The Ninth Circuit has affirmed that an improperly filed appeal of an in absentia order did not toll the 180-day filing deadline for an exceptional circumstances motion to reopen. “While one could argue that Cui is a victim of ineffective assistance of counsel, she failed to raise any such claim andc ontinues to retain her arguably ineffective counsel before our court on appeal. Because we are limited to reviewing the arguments made in the briefs, we conclude both that the BIA did not abuse its discretion in determining Cui did not timely file a motion to reopen, and that the BIA did not commit legal error in declining to sua sponte reopen her removal proceedings.”
The full text of Cui v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/23/18-72030.pdf