     18-1711 (L)
     Duncan v. Barr
                                                                                 BIA
                                                                         A040 120 633
                           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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 20th day of May, two thousand twenty.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DENNY CHIN,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   CLAUDE ALPHONSO DUNCAN, AKA
14   ALPHONSO DUNCAN,
15            Petitioner,
16
17                    v.                                       18-1711(L),
18                                                             18-2692(Con)
19                                                             NAC
20   WILLIAM P. BARR, UNITED STATES
21   ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                  Tiffany A. Javier, Kerry W. Bretz,
26                                    Bretz & Coven, LLP, New York, NY.
27
28   FOR RESPONDENT:                  Joseph H. Hunt, Assistant Attorney
29                                    General; Terri J. Scadron,
30                                    Assistant Director; Corey L.
31                                    Farrell, Attorney, Office of
32                                    Immigration Litigation, United
 1                               States Department of Justice,
 2                               Washington, DC.

 3       UPON DUE CONSIDERATION of these petitions for review of

 4   two Board of Immigration Appeals (“BIA”) decisions, it is

 5   hereby ORDERED, ADJUDGED, AND DECREED that the petitions for

 6   review are DENIED.

 7       Petitioner Claude Alphonso Duncan, a native and citizen

 8   of Jamaica, seeks review of a May 8, 2018 decision of the BIA

 9   denying his motion to reopen his deportation proceedings and

10   an August 13, 2018 decision of the BIA denying his motion to

11   reconsider that decision.   In re Claude Alphonso Duncan, No.

12   A 040 120 633 (B.I.A. May 8 & Aug. 13, 2018).   We assume the

13   parties’ familiarity with the underlying facts and procedural

14   history.

15       We review a denial of a motion to reopen and reconsider

16   for abuse of discretion.    Jian Hui Shao v. Mukasey, 546 F.3d

17   138, 168–69, 173 (2d Cir. 2008).

18       Motions to reopen proceedings where the agency entered a

19   deportation order in absentia are governed by different rules

20   depending on whether the movant seeks to rescind the order or

21   reopen to present new evidence of eligibility for relief from

22   removal.   See Song Jin Wu v. INS, 436 F.3d 157, 163–64 (2d

23   Cir. 2006); In re M-S-, 22 I. & N. Dec. 349, 353–55 (B.I.A.
                                  2
 1   1998).   Accordingly, when, as here, “an alien files a single

 2   motion that seeks both rescission of an in absentia removal

 3   order . . . as well as reopening of removal proceedings” based

 4   on a claim of eligibility for relief, “we treat the motion as

 5   comprising   distinct   motions       to    rescind       and    to    reopen.”

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

 7   review the denial of a motion to rescind an in absentia order

 8   under the same abuse of discretion standard applicable to

 9   motions to reopen.      Id. at 357; see also Kaur v. BIA, 413

10   F.3d 232, 233 (2d Cir. 2005).

11   Motion to Rescind

12       The agency may rescind an in absentia order if the alien

13   demonstrates that he lacked notice of the hearing or, if

14   rescission   is   requested   within       180     days,    “if       the   alien

15   demonstrates   that   the   failure        to    appear    was    because     of

16   exceptional circumstances.”       8 U.S.C. § 1229a(b)(5)(C)(i);

17   see 8 C.F.R. § 1003.23(b)(4)(ii).               The agency did not abuse

18   its discretion in denying Duncan’s motion to rescind.

19       As the BIA found, Duncan received notice of his September

20   24, 1990 hearing. The record shows that a telephonic hearing

21   was held on September 17, 1990, in which Duncan participated.

22   The IJ stated that the hearing would be adjourned to September

                                       3
 1   24, and confirmed the date and location with Duncan, and

 2   Duncan indicated that he understood.        A hearing notice was

 3   sent to his attorney, who attended the September 24 hearing.

 4   Because Duncan received both oral notice directly and written

 5   notice through his attorney, he failed to show lack of notice.

 6   See 8 U.S.C. § 1229a(b)(5)(A) (“Any alien who, after written

 7   notice . . . has been provided to the alien or the alien’s

 8   counsel of record, does not attend a proceeding under this

 9   section, shall be ordered removed in absentia . . . .”).

10   Accordingly, the BIA did not abuse its discretion by declining

11   to rescind Duncan’s deportation order.       See Ke Zhen Zhao v.

