20-690 Olivia Renderos v. Garland BIA Vomacka, IJ A206 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 FEDERAL 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.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 27th day of December, two thousand twenty- 5 one. 6 7 PRESENT: 8 DENNIS JACOBS, 9 RAYMOND J. LOHIER, JR., 10 JOSEPH F. BIANCO, 11 Circuit Judges. 12 _____________________________________ 13 14 LEANA PATRICIA OLIVIA RENDEROS, 15 Petitioner, 16 17 v. 20-690 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Leana Patricia Olivia Renderos, 25 pro se, Hastings, NE. 26 27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 28 Attorney General; Jessica A. 1 Dawgert, Senior Litigation 2 Counsel; Lori B. Warlick, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a

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

10 ORDERED, ADJUDGED, AND DECREED that the petition for review

11 is DENIED.

12 Petitioner Leana Patricia Olivia Renderos, a native and

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

14 decision of the BIA affirming a decision of an Immigration

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

16 rescind her in absentia order of removal. In re Leana

17 Patricia Olivia Renderos, No. A206 249 706 (B.I.A. Jan. 23,

18 2020), aff’g No. A206 249 706 (Immig. Ct. N.Y. City Apr. 23,

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

20 underlying facts and procedural history.

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

22 See Wangchuck v. Dep’t of Homeland Sec.,

, 528

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

24 an in absentia removal order for abuse of discretion. See

2 1 Alrefae v. Chertoff,

(2d Cir. 2006).

2 The agency did not abuse its discretion in denying Olivia

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

4 “may be rescinded only . . . (i) upon a motion to reopen filed

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

6 [movant] demonstrates that the failure to appear was because

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

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

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

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

11

(b)(4)(ii); see Alrefae,

.

12 The agency did not abuse its discretion in finding that

13 Olivia Renderos constructively received notice of her 2014

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

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

16 the immigration court or any other immigration authority.

17 See Maghradze v. Gonzales,

(2d Cir. 2006)

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

19 of address are deemed to have constructively received notice

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

21 § 1229(a).”). Because Olivia Renderos constructively 3 1 received notice of her 2014 hearing, her motion to rescind

2 was subject to the 180-day time limit. See 8 U.S.C.

3 § 1229a(b)(5)(C); Song Jin Wu v. INS,

(2d

4 Cir. 2006).

5 Olivia Renderos’s March 2018 motion to rescind was

6 untimely because the IJ issued the in absentia removal order

7 more than 3 years earlier, in June 2014. See 8 U.S.C.

8 § 1229a(b)(5)(C)(i). She argues, however, that the 180-day

9 filing period should have been equitably tolled. We

10 disagree.

11 “Equitable tolling requires a party to pass with

12 reasonable diligence though the period it seeks to have

13 tolled.” Iavorski v. U.S. INS,

(2d Cir.

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

15 agency reasonably found that Olivia Renderos failed to

16 establish due diligence between June 2014 when she was ordered

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

18 to rescind that order. Aside from consulting unnamed

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

20 that she took any immediate action to pursue rescission but

21 instead waited until November 2017 to hire counsel to file 4 1 her motion to rescind. See Jian Hua Wang v. BIA,

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

3 diligence and citing several cases in which this Court has

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

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

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

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

8 determination that she failed to establish exceptional

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

10 Bagamasbad,

(1976) (“As a general rule courts

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

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

13 For the foregoing reasons, the petition for review is

14 DENIED. All pending motions and applications are DENIED and

15 stays VACATED.

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

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