Pursuant to Federal Rule of Appellate Procedure 1 43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted for former Attorney General Michael B. Mukasey. 08-3252-ag (L); 08-4061-ag (Con) Yu v.Holder BIA Hom, IJ A029 125 873 

### UNITED STATES COURT OFAPPEALS FOR THE SECOND CIRCUIT 

# SUM MARY 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 21 day of April, two thousand ten. st 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 GUIDO CALABRESI, 10 DEBRA ANN LIVINGSTON, 11 Circuit Judges . 12

_______________________________________ 13 14 JHEN SHING YU, aka HERAWAN SANUSI, 15 aka JIAN XIN YU, 16 Petitioner , 17 18 v. 08-3252-ag (L); 19 08-4061-ag (Con) 20 NAC 21 ERIC H. HOLDER JR., UNITED STATES 22 ATTORNEY GENERAL, 1 23 Respondent . 24

_______________________________________2 1 FOR PETITIONER: Theodore N. Cox, New York, New York. 2 3 FOR RESPONDENT: Michael F. Hertz, Acting Assistant 4 Attorney General; Emily Anne 5 Radford, Assistant Director; Aviva 6 L. Poczter, Senior Litigation 7 Counsel, Office of Immigration 8 Litigation, United States Department 9 of Justice, Washington, D.C. 10 1 1 UPON DUE CONSIDERATION of these consolidated petitions 1 2 for review of two Board of Immigration Appeals (“BIA”) 1 3 decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that 1 4 the petitions for review are DENIED. 1 5 Petitioner Jhen Shing Yu, a native and citizen of the 1 6 People’s Republic of China, seeks review of: (1) the June 1 7 24, 2008, order of the BIA denying his appeal of an 1 8 Immigration Judge’s (“IJ’s”) April 2, 2008, order denying 1 9 his motion to reopen, In re Jhen Shing Yu , No. A029 125 873 2 0 (B.I.A. June 24, 2008), aff’gNo. A029 125 873 (Immig. Ct. 2 1 N.Y. City Apr. 2, 2008); and (2) the August 8, 2008, order 2 2 of the BIA denying his subsequent motion to reopen, In re 23 Jhen Shing Yu , No. A029 125 873 (B.I.A. Aug. 08, 2008). We 2 4 assume the parties’ familiarity with the underlying facts 2 5 and procedural history in this case. 2 6 We review the BIA’s denial of a motion to reopen for 2 7 abuse of discretion. See Kaur v. BIA , 413 F.3d 232, 233 (2d3 1 Cir. 2005) (per curiam). There is no dispute that Yu’s 2 March and July 2008 motions to reopen were untimely and 3 number-barred because he was ordered excluded in absentiain 4 June 1993. See 8 C.F.R. § 1003.2(c)(2) (providing that an 5 alien seeking to reopen proceedings may file one motion to 6 reopen no later than 90 days after the date on which the 7 final administrative decision was rendered). However, there 8 is no time limit for motions to reopen either alleging 9 asylum eligibility based on changed country conditions, see 1 0 8 C.F.R. § 1003.2(c)(3)(ii); see also8 U.S.C. 1 1 § 1229a(c)(7)(C)(ii), or seeking rescission of an in 12 absentia exclusion order based on “reasonable cause” for the 1 3 failure to appear, see8 C.F.R. § 1003.23(b)(4)(iii)(B). 14 I. Dkt. No. 08-3252-ag (L) 1 5 Motions to reopen in absentiaorders are governed by 1 6 different rules depending on whether the movant seeks to 1 7 rescind the order or present new evidence. See Song Jin Wu 18 v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-, 22 I. 1 9 & N. Dec. 349, 353-55 (BIA 1998) (en banc). Accordingly, 2 0 when, as here, an alien files a motion that seeks both 2 1 rescission of an in absentiaexclusion order, as well as 2 2 reopening of proceedings based on new evidence, the Court4 1 treats the motion as comprising distinct motions to rescind 2 and to reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d 3 Cir. 2006); see also Maghradze v. Gonzales, 462 F.3d 150, 4 152 n.1 (2d Cir. 2006). 5 A. Motion to Rescind 6 In order to reopen exclusion proceedings, an alien must 7 establish that he had “reasonable cause” for his absence 8 from the proceedings. See Matter of Haim , 19 I. & N. Dec. 9 641, 642 (BIA 1988). Failure to receive notice can 1 0 constitute such reasonable cause. 8 C.F.R. § 1 1 1003.23(b)(4)(iii). 1 2 In his March 2008 motion to reopen, Yu claimed that his 1 3 attorney never informed him of his hearing because the 1 4 attorney himself did not receive notice. The BIA rejected 1 5 that argument, finding that notice had been properly served 1 6 by certified mail to the address counsel had provided. 1 7 Before this Court, Yu does not challenge the BIA’s finding 1 8 that notice to his attorney constituted notice to him. See 19 Song Jin Wu , 436 F.3d at 162 (finding that notice to an 2 0 alien’s attorney of record constitutes notice to the alien). 