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 

New York, on the 20th 4 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 
2

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.
3

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 
4

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 
5

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. 
6

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
7

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
8

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