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.**

**At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall**  2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **0 t**  **h d**  **a y of**  **M a**  **y , two thousand**  **twenty .**  4 5 **PRESENT:** 6 **DENNIS JACOBS ,**  7 **DENNY CHIN ,**  8 **RICHARD J. SULLIVAN ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **CLAUDE ALPHONSO DUNCAN, AKA** 13 **ALPHONSO DUNCAN,** 14 **Petitioner ,**  15 16

**v. 18** 
**- 1711(L),**  17 **18**
**- 2692(Con)**  18 **NAC** 19 **WILLIAM P. BARR, UNITED STATES**  20 **ATTORNEY GENERAL,** 21 **Respondent .**  22

**_____________________________________** 23 24 **FOR PETITIONER:** Tiffany A. Javier , Kerry W. Br e tz , 25 Bretz & Coven, LLP, New York , NY

. 26 27 **FOR RESPONDENT:** Joseph H. Hunt , Assistant Attorney 28 General ; Terri J. Scadron , 29 Assistant Director; Corey L. 30 Farrell , Attorney, Office of 31 Immigration Litigation, United 322 States Department of Justice, 1 Washington, DC. 2

UPON DUE CONSIDERATION of these petition s for review of 3

two Board of Immigration Appeals (“BIA”) decision s , it is 4
hereby ORDERED, ADJUDGED, AND DECREED that the petition s for 5

review are DENIED

. 6

Petitioner Claude Alphonso Duncan , a native and citizen 7

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

den ying his motion to reopen his deportation proceedings and 9
an August 13, 2018 decision of the BIA denying his motion to 10

reconsider that decision

. In re Claude Alphonso Duncan , No. 11

A 0 40 1 20 633 (B.I.A. May 8 & Aug

. 13, 2018 ). We assume the 12
parties’ familiarity with the underlying facts and procedural 13
history. 14
We review a denial of a motion to reopen and reconsider 15

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

138, 168

– 69 , 173 (2d Cir. 2008). 17
Motions to reopen proceedings where the agency entered a 18
deportation order in absentia are governed by different rules 19
depending on whether the movant seeks to rescind the order or 20
reopen to present new evidence of eligibility for relief from 21

removal. See Song Jin Wu v. INS , 436 F.3d 157, 163

– 64 (2d 22

Cir. 2006); In re M

- S

- , 22 I. & N. Dec. 349, 353

– 55 (B

. I

. A

. 233 1998). Accordingly, when, as here, “ an alien files a single 1

motion that seeks both rescission of an in absentia removal 2

order

. . . as well as reopen ing of removal proceedings ” based 3

on a c laim of eligibility for relief, “ we treat the motion as 4
comprising distinct motions to rescind and to reopen. ” 5

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

. We 6

review the denial of a motion to rescind an i n absentia order 7
under the same abuse of discretion standard applicable to 8
motions to reopen. Id. at 357; see also Kaur v. BIA , 413 9

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

Motion to Rescind 11

The agency may rescind an in absentia order if the alien 12
demonstrates that he lacked notice of the hearing or, if 13
rescission is requested within 180 days, “if the alien 14
demonstrates that the failure to appear was because of 15
exceptional circumstances.” 8 U.S. C. § 1229a(b)(5)(C )(i ) ; 16

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

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

As t he BIA found , Duncan received notice of his September 19

24, 1990 hearing . T he record shows that a telephonic hearing 20

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

T he IJ stated that the hearing would be adjourned to September 224 24 , and confirmed the date and location with Duncan, and 1

Duncan indicated that he underst ood . A hearing notice was 2
sent to his attorney, who attended the September 24 hearing. 3

Because Duncan received both oral notice directly and written 4
notice through his attorney, he failed to show lack of notice. 5

See 8 U.S.C. § 1229a(b)(5) (A) (“Any alien who, after written 6
notice . . . has been provided to the alien or the alien’s 7
counsel of record, does not attend a proceeding under this 8

section, shall be orde red removed in absentia . . . . ”)

. 9
Accordingly, the BIA did not abuse its discretion by declining 10
to rescind Duncan’s deportation order

