19-3650 Olabisi v. Garland BIA Loprest, IJ A043 355 830 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 9th day of March, two thousand twenty-two. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 ROBERT D. SACK, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 _____________________________________ 12 13 DAVID OLUWADAMILOL OLABISI, AKA 14 OLUDAMOLA OLUBUNMI ONANUGA, AKA 15 NUGA ROBERT SAMUEL, AKA JOSEPH 16 SONNY DARLING, AKA DAVID O. 17 OLAEIS, AKA OLUBUNMI ONANUGA, 18 Petitioner, 19 20 v. 19-3650 21 NAC 22 MERRICK B. GARLAND, UNITED 23 STATES ATTORNEY GENERAL, 24 Respondent. 25 _____________________________________ 26 27 FOR PETITIONER: Rakhvir Dhanoa, Esq., New York, 28 NY. 1 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 2 Attorney General; Cindy S. 3 Ferrier, Assistant Director; Sunah 4 Lee, Trial Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC.

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 David Oluwadamilol Olabisi, a native and

13 citizen of Nigeria, seeks review of an October 10, 2019,

14 decision of the BIA affirming a July 17, 2018, decision of an

15 Immigration Judge (“IJ”) denying his motion to rescind his

16 removal order and reopen removal proceedings. In re David

17 Oluwadamilol Olabisi, No. A043 355 830 (B.I.A. Oct. 10, 2019),

18 aff’g No. A043 355 830 (Immig. Ct. N.Y. City July 17, 2018).

19 We assume the parties’ familiarity with the underlying facts

20 and procedural history.

21 We have reviewed the IJ’s decision denying Olabisi’s

22 motion because the BIA affirmed that decision without

23 opinion. See Shunfu Li v. Mukasey,

(2d

24 Cir. 2008). We review the IJ’s decision for abuse of

25 discretion. See Maghradze v. Gonzales,

, 152–53 2 1 (2d Cir. 2006). We find no abuse of discretion in the IJ’s

2 conclusion that Olabisi failed to exercise due diligence in

3 moving to rescind.

4 An order of removal entered in absentia “may be rescinded

5 only . . . (i) upon a motion to reopen filed within 180 days

6 after the date of the order of removal if the alien

7 demonstrates that the failure to appear was because of

8 exceptional circumstances . . . or (ii) upon a motion to

9 reopen filed at any time if the alien demonstrates that the

10 alien did not receive notice.” 8 U.S.C. § 1229a(b)(5).

11 Olabisi’s May 2018 motion was untimely because he filed it 11

12 months after the July 17, 2017, hearing at which he was

13 ordered removed in absentia. Although equitable tolling may

14 excuse a filing deadline if due diligence is shown, Olabisi

15 conceded that he was aware of the in absentia order by August

16 2017, but did not explain why he waited until May 2018 to

17 file his motion. See Cekic v. INS,

(2d

18 Cir. 2006) (holding that one requirement for equitable

19 tolling in showing of due diligence). To the extend Olabisi

20 asserts ineffective assistance of counsel, that claim is

21 unexhausted and not subject to review in this Court because

3 1 he did not raise it in his motion to rescind or on appeal to

2 the BIA. See Lin Zhong v. U.S. Dep’t of Justice,

104, 123 (2d Cir. 2007); Arango-Aradondo v. INS,

,

4 614 (2d Cir. 1994).

5 Absent timely filing or equitable tolling, the only basis

6 for Olabisi’s motion was lack of notice. Notice is presumed

7 where, as here, the record reflects that a hearing notice was

8 served by mail to the correct address, here the attorney of

9 record. See 8 U.S.C. § 1229a(b)(5); Alrefae v. Chertoff, 471

, 358–59 (2d Cir. 2006); Matter of C-R-C-, 24 I. & N.

11 Dec. 677, 678–79 (B.I.A. 2008). Olabisi stated there was a

12 miscommunication, but provided no further detail or

13 explanation. Accordingly, the IJ did not abuse his discretion

14 in finding that Olabisi failed to rebut the presumption of

15 notice given the delay in filing the motion to rescind and

16 Olabisi’s lack of evidence or explanation to rebut the

17 presumption of notice. See Matter of M-R-A-,

665, 674 (B.I.A. 2008) (providing non-exhaustive list of

19 factors to consider, including noncitizen’s actions upon

20 learning of the in absentia order and whether he exercised

21 due diligence in moving to rescind).

4 1 We lack jurisdiction to review the agency’s “entirely

2 discretionary” decision not to reopen sua sponte. Ali v.

3 Gonzales,

(2d Cir. 2006).

4 For the foregoing reasons, the petition for review is

5 DENIED. All pending motions and applications are DENIED and

6 stays VACATED.

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court

5