

9    at any time, a motion based on “exceptional circumstances” must

10   be filed within 180 days of a removal order.     8 U.S.C.

11   § 1229a(b)(5)(C)(i), (ii).      Exceptional circumstances are

12   defined as “circumstances (such as battery or extreme cruelty

13   to the alien or any child or parent of the alien, serious illness

14   of the alien, or serious illness or death of the spouse, child,

15   or parent of the alien, but not including less compelling

16   circumstances) beyond the control of the alien.”        8 U.S.C.

17   § 1229a(e)(1).

18        Here, Lu does not dispute that he received notice of his

19   removal hearing and that his motion to rescind was filed more

20   than 11 years after the 180-day deadline.           Instead, he

21   challenges the agency’s determination that he did not exercise


                                     3
1    due diligence such that tolling of the deadline was warranted.

2    The agency did not abuse its discretion in determining that,

3    by waiting more than 11 years to seek reopening, Lu did not

4    demonstrate due diligence.    See Jian Hua Wang v. BIA, 508 F.3d

5    710, 715-16 (2d Cir. 2007) (per curiam) (finding no abuse of

6    discretion where the BIA held that a delay of five months between

7    filing a Lozada complaint and filing a motion to reopen

8    constituted a lack of due diligence); Rashid v. Mukasey, 533

9    F.3d 127, 132 (2d Cir. 2008) (movant lacked due diligence when

10   there was a 14 month delay between becoming “dissatisfied” with

11   his attorney and consulting a different attorney).     Moreover,

12   a movant is required to demonstrate “due diligence” in pursuing

13   a claim “during the entire period he . . . seeks to toll.”

14   Rashid, 533 F.3d at 132.   Lu’s vague statement in his affidavit

15   that he “went to other attorneys” is hardly sufficient to show,

16   as he argues, that the agency erred in not considering his

17   “unbroken efforts” to seek alternative counsel.       Indeed, he

18   apparently only moved to rescind his in absentia order after

19   a friend urged him to seek counsel.

20         We generally lack jurisdiction to review the agency’s

21   denial of a motion to reopen pursuant to its sua sponte

22   authority.   Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006)
                                     4
1    (per curiam).     However, we may remand for the agency to

2    reconsider a decision declining to sua sponte reopen if the

3    agency misperceived the law, for example, by erroneously

4    concluding that an application for relief “would necessarily

5    fail.”    Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009).

6    Lu argues that the BIA failed to consider certain discretionary

7    factors in declining to exercise its sua sponte authority to

8    reopen.   However, the BIA’s failure to explicitly address these

9    discretionary factors was not a misperception of law or an

10   erroneous conclusion about Lu’s eligibility for some form of

11   relief.    The agency’s decision therefore does not fall within

12   the ambit of Mahmood.   Accordingly, we lack jurisdiction over

13   this issue, and the petition for review is dismissed to this

14   extent.   See id; Ali, 448 F.3d at 517.

15       For the foregoing reasons, the petition for review is

16   DENIED in part and in part DISMISSED.   As we have completed our

17   review, any stay of removal that the Court previously granted

18   in this petition is VACATED, and any pending motion for a stay

19   of removal in this petition is DISMISSED as moot.   Any pending

20   request for oral argument in this petition is DENIED in

21


                                     5
1   accordance with Federal Rule of Appellate Procedure 34(a)(2),

2   and Second Circuit Local Rule 34.1(b).

3                               FOR THE COURT:
4                               Catherine O’Hagan Wolfe, Clerk




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