. See Ke Zhen Zhao v. 11
U.S. Dep’t of Justice , 265 F.3d 83, 93 (2d Cir. 2001) (“A n 12
abuse of discretion may be found

. . . where the Board ’ s 13
decision provides no rational explanation, inexplicably 14
departs from established policies, is devoid of any 15
reasoning, or contains only summary or conclusory statements; 16
that is to say, where the Board has acted in an arbitrary or 17
capricious manner. ” (internal citations omitted)). 18
Duncan argues that the BIA abused its discretion by 19
faulting him for not arguing lack of notice in his pro se 20

appeal of the in absentia order in 1990. However, Duncan’s 21
only statements in his appeal were that he was recovering 225 from drug addiction, and he wanted his criminal case dismissed 1
and to remain with his children. Accordingly, the BIA did 2
not misstate the record. Moreover, Duncan has not alleged 3

how this statement shows error in the BIA’s decision: 4
reopening required either a showing of lack of no tice , as 5

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

which , as discussed below , did not happen

. 7
Motion to Reopen 8

A “ motion to reopen deportation or exclusion proceedings 9
(whether before the Board or the Immigration Judge)

. . . 10
must be filed no later than 90 days after the date on which 11

the final administrative decision was rendered in the 12
proceeding sought to be reopened, or on or before September 13

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

also 8 U.S.C. § 1229 a(c)(7)(C)(i)

. It is undisputed that 15
Duncan’s June 2018 motion to reopen, filed over two decades 16

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

absentia order , was untimely. Although the time for filing 18
may be tolled for ineffective assistance of counsel, Duncan 19

did not raise such a claim and would have had to establish 20
that he diligently pursued his ineffective assistance claim 21
during t he more than two

- decade period he would have to toll. 226 See Rashid v. Mukasey , 533 F.3d 127, 130 , 132

– 33 (2d Cir. 1

2008) (petitioner who waited a year and a half after adverse 2
BIA decision did not demonstrate due diligence). Duncan’s 3
purported eligibility for a waiver of deportation does not 4
implicate any exception to the time limit for filing a motion 5

to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii) (providing 6
exception for asylum applications based on changed 7
conditions); 8 C.F.R. § 1003.2(c)(3) (listing exceptions) ; 8

cf. Matter of Yauri , 25 I. & N. Dec. 103, 105 (B

. I

. A

. 2009) 9
(emphasizing “that untimely motions to reopen to pursue an 10
application for adjustment of status . . . do not fall within 11
any of the statutory or regulatory exceptions to the time 12
limits for motions to reopen”). 13

Motion to Re consider 14
The BIA did not abuse its discretion in denying the 15

motion to reconsider. A motion for reconsideration must 16
specify errors of fact or law in the BIA’s decision and be 17
supported with pertinent authority. See 8 C.F.R. 18

§ 1003.2(b)(1). As discussed above, the BIA did not err in 19
declining to rescind the in absentia order or reopen 20
proceedings. 21

227 Duncan argues that reconsideration is warranted because 1
his due process rights were violated during his 1990 hearings. 2

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

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

in his motion to reconsider the 2018 denial of reopening

. 5

See 8 C.F.R. § 1003.2(b)(2) (a motion to reconsider must be 6
filed within 30 days after the mailing of the BIA decision). 7
Sua Sponte Reopening 8

Lastly, while a motion asking the agency to exercise its 9
sua sponte authority to reopen may be granted outside any 10
time period for filing motions to rescind or reopen, see 8 11

C.F.R. § 1003.2(a) , we lack jurisdiction to review a decision 12
declining to reopen sua sponte, see Ali v. Gonzales , 448 F.3d 13

515, 518 (2d Cir. 2006). Although we may remand if the agency 14
“misperceived the legal background and thought, incorrectly, 15
that a reopening would necessarily fail , ” Mahmood v. Holder , 16

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

the law or even address Duncan’s eligibility for relief, it 18
simply found no exceptional circumstances warranting 19
reopening

. 20

21

228 For the foregoing reasons, the petition s for review are 1

DENIED

. All pending motions and applications are DENIED and 2

stays VACATED. 3

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