     17-1825
     Chen v. Barr
                                                                                 BIA
                                                                            Nelson, IJ
                                                                         A078 863 122

                         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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 30th day of August, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            REENA RAGGI,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   HUI CHEN,
14                  Petitioner,
15
16                  v.                                         17-1825
17                                                             NAC
18   WILLIAM P. BARR,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                 Thomas V. Massucci, New York, NY.
24
25   FOR RESPONDENT:                 Chad A. Readler, Acting Assistant
26                                   Attorney General; Jeffery R.
27                                   Leist, Senior Litigation Counsel;
28                                   Kathleen Kelly Volkert, Trial
 1                                    Attorney, Office of Immigration
 2                                    Litigation, United States
 3                                    Department of Justice, Washington,
 4                                    DC.
 5
 6          UPON DUE CONSIDERATION of this petition for review of a

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

 8   ORDERED, ADJUDGED, AND DECREED that the petition for review

 9   is DENIED.

10          Petitioner      Hui   Chen,    a       native   and    citizen    of     the

11   People’s Republic of China, seeks review of a May 11, 2017

12   decision of the BIA affirming a November 3, 2016 decision of

13   an Immigration Judge (“IJ”) denying Chen’s motion to rescind

14   her removal order entered in absentia and reopen her removal

15   proceedings.         In re Hui Chen, No. A078 863 122 (B.I.A. May

16   11, 2017), aff’g No. A078 863 122 (Immig. Ct. N.Y. City Nov.

17   3,   2016).      We    assume   the   parties’         familiarity      with    the

18   underlying facts and procedural history in this case.

19          We have reviewed both the IJ’s and the BIA’s opinions

20   “for    the   sake    of completeness.”            Wangchuck     v.     Dep’t    of

21   Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).                        The only

22   ruling    Chen   challenges     is    the       denial   of    her    motion     to

23   rescind.      We review the denial of a motion to rescind an in

                                               2
 1   absentia removal order for abuse of discretion.       See Alrefae

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

 3       The agency did not abuse its discretion in denying

 4   Chen’s motion to rescind.   An in absentia removal order “may

 5   be rescinded only-- (i) upon a motion to reopen filed within

 6   180 days after the date of the order of removal if the alien

 7   demonstrates that the failure to appear was because of

 8   exceptional circumstances . . ., or (ii) upon a motion to

 9   reopen filed at any time if the alien demonstrates that the

10   alien did not receive notice . . . and the failure to appear

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

12   § 1229a(b)(5)(C); see 8 C.F.R. § 1003.23(b)(4)(ii).       Because

13   Chen received notice of her 2003 hearing, her motion to

14   rescind was subject to the 180-day time limit.       See 8 U.S.C.

15   § 1229a(b)(5)(C); Song Jin Wu v. INS, 436 F.3d 157, 162 (2d

16   Cir. 2006).   It is undisputed that Chen’s 2016 motion to

17   rescind was untimely because the IJ issued the in absentia

18   removal order more than 13 years earlier in 2003.       See

19   8 U.S.C. § 1229a(b)(5)(C)(i).       Chen argued that her prior

20   counsel was responsible for her failure to timely appear and

21   therefore the 180-day filing period should be tolled.
                                     3
 1         Although ineffective assistance may provide a basis for

 2   equitable tolling of the filing period, see Cekic v. INS,

 3   435   F.3d   167,   170   (2d   Cir.   2006),    to   obtain    equitable

 4   tolling, an alien is required to demonstrate “due diligence”

 5   in pursuing her claim during “both the period of time before

 6   the ineffective assistance of counsel was or should have

 7   been discovered and the period from that point until the

 8   motion to reopen is filed,” Rashid v. Mukasey, 533 F.3d 127,

 9   132 (2d Cir. 2008).       The agency did not err in finding that

10   Chen failed to establish due diligence because she knew

11   about the alleged ineffective assistance when she filed her

12   first motion to rescind in 2003 and did not assert that she

13   took any action in her case for the 13 years between 2003,

14   when the IJ denied that initial motion, and 2016, when she

15   requested    her    immigration   records   so    she   could    move   to

16   rescind again.      See Jian Hua Wang v. BIA, 508 F.3d 710, 715

17   (2d Cir. 2007) (placing burden on petitioner to prove due

18   diligence).     Accordingly, the agency reasonably determined

19   that Chen failed to demonstrate due diligence, and that her

20   ineffective assistance claim was foreclosed as a result.

21   See Rashid, 533 F.3d at 132-33.
                                        4
 1       We     do    not    address    Chen’s   challenges     to     the    IJ’s

 2   alternative bases for rejecting her ineffective assistance

 3   of counsel claim.          See INS v. Bagamasbad, 429 U.S. 24, 25

 4   (1976)    (“As   a     general   rule   courts   and   agencies    are    not

 5   required to make findings on issues the decision of which is

 6   unnecessary to the results they reach.”).

 7       For the foregoing reasons, the petition for review is

 8   DENIED.

 9                                       FOR THE COURT:
10                                       Catherine O’Hagan Wolfe
11                                       Clerk of Court
12
13
14




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