         09-3532-ag
         Lee v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A073 776 201
                           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 Daniel Patrick                 Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                 City of
 4       New York, on the 1 st day of September, two thousand               ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                      Chief Judge,
 9                JON O. NEWMAN,
10                JOSÉ A. CABRANES,
11                     Circuit Judges.
12       ______________________________________
13
14       LEE TING,
15                       Petitioner,
16                                                              09-3532-ag
17                        v.                                    NAC
18
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       ______________________________________
24
25       FOR PETITIONER:                Douglas B. Payne, New York, New
26                                      York.
27
28       FOR RESPONDENT:                Tony West, Assistant Attorney
29                                      General, Civil Division; Cindy S.
30                                      Ferrier, Senior Litigation Counsel;
31                                      Michelle Y.F. Sarko, Attorney,
32                                      Office of Immigration Litigation,
33                                      United States Department of Justice,
34                                      Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5        Petitioner Lee Ting (“Lee”), a native and citizen of

6    the People’s Republic of China, seeks review of a July 20,

7    2009, order of the BIA affirming Immigration Judge (“IJ”)

8    Barbara A. Nelson’s April 30, 2008, denial of his motion to

9    reopen.   In re Lee Ting, No. A073 776 201 (B.I.A. July 20,

10   2009); aff’g No. A073 776 201 (Immig. Ct. N.Y. City April

11   30, 2008).    We assume the parties’ familiarity with the

12   underlying facts and procedural history of the case.

13       We review the BIA’s denial of a motion to reopen for

14   abuse of discretion.     Ali v. Gonzales, 448 F.3d 515, 517 (2d

15   Cir. 2006).    An alien may only file one motion to reopen and

16   must do so within 90 days of the agency’s final

17   administrative decision.     8 C.F.R. § 1003.2(c)(2).   However,

18   the time and number limitations do not apply to motions to

19   reopen in absentia exclusion proceedings if the alien

20   establishes reasonable cause for his failure to appear at

21   the exclusion hearing.     See 8 C.F.R.

22   § 1003.23(b)(4)(iii)(B); Matter of N-B-, 22 I. & N. Dec.

23   590, 591 (BIA 1999).


                                     2
1        The BIA found that the ineffective assistance of Lee’s

2    former counsel, who advised him not to attend the August

3    1995 hearing at which he was ordered removed in absentia,

4    constituted reasonable cause for Lee’s failure to appear.

5    However, the BIA went on to find that Lee failed to exercise

6    due diligence in seeking to reopen his proceedings because

7    he waited nearly thirteen years after the in absentia

8    exclusion order to file his motion to reopen.   See Cekic v.

9    INS, 435 F.3d 167, 170 (2d Cir.2006) (noting that “no matter

10   how egregiously ineffective counsel’s assistance may have

11   been, an alien will not be entitled to equitable tolling

12   unless he can affirmatively demonstrate that he exercised

13   reasonable due diligence during the time period sought to be

14   tolled”); see also Rashid v. Mukasey, 533 F.3d 127, 132 (2d

15   Cir. 2008) (in order to equitably toll the filing deadline

16   for a motion to reopen based on ineffective assistance of

17   counsel, an alien must demonstrate that he or she has

18   exercised due diligence both before the ineffective

19   assistance of counsel was or should have been discovered and

20   the period from that point until the motion to reopen is

21   filed).   Even though Lee was in exclusion proceedings and

22   there was no deadline applicable to his motion to reopen, it


                                   3
1    does not follow that the BIA was foreclosed from denying his

2    motion as a matter of discretion, based on its finding that

3    Lee failed to exercise due diligence in the thirteen years

4    after he became aware he had been ordered excluded.     See

5    Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005).    Our

6    requirement that aliens exercise due diligence in the

7    equitable tolling context applies with equal force in this

8    situation.    See Iavorski v. INS, 232 F.3d 124, 134 (2d Cir.

9    2000).   Furthermore, Lee failed to exhaust his argument that

10   considerations of family unity should outweigh his lack of

11   due diligence by not raising it in his motion to reopen or

12   his brief to the BIA.    See Foster v. INS, 376 F.3d 75, 78

13   (2d Cir. 2004).    In any event, the regulations to which Lee

14   cites, 8 C.F.R. § 236.10-18, are inapposite to his case, as

15   they relate to immediate relatives of Seasonal Agricultural

16   Workers and “Amnesty or Cuban/Haitian entrants.”

17       Moreover, the BIA also did not abuse its discretion in

18   denying reopening as Lee was statutorily ineligible to apply

19   to the IJ for adjustment of status because he was in

20   exclusion proceedings.    See 8 C.F.R. §§ 245.2(a)(1) and

21   1245.2(a)(1); see also Matter of Castro, 21 I. & N. Dec. 379

22   (BIA 1996).


                                    4
1        For the foregoing reasons, the petition for review is

2    DENIED.   As we have completed our review, any pending motion

3    for a stay of removal in this petition is DISMISSED as moot.

4    Any pending request for oral argument in this petition is

5    DENIED in accordance with Federal Rule of Appellate

6    Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

 7                               FOR THE COURT:
 8                               Catherine O’Hagan Wolfe, Clerk
 9
10
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