14-3065 

Kabba v. Lynch 

BIA 

Sichel, IJ 

A073 552 586 

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 for 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

9th day of February, two thousand sixteen. 

PRESENT: 

RICHARD C. WESLEY,

PETER W. HALL, 

CHRISTOPHER F. DRONEY,

Circuit Judges. 

_____________________________________ 

ALHAGIE KABBA, AKA ISSA DIAKHITE, 

 Petitioner, 

v. 14-3065 

 NAC 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Michael P. DiRaimondo, Melville, New 

 York. 

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General; Ernesto 

H. Molina, Jr., Assistant Director; 

Andrew N. O’Malley, Trial Attorney, 
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Office of Immigration Litigation, 

United States Department of Justice, 

Washington, D.C. 

UPON DUE CONSIDERATION of this petition for review of a 

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

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

DENIED. 

 Petitioner Alhagie Kabba, who claims to be a native and 

citizen of Mauritania, seeks review of a July 25, 2014, decision 

of the BIA affirming a December 16, 2013, decision of an 

Immigration Judge (“IJ”) denying Kabba’s motion to rescind his 

in absentia deportation order and reopen his proceedings. In 

re Alhagie Kabba, No. A073 552 586 (B.I.A. July 25, 2014), aff’g

No. A073 552 586 (Immig. Ct. N.Y. City Dec. 16, 2013). We assume 

the parties’ familiarity with the underlying facts and 

procedural history in this case. 

 As a preliminary matter, motions to reopen deportation 

proceedings in which an alien was ordered deported in absentia

are governed by different rules depending on whether the movant 

seeks to rescind the in absentia deportation order or present 

new evidence of his eligibility for relief. See Song Jin Wu 

v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-, 22 I. & 

N. Dec. 349, 353-55 (B.I.A. 1998) (en banc). When, as here, 
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an alien files a motion that seeks both rescission of an in 

absentia deportation order as well as reopening of deportation 

proceedings based on new evidence, we treat the motion as 

comprising distinct motions to rescind and to reopen. See 

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

Maghradze v. Gonzales, 462 F.3d 150, 152 n.1 (2d Cir. 2006). 

 Under the circumstances of this case, we consider both the 

IJ’s and the BIA’s opinions “for the sake of completeness.” 

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 

2006). We review the denial of a motion to rescind an in 

absentia deportation order under the same abuse of discretion 

standard applicable to motions to reopen. See Alrefae, 471 

F.3d at 357. 

A. Motion to Rescind 

 “An order entered in absentia in deportation proceedings 

may be rescinded only upon a motion to reopen filed: (1) Within 

180 days after the date of the order of deportation if the alien 

demonstrates that the failure to appear was because of 

exceptional circumstances beyond the control of the alien 

(e.g., serious illness of the alien or serious illness or death 

of an immediate relative of the alien, but not including less 

compelling circumstances); or (2) At any time if the alien 
4 

demonstrates that he or she did not receive notice . . ..” 

8 C.F.R. § 1003.23(b)(4)(iii)(A). Kabba argues that, while he 

was personally served notice of his hearing, he had no actual 

notice because he could not read or write English. As the BIA 

noted, however, there is no requirement that notices to appear 

be provided in an alien’s native language. See Lopes v. 

Gonzales, 468 F.3d 81, 85 (2d Cir. 2006). Because Kabba 

received notice of his hearing, his motion to rescind was 

subject to the 180-day time limit. See 8 C.F.R. 

§ 1003.23(b)(4)(iii)(A). 

 It is undisputed that Kabba’s 2013 motion to rescind was 

untimely filed because the IJ’s in absentia deportation order 

was issued more than 17 years earlier in 1996. See 8 C.F.R. 

§ 1003.23(b)(4)(iii)(A)(1). Kabba argues that his 

interpreter’s failure to tell him that his hearing notice 

provided the date and time of a hearing was akin to ineffective 

assistance of counsel, which qualifies as an “exceptional 

circumstance” to toll the time period for filing his motion. 

Even assuming that his interpreter’s actions qualified as 

“exceptional circumstances”, Kabba was required to demonstrate 

“due diligence” in pursuing his claim during “both the period 

of time before the ineffective assistance of counsel was or 
5 

should have been discovered and the period from that point until 

the motion to reopen is filed.” Rashid v. Mukasey, 533 F.3d 

127, 132 (2d Cir. 2008); see also Cekic v. INS, 435 F.3d 167, 

170 (2d Cir. 2006) (requiring an alien to demonstrate due 

diligence independent from the requirement of demonstrating 

ineffective assistance of former counsel). We have noted that, 

in considering whether a petitioner exercised due diligence, 

“there is no period of time which we can say is per se 

unreasonable, and, therefore, disqualifies a petitioner from 

equitable tolling–or, for that matter, any period of time that 

is per se reasonable.” Jian Hua Wang v. BIA, 508 F.3d 710, 715 

(2d Cir. 2007). 

 The agency reasonably found that Kabba failed to 

demonstrate that he exercised due diligence. He did not take 

any action in his deportation proceedings for more than 16 years 

from receipt of his hearing notice in 1996 until 2012. See id.

(providing that the “petitioner bears the burden of proving that 

he has exercised due diligence” and citing several cases in 

which the Court held that “a petitioner who waits two years or 

longer to take steps to reopen a proceeding ha[d] failed to 

demonstrate due diligence”). Further, we will not consider in 

the first instance Kabba’s assertion that he had no knowledge 
6 

of the in absentia deportation order until 2012. See Lin Zhong 

v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007). We 

note, however, that he was required to show diligence from the 

time the ineffective assistance “should have been[] discovered 

by a reasonable person in the situation,” Jian Hua Wang, 508 

F.3d at 715, a time that commenced well before 2012. 

B. Motion to Reopen 

 The BIA also did not abuse its discretion in denying Kabba’s 

motion to reopen as untimely. Aliens seeking to reopen 

proceedings may file a motion to reopen no later than 90 days 

after the date on which the final administrative decision was 

rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 

§ 1003.23(b)(1). First, there was no dispute that Kabba’s 2013 

motion was untimely filed more than 17 years after his 1996 

deportation order. See 8 U.S.C. § 1229a(c)(7)(C)(i). 

 The time period for filing a motion to reopen may be tolled 

by the ineffective assistance of counsel. See Rashid, 533 F.3d 

at 130. As the BIA concluded, however, Kabba’s ineffective 

assistance claim as to his former attorney who filed his first 

motion to reopen in 2012 was not relevant to the tolling analysis 

as the claim had no bearing on the time period from 1996 until 
7 

2012, (which, as discussed above, had not otherwise been 

tolled). 

 Although a motion asking the agency to exercise its 

authority to reopen sua sponte may be granted outside the 90-day 

period for moving to reopen, see 8 C.F.R. § 1003.23(b)(1), we 

lack jurisdiction to review a decision declining to reopen sua 

sponte, Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). 

Kabba has not asserted that the agency misperceived the law in 

declining to reopen sua sponte, Mahmood v. Holder, 570 F.3d 466, 

469 (2d Cir. 2009), and the record does not support Kabba’s 

contention that the IJ’s discretionary decision was tainted by 

his former attorney’s false statements in his first motion to 

reopen given her explicit reliance on Kabba’s false statements 

made independent of his former attorney. Accordingly, we are 

without jurisdiction to consider the denial of his motion to 

this extent. See id. 

 For the foregoing reasons, the petition for review is 

DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk