1 

13‐4031

Ahir v. Lynch

BIA

                 Morace, IJ

A074 234 930

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 for the Second

2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 6 3 th day of December, two thousand

4 sixteen.

5 

6 PRESENT: PIERRE N. LEVAL,

7 RAYMOND J. LOHIER, JR.,

8      Circuit Judges,

9     EDWARD R. KORMAN,

10      District Judge.*

11 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 

12 

13 RAXABEN AHIR,

14 Petitioner,      

15 

16 v.     No. 13‐4031

17 

18 

19 LORETTA E. LYNCH, UNITED STATES ATTORNEY

 

* Judge Edward R. Korman, United States District Court for the Eastern District of

New York, sitting by designation.   
2 

1 GENERAL,

2      Respondent.**   

3 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 

4 FOR PETITIONER:     Garish Sarin, Los Angeles, CA.

5 

6 FOR RESPONDENT:     Stuart F. Delery, Assistant Attorney

7 General; Jennifer Williams, Senior

8 Litigation Counsel; Stuart S. Nickum,

9 Trial Attorney; Kate Scanlan, Law

10 Clerk; Office of Immigration

11 Litigation, United States Department

12 of Justice, Washington, D.C.    

13 

14 UPON DUE CONSIDERATION of this petition for review of a Board of

15 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,

16 AND DECREED that the petition for review is GRANTED in part and DENIED in

17 part.

18 Petitioner Raxaben Ahir, a native and citizen of India, seeks review of a

19 September 27, 2013 decision of the BIA affirming the July 30, 2012 decision of an

20 Immigration Judge, which denied her motion to rescind an order of exclusion

21 and, in the alternative, to reopen proceedings.    In re Raxaben Ahir, No. A074 234

22 930 (B.I.A. Sept. 27, 2013), aff’g No. A074 234 930 (Immigr. Ct. N.Y.C. July 30,

23 2012).    We assume the parties’ familiarity with the underlying facts and

 

** The Clerk of Court is directed to amend the official caption to conform with the

above.   
3 

1 procedural history in this case, to which we refer only as necessary to explain our

2 decision to grant the petition in part and deny it in part.   

3 We consider both the IJ’s and the BIA’s decisions “for the sake of

4 completeness,” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (quotation

5 marks omitted), and review the agency’s denial of a motion to reopen for abuse of

6 discretion, Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).    The BIA rejected

7 Ahir’s claim that the ineffective assistance of counsel excused her failure to

8 appear at the December 11, 1995 hearing.    It did so on the ground that Ahir “has

9 not presented evidence that [the person she alleged was her attorney] actually

10 represented her.”    We conclude that the BIA abused its discretion.    Contrary to

11 the BIA’s determination, Ahir filed a declaration with her motion to reopen that

12 included allegations about her counsel’s representation.    We therefore grant

13 Ahir’s petition for review of the BIA’s denial of her motion to reopen.   

14 We turn next to the denial of Ahir’s motion to rescind the in absentia

15 exclusion order.    The BIA applied an incorrect standard in treating Ahir’s motion

16 to rescind as subject to a 180‐day time limitation and denying the motion on the

17 ground that it was time‐barred.    An alien who moves to rescind an order of

18 exclusion issued in absentia faces no time limit on that motion.    In re: N‐B‐, 22 I.
4 

1 & N. Dec. 590, 593 (B.I.A. 1999); see 8 C.F.R. § 1003.23(b)(4)(iii)(B).    But we

2 conclude that Ahir failed to exhaust the issue of whether the BIA applied the

3 correct standard.    Ahir has never challenged the BIA’s error, declining to raise

4 the issue before the BIA and even before this Court.    And in evaluating the

5 timeliness of Ahir’s motion to rescind, the agency has never considered whether

6 Ahir had “reasonable cause” for her failure to appear at the initial hearing.    8

7 C.F.R. § 1003.23(b)(4)(iii)(B); see Waldron v. I.N.S., 17 F.3d 511, 515 n.7 (2d Cir.

8 1993).    Because Ahir failed to exhaust this issue and the BIA did not address it

9 sua sponte, we do not consider it.    Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,

10 107 n.1 (2d Cir. 2007); Foster v. INS, 376 F.3d 75, 77‐78 (2d Cir. 2004); see also

11 Zhang v. Gonzales, 426 F.3d 540, 542 n.7 (2d Cir. 2005) (“Issues not sufficiently

12 argued in the briefs are considered waived and normally will not be addressed on

13 appeal.”) (quotation marks omitted).    

14 For the foregoing reasons, the petition for review is GRANTED in part and

15 DENIED in part.   

16     FOR THE COURT:

17     Catherine O’Hagan Wolfe, Clerk of Court