12   U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (“A n

13   abuse of discretion may be found . . . where the Board’s

14   decision   provides   no   rational   explanation,    inexplicably

15   departs    from   established   policies,   is    devoid   of   any

16   reasoning, or contains only summary or conclusory statements;

17   that is to say, where the Board has acted in an arbitrary or

18   capricious manner.” (internal citations omitted)).

19       Duncan argues that the BIA abused its discretion by

20   faulting him for not arguing lack of notice in his pro se

21   appeal of the in absentia order in 1990.         However, Duncan’s

22   only statements in his appeal were that he was recovering

                                     4
 1   from drug addiction, and he wanted his criminal case dismissed

 2   and to remain with his children.           Accordingly, the BIA did

 3   not misstate the record.          Moreover, Duncan has not alleged

4    how   this    statement   shows    error   in    the    BIA’s   decision:

5    reopening required either a showing of lack of notice, as

6    discussed above, or the filing of a timely motion to reopen,

7    which, as discussed below, did not happen.

 8   Motion to Reopen

 9         A “motion to reopen deportation or exclusion proceedings

10   (whether before the Board or the Immigration Judge) . . .

11   must be filed no later than 90 days after the date on which

12   the   final    administrative     decision      was    rendered   in   the

13   proceeding sought to be reopened, or on or before September

14   30, 1996, whichever is later.”          8 C.F.R. § 1003.2(c)(2); see

15   also 8 U.S.C. § 1229a(c)(7)(C)(i).              It is undisputed that

16   Duncan’s June 2018 motion to reopen, filed over two decades

17   after the BIA’s 1992 dismissal of his appeal of the in

18   absentia order, was untimely.           Although the time for filing

19   may be tolled for ineffective assistance of counsel, Duncan

20   did not raise such a claim and would have had to establish

21   that he diligently pursued his ineffective assistance claim

22   during the more than two-decade period he would have to toll.

                                         5
 1   See Rashid v. Mukasey, 533 F.3d 127, 130, 132–33 (2d Cir.

 2   2008) (petitioner who waited a year and a half after adverse

 3   BIA decision did not demonstrate due diligence).                     Duncan’s

 4   purported eligibility for a waiver of deportation does not

 5   implicate any exception to the time limit for filing a motion

 6   to reopen.        See 8 U.S.C. § 1229a(c)(7)(C)(ii) (providing

 7   exception    for     asylum    applications      based      on        changed

 8   conditions); 8 C.F.R. § 1003.2(c)(3) (listing exceptions);

 9   cf. Matter of Yauri, 25 I. & N. Dec. 103, 105 (B.I.A. 2009)

10   (emphasizing “that untimely motions to reopen to pursue an

11   application for adjustment of status . . . do not fall within

12   any of the statutory or regulatory exceptions to the time

13   limits for motions to reopen”).

14   Motion to Reconsider

15       The BIA did not abuse its discretion in denying the

16   motion to reconsider.          A motion for reconsideration must

17   specify errors of fact or law in the BIA’s decision and be

18   supported    with     pertinent     authority.       See         8    C.F.R.

19   § 1003.2(b)(1).      As discussed above, the BIA did not err in

20   declining    to    rescind    the   in   absentia   order    or        reopen

21   proceedings.

22

                                         6
 1       Duncan argues that reconsideration is warranted because

 2   his due process rights were violated during his 1990 hearings.

3    Duncan’s challenges, however, are to the 1990 proceedings and

4    with the BIA’s 1992 decision and thus were not timely raised

5    in his motion to reconsider the 2018 denial of reopening.

6    See 8 C.F.R. § 1003.2(b)(2) (a motion to reconsider must be

7    filed within 30 days after the mailing of the BIA decision).

 8   Sua Sponte Reopening

 9       Lastly, while a motion asking the agency to exercise its

10   sua sponte authority to reopen may be granted outside any

11   time period for filing motions to rescind or reopen, see 8

12   C.F.R. § 1003.2(a), we lack jurisdiction to review a decision

13   declining to reopen sua sponte, see Ali v. Gonzales, 448 F.3d

14   515, 518 (2d Cir. 2006). Although we may remand if the agency

15   “misperceived the legal background and thought, incorrectly,

16   that a reopening would necessarily fail,” Mahmood v. Holder,

17   570 F.3d 466, 469 (2d Cir. 2009), the BIA did not misperceive

18   the law or even address Duncan’s eligibility for relief, it

19   simply   found   no    exceptional   circumstances   warranting

20   reopening.

21

22

                                    7
1       For the foregoing reasons, the petitions for review are

2   DENIED. All pending motions and applications are DENIED and

3   stays VACATED.

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe,
6                              Clerk of Court




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