15-2133 

Lewis v. Lynch 

BIA 

Cheng, IJ 

A095 989 875 

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 

19th day of October , two thousand sixteen. 

PRESENT: 

RALPH K. WINTER,

ROSEMARY S. POOLER, 

DEBRA ANN LIVINGSTON,

 Circuit Judges. 

_____________________________________ 

WAYNE LEWIS, 

 Petitioner, 

v. 15-2133 

 NAC 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Audrey A. Thomas, Rosedale, New 

 York. 

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General; John W. 

Blakeley, Assistant Director; W. 

Daniel Shieh, Trial Attorney, Office 

of Immigration Litigation, United 

States Department of Justice, 

Washington, D.C. 
2

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 Wayne Lewis, a native and citizen of Trinidad 

and Tobago, seeks review of a June 3, 2015, decision of the BIA 

affirming a September 9, 2014, decision of an Immigration Judge 

(“IJ”) denying Lewis’s motion to rescind his removal order 

entered in absentia. In re Wayne Lewis, No. A095 989 875 

(B.I.A. June 3, 2015), aff’g No. A095 989 875 (Immig. Ct. N.Y. 

City Sept. 9, 2014). We assume the parties’ familiarity with 

the underlying facts and procedural history in this case. 

 We have reviewed the IJ’s decision as supplemented by the 

BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 

We review the agency’s denial of a motion to rescind for abuse 

of discretion. See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d 

Cir. 2006). An order of removal entered in absentia “may be 

rescinded only--(i) upon a motion to reopen filed within 180 

days after the date of the order of removal if the alien 

demonstrates that the failure to appear was because of 

exceptional circumstances . . ., or (ii) upon a motion to reopen 
3

filed at any time if the alien demonstrates that the alien did 

not receive notice . . . and the failure to appear was through 

no fault of the alien.” 8 U.S.C. § 1229a(b)(5)(C). Because 

Lewis’s attorney of record had notice of his October 2010 

hearing, his motion to rescind the IJ’s removal order entered 

in absentia at that hearing was subject to the 180-day time 

limit, and he was required to demonstrate that exceptional 

circumstances excused his failure to appear. See 8 U.S.C. 

§ 1229a(b)(5)(C); Song Jin Wu v. INS, 436 F.3d 157, 162 (2d Cir. 

2006). 

 It is undisputed that Lewis’s 2014 motion to rescind was 

untimely filed more than three years after his 2010 removal 

order. See 8 U.S.C. § 1229a(b)(5)(C)(i). Equitable tolling 

of the time to file may be available for claims of ineffective 

assistance of counsel. See Cekic v. INS, 435 F.3d 167, 170 (2d 

Cir. 2006). The agency did not err in finding no basis for 

tolling. 

 In order to warrant tolling, an alien is required to 

demonstrate “due diligence” in pursuing his claim during “both 

the period of time before the ineffective assistance of counsel 

was or should have been discovered and the period from that point 
4

until the motion to reopen is filed.” Rashid v. Mukasey, 533 

F.3d 127, 132 (2d Cir. 2008); see also Cekic, 435 F.3d at 170. 

Lewis failed to demonstrate due diligence. He did not assert 

that he took any action in his case during the more than three 

years that passed between the IJ ordering him removed in 

absentia in October 2010 and his filing of a motion to rescind 

in April 2014. See Jian Hua Wang v. BIA, 508 F.3d 710, 715-16 

(2d Cir. 2007). Lewis’s separate claim that he failed to appear 

due to illness provides no ground for equitable tolling. 

 For the foregoing reasons, the petition for review is 

DENIED. As we have completed our review, any stay of removal 

that the Court previously granted in this petition is VACATED, 

and any pending motion for a stay of removal in this petition 

is DISMISSED as moot. Any pending request for oral argument 

in this petition is DENIED in accordance with Federal Rule of 

Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

34.1(b). 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk