Lecaj v. Holder ( 2014 )

12-1629
Lecaj v. Holder
BIA
A099 075 388
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
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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 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 20th day of June, two thousand fourteen.
PRESENT:
REENA RAGGI,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
FATMIR LECAJ,
Petitioner,
v. 12-1629
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Thomas E. Moseley, Newark, New Jersey.
FOR RESPONDENT: Stuart F. Delery, Principal Deputy
Assistant Attorney General; Shelley R.
Goad, Assistant Director; Katharine E.
Clark, Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Fatmir Lecaj, a native and citizen of Montenegro, whose
petition for asylum based on feared religious, political, and
ethnic persecution was denied, see Lecaj v. Holder, 616 F.3d
111 (2d Cir. 2010), now seeks review of an April 3, 2012 order
of the BIA denying his motion to reopen. In re Fatmir Lecaj,
No. A099 075 388 (B.I.A. Apr. 3, 2012). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case, which we discuss only as necessary to
explain why we identify no abuse of discretion in the
challenged denial.
Mindful of the Supreme Court’s admonition that motions to
reopen asylum proceedings are “disfavored,” INS v. Doherty,
502 U.S. 314, 322-23 (1992), we review the denial of such
motions only for abuse of discretion, Ali v. Gonzales, 448
F.3d 515, 517 (2d Cir. 2006). Lecaj’s motion to reopen, filed
in November 2011, was plainly untimely, given that his order
of removal became final in January 2009, and the law expects
that motions to reopen will be filed no later than 90 days
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thereafter. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). Lecaj does not dispute this chronology.
Rather, he faults the BIA’s failure equitably to toll the
filing period based on claimed ineffective representation.
Specifically, he challenges the BIA’s finding that he failed
to demonstrate the prejudice or diligence necessary to secure
equitable tolling for that reason. See Rabiu v. INS, 41 F.3d
879, 882 (2d Cir. 1994) (requiring prejudice); see also Rashid
v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008) (requiring due
diligence 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”).
The due diligence requirement contemplates “a two-step
inquiry that first evaluates reasonableness under the
circumstances—namely, whether and when the ineffective
assistance was or should have been discovered by a reasonable
person in the situation”—and, second, expects petitioner to
show he acted diligently in pursuing reopening once he
discovered the purported ineffectiveness. Jian Hua Wang v.
BIA, 508 F.3d 710, 715 (2d Cir. 2007) (internal quotation
marks and citation omitted). In this case, the BIA reasonably
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identified the discovery date as December 2010, when the
mandate of this court issued in Lecaj v. Holder, 616 F.3d at
117-19, wherein we made clear that Lecaj had failed to submit
the evidence necessary to overcome agency findings of changed
country conditions.
The BIA acted within its discretion in finding that Lecaj
failed to demonstrate the due diligence required to toll the
eleven months between the December 2010 mandate and his
November 2011 filing of a motion to reopen. Insofar as the
de-accreditation of Lecaj’s representative did not become
public until July 2011, Lecaj failed to articulate before the
BIA why that fact was necessary to his own awareness of
ineffective assistance in the failure to present evidence,
including testimony from his own sister, relevant to the issue
of changed country conditions. Because Lecaj thus failed to
demonstrate that July 2011 was the earliest date he should
have known of the ineffective assistance, or to articulate any
other reason excusing his failure to file before November
2011, the BIA did not abuse its discretion in finding that he
failed to demonstrate the due diligence necessary for
equitable tolling. See Jian Hua Wang, 508 F.3d at 715.
Nor do we identify any abuse of discretion in the BIA’s
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finding that Lecaj failed to demonstrate prejudice given that
he attributed ineffectiveness only to his counsel of record,
a BIA “accredited representative,” and not to the attorney who
actually appeared on his behalf at his asylum hearing. That
conclusion is only reinforced by Lecaj’s failure to present
the Board with anything more than conclusory assertions that
testimony from his sister and an unidentified expert would
have resulted in his procurement of asylum. See Rabiu v. INS,
41 F.3d at 882–83.
For the foregoing reasons, the petition for review is
DENIED. The 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).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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