Filed: Feb. 18, 2014
Latest Update: Mar. 02, 2020
Summary: 12-4389 Ezquivel v. Holder BIA Laforest, IJ A075 814 820 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 TH
Summary: 12-4389 Ezquivel v. Holder BIA Laforest, IJ A075 814 820 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..
More
12-4389
Ezquivel v. Holder
BIA
Laforest, IJ
A075 814 820
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 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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 18th day of February, two thousand fourteen.
5
6
7 PRESENT:
8 REENA RAGGI,
9 DEBRA ANN LIVINGSTON,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _____________________________________
13
14 JOSE DE JESUS EZQUIVEL,
15 Petitioner,
16
17 v. 12-4389
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jon E. Jessen, Law Offices of Jon E.
25 Jessen, LLC, Stamford, Connecticut.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; Stephen J. Flynn,
29 Assistant Director; Jeffrey R.
30 Meyer, Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4 UPON DUE CONSIDERATION of this petition for review of a
5 decision of the Board of Immigration Appeals (“BIA”), it is
6 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
7 review is DENIED.
8 Jose De Jesus Ezquivel, a native and citizen of Mexico,
9 seeks review of an October 2, 2012, decision of the BIA,
10 affirming the May 17, 2011, decision of Immigration Judge
11 (“IJ”) Brigitte Laforest denying his motion to reconsider
12 the denial of his motion to reopen and rescind. In re Jose
13 De Jesus Ezquivel, No. A075 814 820 (B.I.A. Oct. 2, 2012),
14 aff’g No. A075 814 820 (Immig. Ct. N.Y. City May 17, 2011).
15 We assume the parties’ familiarity with the underlying facts
16 and procedural history of this case.
17 Because Ezquivel petitions for review of the denial of
18 a motion to reconsider, but not from the underlying decision
19 for which reconsideration was sought, we have reviewed only
20 the denial of his motion to reconsider. See Ke Zhen Zhao v.
21 U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).
22 Under the circumstances of this case, we have reviewed both
23 the IJ’s and the BIA’s opinions “for the sake of
2
1 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2 2008). We review the agency’s denial of a motion to
3 reconsider for abuse of discretion. See Jin Ming Liu v.
4 Gonzales,
439 F.3d 109, 111 (2d Cir. 2006).
5 Here, Esquivel argues that the agency abused its
6 discretion in affirming the IJ’s underlying denial of his
7 motion to rescind his in absentia removal order. He contends
8 that he demonstrated that the time limitation for filing his
9 motion should have been equitably tolled based on his
10 ineffective assistance of counsel claim. It is undisputed
11 that Ezquivel’s 2011 motion to rescind was untimely as it
12 was filed more than 180 days after the IJ’s 2007 in absentia
13 removal order. See 8 U.S.C. § 1229a(b)(5)(C)(i). Esquivel
14 does not argue that he never received notice of his removal
15 hearing, nor that he was in custody at the time of the
16 proceeding. See 8 U.S.C. § 1229a(b)(5)(C)(ii). Thus, an IJ
17 could have reopened Esquivel’s case only if the court tolled
18 the time that elapsed from the date of his removal order to
19 the date of Esquivel’s motion to reopen.
20 In order to warrant equitable tolling, even assuming
21 that prior counsel was ineffective, an alien is required to
22 demonstrate “due diligence” in pursuing his claim during
3
1 “both the period of time before the ineffective assistance
2 of counsel was or should have been discovered and the period
3 from that point until the motion to reopen is filed.”
4 Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008); see
5 also Cekic v. INS,
435 F.3d 167, 170 (2d Cir. 2006). The
6 agency did not err in finding that Ezquivel failed to
7 demonstrate due diligence because the record indicates that,
8 although he knew of the bases for his ineffective assistance
9 claim by at least 2007, he did not take any action in his
10 removal proceedings until filing his motion in 2011. See
11 Jian Hua Wang v. BIA,
508 F.3d 710, 715 (2d Cir. 2007);
12
Cekic, 435 F.3d at 171. Accordingly, because the IJ did not
13 abuse her discretion in denying Ezquivel’s motion to rescind
14 as untimely, the agency did not err in declining to
15 reconsider that decision. See 8 U.S.C. § 1229a(b)(5)(C);
16 8 C.F.R. § 1003.23(b)(4)(ii).
17 For the foregoing reasons, the petition for review is
18 DENIED.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
4
