Palomino-Alzamora v. Holder , 463 F. App'x 31 ( 2012 )

10-4032-ag
Palomino-Alzamora v. Holder
BIA
A096 679 485
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
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 22nd day of February, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 SUSANA PALOMINO-ALZAMORA,
14 Petitioner,
15
16 v. 10-4032-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: H. Raymond Fasano, Youman, Madeo &
24 Fasano, LLP, New York, NY.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; John S. Hogan, Senior
28 Litigation Counsel, Aimee J.
29 Frederickson, Trial Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Susana Palomino-Alzamora, a native of Peru and a
6 citizen of Spain, seeks review of a September 8, 2010,
7 decision of the BIA denying her motion to reopen and
8 reconsider. In re Susana Palomino-Alzamora, No. A096 679
9 485 (B.I.A. Sept. 8, 2010). We assume the parties’
10 familiarity with the underlying facts and procedural history
11 in this case. We review the BIA’s denial of a motion to
12 reopen or reconsider for abuse of discretion. See Jin Ming
13 Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006); Kaur v.
14 BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).
15 The BIA did not abuse its discretion in denying
16 Palomino-Alzamora’s motion to reopen and reconsider. “A
17 motion to reconsider shall state the reasons for the motion
18 by specifying the errors of fact or law in the prior [BIA]
19 decision . . . [and] must be filed with the [BIA] within 30
20 days after the mailing of the [BIA] decision.” 8 C.F.R.
21 § 1003.2(b); see also 8 U.S.C. § 1229a(c)(6)(B), (C).
22 Palomino-Alzamora’s motion to reconsider was untimely, as it
23 was filed 81 days after the BIA’s decision was mailed.
2
1 Moreover, she did not demonstrate the requisite prejudice
2 necessary to toll the filing period based on ineffective
3 assistance of counsel. See Rashid v. Mukasey, 533 F.3d 127,
4 130-31 (2d Cir. 2008); Rabiu v. INS, 41 F.3d 879, 882 (2d
5 Cir. 1994). Thus, in her motion to reconsider, Palomino-
6 Alzamora argued that the BIA erred by affirming an
7 immigration judge’s (“IJ”) denial of adjustment of status
8 because the IJ did not have the authority to go beyond the
9 approved I-130 petition and find that her marriage was not
10 bona fide. Because Palomino-Alzamora made the same argument
11 in her initial appeal to the BIA, and the BIA rejected that
12 argument, the BIA was not required to reconsider it even had
13 the motion been timely filed. See Jin Ming Liu, 439 F.3d at14 111 (the BIA does not abuse its discretion by denying a
15 motion to reconsider that merely repeats arguments that the
16 BIA has previously rejected). Because Palomino-Alzamora did
17 not identify any other putative error of law or fact in the
18 BIA’s initial decision, she failed to show that she was
19 prejudiced by her prior attorney’s failure to timely file
20 the motion to reconsider. Accordingly, the BIA did not
21 abuse its discretion in denying her motion to reconsider.
22 See 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1);
3
1 Rabiu, 41 F.3d at 882 (to demonstrate prejudice, an
2 applicant “must make a prima facie showing that he would
3 have been eligible for the relief [sought]”).
4 To the extent that Palomino-Alzamora sought reopening,
5 rather than reconsideration, her motion was timely. See
6 8 U.S.C. § 1229a(c)(7)(C). However, a “motion to reopen
7 proceedings shall not be granted unless it appears to the
8 [BIA] that evidence sought to be offered is material and was
9 not available and could not have been discovered or
10 presented at the former hearing.” See 8 C.F.R.
11 § 1003.2(c)(1); see also 8 U.S.C. § 1229a(c)(7)(B). As the
12 BIA noted, Palomino-Alzamora did not submit or identify any
13 additional evidence regarding her underlying request for
14 relief from removal. Consequently, the BIA did not abuse
15 its discretion in denying her motion to reopen. See 8 U.S.C.
16 § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1); INS v. Abudu, 485
17 U.S. 94, 104-05 (1988).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
4
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
5