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HUI CHEN v. BARR (2019)

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United States Court of Appeals, Second Circuit.

HUI CHEN, Petitioner, v. William P. BARR, United States Attorney General, Respondent.


Decided: August 30, 2019

PRESENT: JOHN M. WALKER, JR., REENA RAGGI, RAYMOND J. LOHIER, JR., Circuit Judges. FOR PETITIONER: Thomas V. Massucci, New York, NY. FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Jeffery R. Leist, Senior Litigation Counsel; Kathleen Kelly Volkert, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.


Petitioner Hui Chen, a native and citizen of the People’s Republic of China, seeks review of a May 11, 2017 decision of the BIA affirming a November 3, 2016 decision of an Immigration Judge (“IJ”) denying Chen’s motion to rescind her removal order entered in absentia and reopen her removal proceedings. In re Hui Chen, No. A078 863 122 (B.I.A. May 11, 2017), aff’g No. A078 863 122 (Immig. Ct. N.Y. City Nov. 3, 2016). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We have reviewed 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). The only ruling Chen challenges is the denial of her motion to rescind. We review the denial of a motion to rescind an in absentia removal order for abuse of discretion. See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006).

The agency did not abuse its discretion in denying Chen’s motion to rescind. An in absentia removal order “may be rescinded only-- (i) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was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 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); see 8 C.F.R. § 1003.23(b)(4)(ii). Because Chen received notice of her 2003 hearing, her motion to rescind was subject to the 180-day time limit. 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 Chen’s 2016 motion to rescind was untimely because the IJ issued the in absentia removal order more than 13 years earlier in 2003. See 8 U.S.C. § 1229a(b)(5)(C)(i). Chen argued that her prior counsel was responsible for her failure to timely appear and therefore the 180-day filing period should be tolled.

Although ineffective assistance may provide a basis for equitable tolling of the filing period, see Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006), to obtain equitable tolling, an alien is required to demonstrate “due diligence” in pursuing her 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 until the motion to reopen is filed,” Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008). The agency did not err in finding that Chen failed to establish due diligence because she knew about the alleged ineffective assistance when she filed her first motion to rescind in 2003 and did not assert that she took any action in her case for the 13 years between 2003, when the IJ denied that initial motion, and 2016, when she requested her immigration records so she could move to rescind again. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007) (placing burden on petitioner to prove due diligence). Accordingly, the agency reasonably determined that Chen failed to demonstrate due diligence, and that her ineffective assistance claim was foreclosed as a result. See Rashid, 533 F.3d at 132-33.

We do not address Chen’s challenges to the IJ’s alternative bases for rejecting her ineffective assistance of counsel claim. See INS v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”).

For the foregoing reasons, the petition for review is DENIED.

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