    15-2133
    Lewis v. Lynch
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A095 989 875
                          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
    19th day of October , two thousand sixteen.

    PRESENT:
             RALPH K. WINTER,
             ROSEMARY S. POOLER,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    _____________________________________

    WAYNE LEWIS,
             Petitioner,

                     v.                                              15-2133
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Audrey A. Thomas, Rosedale, New
                                         York.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; John W.
                                         Blakeley, Assistant Director; W.
                                         Daniel Shieh, 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 Wayne Lewis, a native and citizen of Trinidad

and Tobago, seeks review of a June 3, 2015, decision of the BIA

affirming a September 9, 2014, decision of an Immigration Judge

(“IJ”) denying Lewis’s motion to rescind his removal order

entered in absentia.         In re Wayne Lewis, No. A095 989 875

(B.I.A. June 3, 2015), aff’g No. A095 989 875 (Immig. Ct. N.Y.

City Sept. 9, 2014).     We assume the parties’ familiarity with

the underlying facts and procedural history in this case.

       We have reviewed the IJ’s decision as supplemented by the

BIA.    See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

We review the agency’s denial of a 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 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
                                   2
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).    Because

Lewis’s attorney of record had notice of his October 2010

hearing, his motion to rescind the IJ’s removal order entered

in absentia at that hearing was subject to the 180-day time

limit, and he was required to demonstrate that exceptional

circumstances excused his failure to appear.       See 8 U.S.C.

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

2006).

    It is undisputed that Lewis’s 2014 motion to rescind was

untimely filed more than three years after his 2010 removal

order.   See 8 U.S.C. § 1229a(b)(5)(C)(i).    Equitable tolling

of the time to file may be available for claims of ineffective

assistance of counsel.    See Cekic v. INS, 435 F.3d 167, 170 (2d

Cir. 2006).   The agency did not err in finding no basis for

tolling.

    In order to warrant tolling, 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
                                3
until the motion to reopen is filed.”    Rashid v. Mukasey, 533

F.3d 127, 132 (2d Cir. 2008); see also Cekic, 435 F.3d at 170.

Lewis failed to demonstrate due diligence.     He did not assert

that he took any action in his case during the more than three

years that passed between the IJ ordering him removed in

absentia in October 2010 and his filing of a motion to rescind

in April 2014.    See Jian Hua Wang v. BIA, 508 F.3d 710, 715-16

(2d Cir. 2007).   Lewis’s separate claim that he failed to appear

due to illness provides no ground for equitable tolling.

    For the foregoing reasons, the petition for review is

DENIED.    As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot.    Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




                                4
