Ahir v. Lynch
Opinion of the Court
SUMMARY ORDER
Petitioner Raxaben Ahir, a native and citizen of India, seeks review of a September 27, 2013 decision of the BIA affirming the July 30, 2012 decision of an Immigration Judge, which denied her motion to rescind an order of exclusion and, in the alternative, to reopen proceedings. In re Raxaben Ahir, No. A074 234 930 (B.I.A. Sept. 27, 2013), aff'g No. A074 234 930 (Immigr. Ct. N.Y.C. July 30, 2012). We assume the parties’ familiarity with the underlying facts and procedural history in this case, to which we refer only as necessary to explain our decision to grant the petition in part and deny it in part.
We turn next to the denial of Ahir’s motion to rescind the in absentia exclusion order. The BIA applied an incorrect standard in treating Ahir’s motion to rescind as subject to a 180-day time limitation and denying the motion on the ground that it was time-barred. An alien who moves to rescind an order, of exclusion issued in absentia faces no time limit on that motion. In re: N-B-, 22 I. & N. Dec. 590, 593 (B.I.A. 1999); see 8 C.F.R. § 1003.23(b)(4)(iii)(B). But we conclude that Ahir failed to exhaust the issue of whether the BIA applied the correct standard. Ahir has never challenged the BIA’s error, declining to raise the issue before the BIA and even before this Court. And in evaluating the timeliness of Ahir’s motion to rescind, the agency has never considered whether Ahir had “reasonable cause” for her failure to appear at the initial hearing, 8 C.F.R. § 1003.23(b)(4)(iii)(B); see Waldron v. I.N.S., 17 F.3d 511, 515 n.7 (2d Cir. 1993). Because Ahir failed to exhaust this issue and the BIA did not address it sua sponte, we do not consider it. Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007); Foster v. I.N.S., 376 F.3d 75, 77-78 (2d Cir. 2004); see also Zhang v. Gonzales, 426 F.3d 540, 542 n.7 (2d Cir. 2005) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”) (quotation marks omitted).
For the foregoing reasons, the petition for review is GRANTED in part and DENIED in part.
Reference
- Full Case Name
- Raxaben AHIR v. Loretta E. LYNCH, United States Attorney General
- Status
- Published