Opinion
No. 10-1225-ag.
April 12, 2011.
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.
Jaime Jasso, Westlake Village, CA, for petitioner.
Tony West, Assistant Attorney General, Civil Division; Ada E. Bosque, Senior Litigation Counsel; Jonathan Robbins, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for respondent.
PRESENT: ROBERT A. KATZMANN, DEBRA ANN LIVINGSTON, RAYMOND J. LOHIER, JR., Circuit Judges.
SUMMARY ORDER
Petitioner Sunil Kumar Jassi, a native and citizen of India, seeks review of the April 2, 2010, order of the BIA, affirming the December 17, 2009, decision of Immigration Judge ("IJ") Barbara A. Nelson, which denied his motion to rescind. In re Sunil Kumar Jassi No. A072 048 960 (B.I.A. Apr. 2, 2010), affg No. A072 048 960 (Immig. Ct. N.Y. City Dec. 17, 2009). We assume the parties' familiarity with the underlying facts and procedural history of the case.
We review the denial of a motion to rescind an in absentia order for abuse of discretion. See Alrefae v. Chertoff, ill F.3d 353, 357 (2d Gir.2006); see also Kaur v. BIA 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). The agency's regulations provide that, although motions to rescind in absentia orders in exclusion proceedings are not subject to time or numerical limitations, to obtain rescission an alien must demonstrate that he had reasonable cause for his failure to appear. See 8 C.F.R. § 1003.23(b)(4)(iii)(B); Matter of N-B-, 22 I. N. Dec. 590, 591 (B.I.A. 1999).
Contrary to Jassi's argument that the agency did not take his affidavit into account in reaching its decision, both the IJ and the BIA referred te the claims Jassi made in his affidavit in their decisions on the motion. See Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 338 n. 17 (2d Cir. 2006) ("[W]e presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise."); see also Wei Guang Wang v. BIA 437 F.3d 270, 275 (2d Cir. 2006) (holding that the BIA does not abuse its discretion by giving summary consideration to evidence presented in a motion to reopen).
Jassi further argues that the agency abused its discretion in reaching a decision based solely on a finding that he failed to exercise due diligence, because he successfully demonstrated that he failed to appear for his May 1997 hearing due to ineffective assistance of counsel, and he adequately explained why he waited over 12 years to move to reopen his proceedings. This argument is unpersuasive.
Although Jassi was in exclusion proceedings, and thus the usual 90-day time limit on motions to reopen did not apply, see 8 C.F.R. § 1003.23(b)(4)(iii)(D), the BIA was not foreclosed from denying the motion as a matter of discretion due to Jassi's lack of due diligence. The agency's ultimate decision regarding whether to rescind an in absentia exclusion order under 8 C.F.R. § 1003.23 is discretionary. See Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005); see also Luna v. Holder , 637 F.3d 85, 95-96 (2d Cir. 2011) (noting the different treatment this Court has accorded to statutory motions to reopen versus regulatory motions to reopen, the latter of which are discretionary). Here, the BIA did not abuse its discretion, as it provided a rational explanation for denying the motion — the 12-year delay in filing. See Ke Zhen Zhao v. U.S. Dep't of Justice , 265 F.3d 83, 93 (2d Cir. 2001); see also, e.g., Zhao Quan Chen v. Gonzales , 492 F.3d 153, 155 (2d Cir. 2007) (three-year delay suggested lack of diligence); Cekic v. INS, 435 F.3d 167, 171-72 (2d Cir. 2006) (two-year delay suggested lack of diligence); Ali v. Gonzales, 448 F.3d 515, 516-17 n. 2 (2d Cir. 2006) (eleven-year delay suggested lack of diligence).
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).