2 1 Rather, Yu asserts that his counsel never informed him of 2 2 his hearing date, which established “reasonable cause” for5 1 his absence. However, as the BIA indicated, Yu’s March 2008 2 motion to rescind did not claim ineffective assistance of 3 counsel. Instead, Yu argued in that motion that former 4 counsel also never received notice, an argument he has 5 abandoned. The BIA did not abuse its discretion in denying 6 Yu’s March 2008 motion to rescind. See id. 7 B. Motion to Reopen 8 1. Adjustment of Status 9 The BIA also reasonably declined to reopen Yu’s 1 0 proceedings to allow him to pursue adjustment of status. 1 1 Under the controlling regulation, 8 C.F.R. § 245.2 (2006), 1 2 United States Citizenship and Immigration Services (“USCIS”) 1 3 has sole jurisdiction to adjudicate an adjustment of status 1 4 application, with limited exceptions not relevant here. Yu 1 5 relies on our decision in Sheng Gao Ni v. BIA , 520 F.3d 125, 1 6 130 (2d Cir. 2008), to argue that the agency erred in 1 7 finding that it lacked jurisdiction over his adjustment of 1 8 status application. However, Yu’s reliance on Sheng Gao Ni 1 9 is misplaced, because that case involved timely motions to 2 0 reopen. Id. Because Yu’s motion was untimely, the agency 2 1 did not err in finding that it lacked jurisdiction to review 2 2 his adjustment of status application. See 8 C.F.R. § 245.2;6 1 see also8 U.S.C. § 1229a(c)(7)(C)(ii). 2 2. Changed Country Conditions 3 The BIA also did not abuse its discretion in finding 4 that Yu failed to demonstrate changed country conditions 5 excusing the time and numerical limitations for filing his 6 motion based on the birth of his two children in the United 7 States. See 8 C.F.R. § 1003.2(c)(3)(ii); see also Wei Guang 8 Wang v. BIA , 437 F.3d 270, 273-274 (2d Cir. 2006); Li Yong 9 Zheng v. U.S. Dep’t of Justice , 416 F.3d 129, 130-31 (2d 1 0 Cir. 2005) (per curiam). Yu argues that the BIA failed to 1 1 properly consider the evidence that he submitted. However, 1 2 we have rejected the notion that the agency must “expressly 1 3 parse or refute on the record each individual argument or 1 4 piece of evidence offered by the petitioner,” Jian Hui Shao 15 v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008), and “presume 1 6 that [the agency] has taken into account all of the evidence 1 7 before [it], unless the record compellingly suggests 1 8 otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 1 9 315, 336 n.17 (2d Cir. 2006). Here, the record does not 2 0 compel the conclusion that the BIA failed to consider the 2 1 evidence Yu submitted. See Jian Hui Shao , 546 F.3d at 169- 2 2 72 (noting that “[w]e do not ourselves attempt to resolve7 1 conflicts in record evidence, a task largely within the 2 discretion of the agency”); see also Wei Guang Wang, 437 3 F.3d at 275 (noting that while the BIA must consider 4 evidence such as “the oft-cited Aird affidavit, which [it] 5 is asked to consider time and again[,] . . . it may do so in 6 summary fashion without a reviewing court presuming that it 7 has abused its discretion”). 8 II. 08-4061-ag (Con) 9 In some circumstances, under the doctrine of equitable 1 0 tolling, ineffective assistance of counsel can extend the filing deadline for an alien’s motion to reopen. See Cekic 11 12 v. INS , 435 F.3d 167, 171 (2d Cir. 2006). In order to 1 3 warrant equitable tolling, however, the alien is required to 1 4 demonstrate that he exercised “due diligence” in pursuing 1 5 his claims during “both the period of time before the 1 6 ineffective assistance of counsel was or should have been 1 7 discovered and the period from that point until the motion 1 8 to reopen is filed.” Rashid v. Mukasey , 533 F.3d 127, 132 1 9 (2d Cir. 2008). 2 0 The BIA did not act arbitrarily or capriciously in 2 1 concluding that Yu failed to exercise due diligence because 2 2 he waited more than fifteen years to file his March 20088 1 motion to reopen his exclusion proceedings and, further, 2 failed to assert that he received ineffective assistance of counsel until after that motion to reopen had been denied. 3 For the foregoing reasons, these petitions for review 4 5 are DENIED. As we have completed our review, any stay of 6 removal that the Court previously granted is VACATED, and 7 any pending motion for a stay of removal is DISMISSED as 8 moot. Any pending request for oral argument is DENIED in 9 accordance with Federal Rule of Appellate Procedure 1 0 34(a)(2), and Second Circuit Local Rule 34.1(b). 1 1 FOR THE COURT: 1 2 Catherine O’Hagan Wolfe, Clerk 13