         12-4389
         Ezquivel v. Holder
                                                                                       BIA
                                                                                Laforest, IJ
                                                                               A075 814 820
                               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.

 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 18th day of February, two thousand fourteen.
 5
 6
 7       PRESENT:
 8                REENA RAGGI,
 9                DEBRA ANN LIVINGSTON,
10                GERARD E. LYNCH,
11                     Circuit Judges.
12       _____________________________________
13
14       JOSE DE JESUS EZQUIVEL,
15                Petitioner,
16
17                            v.                                12-4389
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                Jon E. Jessen, Law Offices of Jon E.
25                                      Jessen, LLC, Stamford, Connecticut.
26
27       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
28                                      Attorney General; Stephen J. Flynn,
29                                      Assistant Director; Jeffrey R.
30                                      Meyer, Attorney, Office of
 1                          Immigration Litigation, United
 2                          States Department of Justice,
 3                          Washington, D.C.

 4       UPON DUE CONSIDERATION of this petition for review of a

 5   decision of the Board of Immigration Appeals (“BIA”), it is

 6   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 7   review is DENIED.

 8       Jose De Jesus Ezquivel, a native and citizen of Mexico,

 9   seeks review of an October 2, 2012, decision of the BIA,

10   affirming the May 17, 2011, decision of Immigration Judge

11   (“IJ”) Brigitte Laforest denying his motion to reconsider

12   the denial of his motion to reopen and rescind.    In re Jose

13   De Jesus Ezquivel, No. A075 814 820 (B.I.A. Oct. 2, 2012),

14   aff’g No. A075 814 820 (Immig. Ct. N.Y. City May 17, 2011).

15   We assume the parties’ familiarity with the underlying facts

16   and procedural history of this case.

17       Because Ezquivel petitions for review of the denial of

18   a motion to reconsider, but not from the underlying decision

19   for which reconsideration was sought, we have reviewed only

20   the denial of his motion to reconsider.   See Ke Zhen Zhao v.

21   U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).

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

23   the IJ’s and the BIA’s opinions “for the sake of


                                  2
 1   completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

 2   2008).   We review the agency’s denial of a motion to

 3   reconsider for abuse of discretion.   See Jin Ming Liu v.

 4   Gonzales, 439 F.3d 109, 111 (2d Cir. 2006).

 5       Here, Esquivel argues that the agency abused its

 6   discretion in affirming the IJ’s underlying denial of his

 7   motion to rescind his in absentia removal order. He contends

 8   that he demonstrated that the time limitation for filing his

 9   motion should have been equitably tolled based on his

10   ineffective assistance of counsel claim.   It is undisputed

11   that Ezquivel’s 2011 motion to rescind was untimely as it

12   was filed more than 180 days after the IJ’s 2007 in absentia

13   removal order.   See 8 U.S.C. § 1229a(b)(5)(C)(i).   Esquivel

14   does not argue that he never received notice of his removal

15   hearing, nor that he was in custody at the time of the

16   proceeding. See 8 U.S.C. § 1229a(b)(5)(C)(ii).   Thus, an IJ

17   could have reopened Esquivel’s case only if the court tolled

18   the time that elapsed from the date of his removal order to

19   the date of Esquivel’s motion to reopen.

20       In order to warrant equitable tolling, even assuming

21   that prior counsel was ineffective, an alien is required to

22   demonstrate “due diligence” in pursuing his claim during


                                   3
 1   “both the period of time before the ineffective assistance

 2   of counsel was or should have been discovered and the period

 3   from that point until the motion to reopen is filed.”

 4   Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008); see

 5   also Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006).     The

 6   agency did not err in finding that Ezquivel failed to

 7   demonstrate due diligence because the record indicates that,

 8   although he knew of the bases for his ineffective assistance

 9   claim by at least 2007, he did not take any action in his

10   removal proceedings until filing his motion in 2011.     See

11   Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007);

12   Cekic, 435 F.3d at 171.     Accordingly, because the IJ did not

13   abuse her discretion in denying Ezquivel’s motion to rescind

14   as untimely, the agency did not err in declining to

15   reconsider that decision.     See 8 U.S.C. § 1229a(b)(5)(C);

16   8 C.F.R. § 1003.23(b)(4)(ii).

17       For the foregoing reasons, the petition for review is

18   DENIED.

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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