         12-4748
         Gaviola v. Lynch
                                                                                       BIA
                                                                                 Zagzoug, IJ
                                                                               A039 158 351
                             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 15th day of January, two thousand sixteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       MARK SEMANA GAVIOLA,
14                Petitioner,
15
16                          v.                                    12-4748
17                                                                NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,*
20                Respondent.
21       _____________________________________
22
23




              *Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Loretta E. Lynch is automatically
         substituted for former Attorney General Eric H. Holder, Jr.
         as Respondent.
 1   FOR PETITIONER:            Herbert J. Tan, Fort Lee, NJ.
 2
 3   FOR RESPONDENT:            Stuart F. Delery, Acting Assistant
 4                              Attorney General; Mary Jane Candaux,
 5                              Assistant Director; Channah F.
 6                              Norman, Trial Attorney, Office of
 7                              Immigration Litigation, United
 8                              States Department of Justice,
 9                              Washington, D.C.

10         UPON DUE CONSIDERATION of this petition for review of a

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

12   ORDERED, ADJUDGED, AND DECREED that the petition for review is

13   DENIED.

14         Petitioner Mark Semana Gaviola, a native and citizen of

15   the   Philippines,    seeks     review   of    the    November    8,   2012,

16   decision of the BIA affirming the December 21, 2010, decision

17   of an Immigration Judge (“IJ”), which denied Gaviola’s motion

18   to rescind his in absentia removal order.              In re Mark Semana

19   Gaviola, No. A039 158 351 (B.I.A. Nov. 8, 2012), aff’g No.

20   A039 158 351 (Immig. Ct. N.Y. City Dec. 21, 2010).               We assume

21   the   parties’    familiarity     with   the       underlying    facts      and

22   procedural history in this case.

23         Pursuant to 8 U.S.C. § 1229a(b)(5)(A), “[a]ny alien who,

24   after written notice . . . has been provided to the alien or

25   the alien’s counsel of record, does not attend a proceeding .

26   .   .,   shall   be   ordered    removed      in    absentia”    if    it    is


                                         2
 1   established “by clear, unequivocal, and convincing evidence

 2   that the written notice was so provided and that the alien is

 3   removable.”        An in absentia removal order may be rescinded,

 4   inter alia, upon a motion to reopen filed within 180 days

 5   after   the   date     of    the     order   of    removal   if   the    alien

 6   establishes        “exceptional        circumstances.”            8     U.S.C.

 7   § 1229a(b)(5)(C)(i); 8 C.F.R. § 1003.23(b)(4)(ii).                     When an

 8   alien files a motion that seeks both rescission of an in

 9   absentia order, as well as reopening of proceedings based on

10   new evidence, we treat the motion as comprising distinct

11   motions to rescind and to reopen.                 Alrefae v. Chertoff, 471

12   F.3d 353, 357 (2d Cir. 2006).           We review both the denial of a

13   motion to rescind an in absentia removal order and the denial

14   of a motion to reopen for abuse of discretion. Id.; Maghradze

15   v. Gonzales, 462 F.3d 150, 152-53 & n.1 (2d Cir. 2006).

16       Construing Gaviola’s motion before the IJ as both a

17   motion to reopen and as a motion to rescind the in absentia

18   order, the agency did not abuse its discretion in denying the

19   motion.       To    the     extent    that   Gaviola     moved    to    reopen

20   proceedings pursuant to 8 U.S.C. § 1229a(c)(7), he did not

21   present any new, previously unavailable evidence, or any

22   additional evidence at all, and accordingly the IJ did not


                                             3
 1   abuse her discretion in declining to reopen proceedings.   See

 2   8 C.F.R. § 1003.2(c)(1); Norani v. Gonzales, 451 F.3d 292, 294

 3   & n.3 (2d Cir. 2006).   To the extent that Gaviola moved to

 4   rescind the in absentia order, the motion, while timely, did

 5   not adequately allege exceptional circumstances which would

 6   warrant rescinding the order, as Gaviola stated only that his

 7   attorney had filed a motion to adjourn proceedings, and, by

 8   his own account, did not receive a reply to that motion.   See

 9   8 U.S.C. § 1229a(e)(1); Kulhawik v. Holder, 571 F.3d 296, 299

10   (2d Cir. 2009) (per curiam).   Accordingly, the agency did not

11   abuse its discretion in declining to rescind the in absentia

12   order.**



          **
           As the government notes in its brief, ineffective
     assistance of counsel can constitute exceptional
     circumstances warranting the reopening of a removal order
     entered in absentia, and, assuming due diligence on the part
     of the movant, the 180-day filing deadline may be equitably
     tolled. See Aris v. Mukasey, 517 F.3d 595, 599 & n.7 (2d
     Cir. 2008). Gaviola does not now allege and has not
     previously alleged that he received any ineffective
     assistance of counsel in these proceedings, and we do not
     opine on the merits of any such argument. We note, however,
     that Gaviola’s attorney failed to appear at the November
     2010 hearing which resulted in the in absentia order, and
     that this failure is neither explained nor shown to be the
     result of exceptional circumstances. Gaviola, moreover, may
     be statutorily eligible for cancellation of removal for
     permanent residents under 8 U.S.C. § 1229b(a), and, pursuant
     to Vartelas v. Holder, 132 S. Ct. 1479 (2012), he may no
     longer be inadmissible as charged.
                                    4
 1        Gaviola argues here for the first time that because his

 2   assault conviction was expunged in 2008, he is not removable

 3   as   charged.    As   the   government   notes,   this   argument   is

 4   unexhausted and we therefore do not consider it.***          See Lin

 5   Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.

 6   2007).

 7        For the foregoing reasons, the petition for review is

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

 9   that the Court previously granted in this petition is VACATED,

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

11   is DISMISSED as moot.       Any pending request for oral argument

12   in this petition is DENIED in accordance with Federal Rule of

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

14   34.1(b).

15                                   FOR THE COURT:
16                                   Catherine O’Hagan Wolfe, Clerk
17




          ***
           Moreover, Gaviola’s conviction was expunged pursuant
     to California Penal Code § 1203.4, and a conviction expunged
     under that particular statutory provision remains a
     conviction for immigration purposes. See Ramirez-Castro v.
     INS, 287 F.3d 1172, 1175 (9th Cir. 2002); Matter of
     Marroquin-Garcia, 23 I&N Dec. 705, 713-14 (A.G. 2005); see
     also Saleh v. Gonzales, 495 F.3d 17, 25 (2d Cir. 2007).
                                   5
