Lewis v. Lynch, 669 F. App'x 581

Lewis, a native and citizen of Trinidad and Tobago, had a removal order entered in absentia in October 2010.
Attorney of record had notice of Lewis’s October 2010 hearing.
Lewis filed a motion to rescind the removal order in April 2014, more than three years after the 2010 order.
The motion to rescind was untimely under 8 U.S.C. § 1229a(b)(5)(C)(i).
The BIA affirmed the IJ’s denial of the motion to rescind; the court reviews for abuse of discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of motion to rescind removal in absentia	Lewis argues tolling or exceptions save timely filing	Lynch argues untimely under §1229a(b)(5)(C)(i)	Untimely; tolling not established
Exceptional circumstances for failure to appear	Exceptional circumstances excused the failure	No exceptional circumstances shown	No exceptional circumstances proven
Equitable tolling for ineffective assistance of counsel	Due diligence during pre-discovery shown	No due diligence demonstrated	No tolling available
Due diligence requirement for tolling period	Lewis acted with due diligence after discovery	No action during 2010–2014 shows diligence	No due diligence warranting tolling
Effect of illness on tolling claim	Illness grounds tolling	Illness not enough for tolling	Illness not a basis for tolling

Song Jin Wu v. INS, 436 F.3d 157 (2d Cir. 2006) (timeliness and exceptional circumstances under §1229a(b)(5)(C))
Rashid v. Mukasey, 533 F.3d 127 (2d Cir. 2008) (due diligence required for equitable tolling)
Cekic v. INS, 435 F.3d 167 (2d Cir. 2006) (due diligence and tolling standards for ineffective assistance claims)
Jian Hua Wang v. BIA, 508 F.3d 710 (2d Cir. 2007) (considerations of timely filing and diligence in ICAO context)
Yan Chen v. Gonzalez, 417 F.3d 268 (2d Cir. 2005) (review standard for IJ/BIA decisions)
Alrefae v. Chertoff, 471 F.3d 353 (2d Cir. 2006) (abuse of discretion standard for motion to rescind)