14-3285
Ochoa-Benitez v. Lynch
BIA
Lamb, IJ
A097 528 147
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
15th day of December, two thousand fifteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RICHARD C. WESLEY,
PETER W. HALL,
Circuit Judges.
_____________________________________
SAUL RUBEN OCHOA-BENITEZ, AKA SAUL
OCHOA, AKA SAUL R. OCHOA,
Petitioner,
v. 14-3285
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Julie A. Goldberg, Bronx,
New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Mary
Jane Candaux, Assistant Director;
Channah F. Norman, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
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.
Petitioner Saul Ruben Ochoa-Benitez, a native and citizen
of Mexico, seeks review of an August 14, 2014, decision of the
BIA affirming a June 26, 2013, decision of an Immigration Judge
(“IJ”) denying Ochoa-Benitez’s motion to rescind his removal
order entered in absentia. In re Saul Ruben Ochoa-Benitez, No.
A097 528 147 (B.I.A. Aug. 14, 2014), aff’g No. A097 528 147
(Immig. Ct. N.Y. City June 26, 2013). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We have reviewed the agency’s denial of Ochoa-Benitez’s
motion to rescind for abuse of discretion. See Alrefae v.
Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). An order of removal
entered in absentia “may be rescinded only--(i) upon a motion
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to reopen filed within 180 days after the date of the order of
removal if the alien demonstrates that the failure to appear
was because of exceptional circumstances . . .; or (ii) upon
a motion to reopen filed at any time if the alien demonstrates
that the alien did not receive notice . . . and the failure to
appear was through no fault of the alien.” 8 U.S.C.
§ 1229a(b)(5)(C). Ochoa-Benitez’s motion to rescind was
subject to the 180-day time limit because he admitted that he
received notice of his hearing and asserted that exceptional
circumstances should excuse his failure to appear. See id. It
is undisputed that Ochoa-Benitez’s 2013 motion to rescind was
untimely filed because the IJ ordered him removed in absentia
in 2006. See 8 U.S.C. § 1229a(b)(5)(C)(i).
In order to warrant equitable tolling or establish
exceptional circumstances, even assuming that prior counsel was
ineffective, an alien is required to demonstrate “due
diligence” in pursuing his claim during “both the period of time
before the ineffective assistance of counsel was or should have
been discovered and the period from that point until the motion
to reopen is filed.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d
Cir. 2008); see also Cekic v. INS, 435 F.3d 167, 170 (2d Cir.
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2006). Ochoa-Benitez failed to demonstrate due diligence. He
did not take any action to pursue reopening in the approximately
six years that passed between his unauthorized reentry to the
United States in 2007 and his retention of current counsel upon
his arrest in 2013. See Jian Hua Wang v. BIA, 508 F.3d 710,
715-16 (2d Cir. 2007). Accordingly, the agency did not abuse
its discretion in denying Ochoa-Benitez’s motion, and we need
not consider his alternative arguments challenging the agency’s
decision. See 8 U.S.C. § 1229a(b)(5)(C).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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