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`NOT RECOMMENDED FOR PUBLICATION
`File Name: 25a0251n.06
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`Case No. 24-3890
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`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
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`HARNIK RAMESH CHAUDHARY,
` Petitioner,
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`v.
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`PAMELA BONDI, Attorney General,
` Respondent.
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`ON PETITION FOR REVIEW FROM
`THE UNITED STATES BOARD OF
`IMMIGRATION APPEALS
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`OPINION
`Before: COLE, READLER, and RITZ, Circuit Judges.
`RITZ, Circuit Judge. An Immigration Judge denied Harnik Chaudhary’s application for
`cancellation of removal. Chaudhary filed an appeal to the Board of Immigration Appeals (BIA),
`but the BIA dismissed his appeal as untimely . He then filed a motion to reconsider, which was
`also denied as untimely. Chaudhary then petitioned for review of the BIA’s reconsideration order
`in this Court. We deny Chaudhary’s petition.
`BACKGROUND
`Chaudhary was born in India and has lived in the United States since 2007, when he entered
`on a student visa. He married a U.S. citizen, and they have a daughter together.
`Chaudhary overstayed his visa, and in 2018 the government began removal proceedings
`against him . He applied for cancellation of removal based on the hardship that his wife and
`daughter would face if he returned to India. On November 6, 2023, an Immigration Judge denied
`Chaudhary’s application and issued a removal order . Chaudhary had 30 days, until December 6,
`to appeal the decision.
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`On December 5, 2023, Chaudhary’s counsel sent his appeal to the BIA via overnight
`delivery, and it was delivered on December 6. However, the BIA rejected the appeal due to
`missing signatures. On December 21, Chaudhary’s counsel filed the corrected appeal. On June
`28, 2024, the BIA dismissed Chaudhary’s appeal as untimely. Chaudhary had 30 days, until
`Monday, July 29, to file a petition for review or a motion to reconsider.
`Chaudhary’s counsel filed a motion to reconsider on July 23, 2024. On July 25, the B IA
`rejected the motion because Chaudhary’s counsel did not pay the filing fee. On August 6,
`Chaudhary’s counsel correctly filed the motion to reconsider. In September, the BIA denied the
`motion as untimely. Chaudhary now appeals.
`ANALYSIS
`The threshold issue is which BIA action we may properly consider. Chaudhary primarily
`argues that we should overturn the BIA’s June summary dismissal of his appeal. The government,
`however, argues that Chaudhary failed to petition for review of that order within the allotted time,
`and as such we may only consider the September denial of Chaudhary’s motion to reconsider. We
`agree with the government.
`Deportation orders are final and reviewable when issued, and reviewability on appeal is
`not impacted by a subsequent filing of a motion to reconsider. Stone v. INS, 514 U.S. 386, 405-06
`(1995), abrogated on other grounds by Santos-Zacaria v. Garland , 598 U.S. 411, 421 (2023) .
`Therefore, the filing of a motion to reconsider does not equitably toll or otherwise affect the
`deadline for filing an appeal. Id. Bolstering this conclusion, the Supreme Court has held there is
`no need for a noncitizen in removal proceedings to seek administrative reconsideration from the
`BIA before pursuing a direct appeal. Santos-Zacaria, 598 U.S. at 428 -29. Indeed, the relevant
`statutes contemplate that noncitizens will pursue “judicial review and agency reconsideration in
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`parallel” and will not “wait[] to seek judicial review until after reconsideration is complete. ” Id.
`at 428 (citing 8 U.S.C. §§ 1252(b)(1), 1229a(c)(6)(B)).
`Chaudhary’s petition to review the BIA’s June decision was due within 30 days. See 8
`U.S.C. § 1252(b)(1). Chaudhary instead filed a motion to reconsider the B IA’s denial of his
`appeal, which the B IA then dismissed as untimely. Chaudhary may now petition to review the
`denial of his motion to reconsider, as he filed the petition within 30 days of that denial. See id.
`§ 1252(b)(1); see also Stone, 514 U.S. at 405-06. But Chaudhary did not seek review of the BIA’s
`June decision within 30 days. Therefore, we may only consider the B IA’s September denial of
`Chaudhary’s motion to reconsider.
