20

- 690 Olivia Renderos v. Garland BIA Vomacka , IJ A 206 249 706


### 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 FED**  **ERAL 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** 1 **for the Second Circuit ,**  **held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **7 t**  **h da**  **y of D**  **e c**  **e m**  **b e**  **r ,**  **two thousand twenty** 

**** 4

**one**

**.** 5 6 **PRESENT:** 7 **DENNIS JACOBS,** 8 **RAYMOND J. LOHIER, JR.,** 9 **JOSEPH F. BIANCO,** 10 **Circuit Judges.** 11

**_____________________________________** 12 13 **LEANA PATRICIA OLIVIA RENDEROS ,**  14 **Petitioner ,**  15 16

**v. 20** 

**- 690**  17 **NAC** 18 **MERRICK B. GARLAND , UNITED**  19 **STATES ATTORNEY GENERAL**  **,** 20 **Respondent**

**.** 21

**_____________________________________** 22 23 **FOR PETITIONER :**  Leana Patricia Olivia Renderos , 24
pro se, Hastings, NE

. 25 26 **FOR RESPONDENT:** Ethan P. Davis , Acting Assistant 27 Attorney General; Jessica A. 282 Dawgert , Senior Litigation 1 Counsel ; Lori B. Warlick , Trial 2 Attorney , Office of Immigration 3 Litigation , United States 4 Department of Justice, Washington, 5
D C. 6 7 UPON DUE CONSIDERATION of this petition for review of a 8

Board of Immigration Appeals (“BIA”) decision, it is hereby 9

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 10

is DENIED. 11

Petitioner Leana Patricia Olivia Renderos , a native and 12

citizen of Honduras , seeks review of a January 23, 2020 13

decision of the BIA affirming a decision of an Immigration 14

Judge (“IJ”) , which den ied Olivia Renderos’ s motion to 15

rescind her in absentia order of removal

. In re Leana 16

Patricia Olivia Renderos , No. A 206 249 706 (B.I.A. Jan. 23, 17

2020 ), aff’g No. A 206 249 706 (Immig. Ct. N.Y. City Apr. 23, 18

2018 ). We assume the parties’ familiarity with the 19

underlying facts and procedural history. 20

We have reviewed both the IJ’s and the BIA’s opinions. 21

See Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 524, 528 22

(2d Cir. 2006). We review the denial of a motion to rescind 23

an in absentia removal order for abuse of discretion. See 243 Alrefae v. Chertoff , 471 F.3d 353, 357 (2d Cir. 2006). 1

The agency did not abuse its discretion in denying Olivia 2

Renderos’s motion to rescind. An in absentia removal order 3

“may be rescinded only

. . . (i) upon a motion to reopen filed 4

within 180 days after the date of the order of removal if the 5

[movant] demo nstrates that the failure to appear was because 6

of exceptional circumstances , ” or “ (ii) upon a motion to 7

reopen filed at any time if the [movant] demonstrates that 8

[she] did not receive notice in accordance with paragraph (1) 9

or (2) of section 1229(a) .” 8 U.S.C. § 1229a(b)(5)(C); 10

8 C.F.R. § 1003.23(b)(4)(ii) ; s ee Alrefae , 471 F.3d at 35 8

. 11

The agency did not abuse its discretion in finding that 12

Olivia Renderos constructive ly received notice of her 2014 13

hearing because a hearing notice was sent to her address of 14

record , and she failed to provide a correct new address to 15

the immigration court or any other immigration authority. 16

See Maghradze v. Gonzales , 462 F.3d 150, 153 (2d Cir. 2006) 17

( “[A]liens who fail to provide a written update of a change 18

of address are deemed to have constructively received notice 19

provided in accordance with the requirements of 8 U.S.C. 20

§ 1229(a).” )

. Because Olivia Renderos constructively 214 received notice of her 2014 hearing, her motion to rescind 1

was subject to the 180

- day time limit

. S ee 8 U.S.C. 2

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

Cir. 2006). 4

Olivia Renderos ’s March 2018 motion to rescind was 5

untimely because the IJ issued the in absentia removal order 6

more than 3 years earlier , in June 20 14

. S ee 8 U.S.C. 7

§ 1229a(b)(5)(C)(i). She argue s , however, that the 180

- day 8

filing period should have been equitably toll ed

. We 9

disagree

. 10

“Equitable tolling requires a party to pass with 11

reasonable diligence though the period it seeks to have 12

tolled.” Iavorski v. U.S. INS , 232 F.3d 124, 134 (2d Cir. 13

2000) (internal quotation marks and brackets omitted) . The 14

agency reasonably found that Oli via Renderos failed to 15

establish due diligence between June 2014 when she was ordered 16

removed in absentia and March 2018 when she filed her motion 17

to rescind that order

. A side from consulting unnamed 18

attorneys in 2014 and 2015, Olivia Renderos did not allege 19

that she t ook any immediate action to pursue rescission but 20

instead waited until November 2017 to hir e counsel to file 215 her motion to rescind. See Jian Hua Wang v. BIA , 508 F.3d 1

710, 715 (2d Cir. 2007) (placing burden on petitioner to prove 2

diligence and citing several cases in which th is Court has 3

held that “a petitioner who waits two years or longer to take 4

steps to reopen . . . has failed to demonstrate due 5

diligence” ). Accordingly, Renderos’s untimely filing was not 6

excused, and we need not reach the agency’s alternative 7

determination that she failed to establish exceptional 8

circumstances. See 8 U.S.C. § 1229a(b)(5)(C); INS v. 9

Bagamasbad , 429 U.S. 24, 25 (1976) (“As a general rule courts 10

and agencies are not required to make findings on issues the 11

decision of which is unnecessary to the results they reach.”). 12

For the foregoing reasons, the petition for review is 13

DENIED. All pending motions and applications are DENIED and 14

stays VACATED. 15

FOR THE COURT: 16 Catherine O ’ Hagan Wolfe , 17 Clerk of Court 18