
    MARK SEMANA GAVIOLA, Petitioner, v. LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL, Respondent.
    No. 12-4748.
    United States Court of Appeals, Second Circuit.
    Jan. 15, 2016.
    Herbert J. Tan, Fort Lee, NJ., for Petitioner.
    For Respondent: Stuart F. Delery, Acting Assistant Attorney General; Mary Jane Candaux, Assistant Director; Chan-nah F. Norman, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
    PRESENT: ROSEMARY S. POOLER, DEBRA ANN LIVINGSTON, DENNY CHIN, Circuit Judges.
    
      
       Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is automatically substituted for former Attorney General Eric H. Holder, Jr. as Respondent.
    
   Petitioner Mark Semana Gavióla, a native and citizen of the Philippines, seeks review of the November 8, 2012, decision of the BIA affirming the December 21, 2010, decision of an Immigration Judge (“IJ”), which denied Gaviola’s to rescind his in absentia removal order. In re Mark Semana Gaviola, No. [ AXXX XXX XXX ] (B.I.A. Nov. 8, 2012), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Dec. 21, 2010). We assume the parties’ familiarity with the underlying facts and procedural history in this ease.

Pursuant to 8 U.S.C. § 1229a(b)(5)(A), “[a]ny alien who, after written notice ... has been provided to the alien or the alien’s counsel of record, does not attend a proceeding ..., shall be ordered removed in absentia” if it is established “by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable.” An in absen-tia removal order may be rescinded, inter alia, upon a motion to reopen filed within 180 days after the date of the order of removal if the alien establishes “exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i); 8 C.F.R. § 1003.23(b)(4)(ii). When an alien files a motion that seeks both rescission of an in absentia order, as well as reopening of proceedings based on new evidence, we treat the motion as comprising distinct motions to rescind and to reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.2006). We review both the denial of a motion to rescind an in absentia removal order and the denial of a motion to reopen for abuse of discretion. Id.; Maghradze v. Gonzales, 462 F.3d 150, 152-53 & n. 1 (2d Cir.2006).

Construing Gaviola’s motion before the IJ as both a motion to reopen and as a motion to rescind the in absentia order, the agency did not abuse its discretion in denying the motion. To the extent that Gavióla moved to reopen proceedings pursuant to 8 U.S.C. § 1229a(c)(7), he did not present any new, previously unavailable evidence, or any additional evidence at all, and accordingly the IJ did not abuse her discretion in declining to reopen proceedings. See 8 C.F.R. § 1003.2(c)(1); Norani v. Gonzales, 451 F.3d 292, 294 & n. 3 (2d Cir.2006). To the extent that Gavióla moved to rescind the in absentia order, the motion, while timely, did not adequately allege exceptional circumstances which would warrant rescinding the order, as Gavióla stated only that his attorney had filed a motion to adjourn proceedings, and, by his own account, did not receive a reply to that motion. See 8 U.S.C. § 1229a(e)(l); Kulhawik v. Holder, 571 F.3d 296, 299 (2d Cir.2009) (per curiam). Accordingly, the agency did not abuse its discretion in declining to rescind the in absentia order.

Gavióla argues here for the first time that because his assault conviction was expunged in 2008, he is not removable as charged. As the government notes, this argument is unexhausted and we therefore do not consider it. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 
      
       As the government notes in its brief, ineffective assistance of counsel can constitute exceptional circumstances warranting the reopening of a removal order entered in ab-sentia, and, assuming due diligence on the part of the movant, the 180-day filing deadline may be equitably tolled. See Aris v. Mukasey, 517 F.3d 595, 599 & n. 7 (2d Cir.2008). Gavióla does not now allege and has not previously alleged that he received any ineffective assistance of counsel in these proceedings, and we do not opine on the merits of any such argument. We note, however, that Gavióla's attorney failed to appear at the November 2010 hearing which resulted in the in absentia order, and that this failure is neither explained nor shown to be the result of exceptional circumstances. Gavióla, moreover, may be statutorily eligible for cancellation of removal for permanent residents under 8 U.S.C. § 1229b(a), and, pursuant to Vartelas v. Holder, — U.S. -, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012), he may no longer be inadmissible as charged.
     
      
       Moreover, Gaviola’s conviction was expunged pursuant to California Penal Code § 1203.4, and a conviction expunged under that particular statutory provision remains a conviction for immigration purposes. See Ramirez-Castro v. INS, 287 F.3d 1172, 1175 (9th Cir.2002); Matter of Marroquin-Garcia, 23 I. & N. Dec. 705, 713-14 (A.G.2005); see also Saleh v. Gonzales, 495 F.3d 17, 25 (2d Cir.2007).
     