`We review BIA decisions denying a motion to reconsider for abuse of discretion. Yeremin
`v. Holder, 738 F.3d 708, 71 8 (6th Cir. 2013). The BIA abuses its discretion when it acts
`“arbitrarily, irrationally, or contrary to law” or issues a decision that is “made without a rational
`explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis.”
`Id. (alterations in original) (quoting Alizoti v. Gonzales, 477 F.3d 448, 451, 453 (6th Cir. 2007)).
`The BIA denied Chaudhary’s motion to reconsider because it was not properly filed before
`the July 29, 2024 deadline. See 8 U.S.C. § 1229a(c)(6)(B ). The motion was first submitted on
`July 23 and then rejected on July 25 for failure to pay a filing fee. The motion was re-filed properly
`on August 6.
`The BIA has held that the filing deadlines to appeal BIA decisions are not jurisdictional
`limits and therefore subject to equitable tolling. Matter of Morales-Morales, 28 I. & N. Dec. 714,
`716-17 (BIA 2023). However, for a deadline to be equitably tolled, a party must show two things:
`(1) he pursued his rights diligently, and (2) some extraordinary circumstance prevented timely
`filing. Id. at 717 (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). In allowing this exception,
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`the BIA also recognized that deadlines are “essential for the overall working of an immigration
`court system in order to bring cases to a final conclusion.” Id. at 716. Accordingly, even an appeal
`“that is merely 1 day late” is untimely if the party cannot make the two required showings. Id. at
`717.
`Here, Chaudhary argues that equitable tolling should apply, but he does not attempt to
`make either showing. To be clear, he should have made his argument for equitable tolling in his
`untimely motion to reconsider. The BIA’s July 25, 2024, rejection of his motion for
`reconsideration stated that the rejection “DOES NOT EXTEND THE ORIGINAL STRICT TIME
`within which you must file your motion,” and added : “If you file your corrected motion after
`original time limits . . . , you must make a request to the [BIA] to accept your motion.” A.R. 7.
`The BIA’s notice also specified that “[y]our request to accept your untimely motion must clearly
`establish both diligence in the filing of the motion and that an extraordinary circumstance
`prevented timely filing.” Id. Chaudhary’s resubmitted motion made no such request, and we can
`affirm the BIA’s denial of that motion on this basis alone.
`Even excusing Chaudhary’s failure to request equitable tolling at the time of filing, he has
`also failed to make the requisite showing of diligence or extraordinary circumstances in his petition
`for review. He asserts only that the motion was “originally filed within the 30 day deadline, but
`lacked a fee payment due to an error by a staff member.” CA6 R. 16, Pet’r Br., at 11.
`We reject that argument. First, staff error may not always rise to the level of an
`“extraordinary circumstance,” which “may include those situations where reasonable expectations
`about an event’s occurrence are interrupted.” Morales-Morales, 28 I. & N. Dec. at 717. The
`quintessential example is a courier service that does not meet its guarantee. Id.; see also Diaz -
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`Valdez v. Garland, 122 F.4th 436, 447-48 (1st Cir. 2024). We need not decide whether staff error
`here would rise to the same level, because Chaudhary has not attempted to argue diligence.
`Even accepting that the 12-day delay between the motion’s rejection and its refiling was
`immediate, Chaudhary offers “no explanation about what steps, if any, [he] took in the first 2 5
`days to pursue an appeal.” Morales-Morales, 28 I. & N. Dec. at 717. The BIA has made clear
`that merely acting with urgency close to deadlines is not enough to establish diligence. Id. Further,
`Chaudhary has not explained the steps taken in the 12-day interim between the motion’s rejection
`(four days prior to the filing de adline) and its subsequent refiling ( eight days after). A bare
`statement of immediacy, without explanation, does not establish diligence.
`Equitable tolling requires an explanation of diligence and extraordinary circumstances,
`which Chaudhary has not provided. Therefore, the B IA did not abuse its discretion in denying
`Chaudhary’s untimely motion to reconsider.
`CONCLUSION
`We deny the petition for review.
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