Ostrovskaya v. Holder ( 2013 )

11-4815
Ostrovskaya v. Holder
BIA
A079 331 594
A079 331 595
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 19th day of December, two thousand thirteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 EKATERINA OSTROVSKAYA, ALISA RADJABOVA,
14 Petitioners,
15
16 v. 11-4815
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONERS: Ekaterina Ostrovskaya, Alisa
24 Radjabova, Pro Se, Spring Valley,
25 NY.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; David V. Bernal,
1 Assistant Director; Stuart S.
2 Nickum, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioners Ekaterina Ostrovskaya, a native of the
12 former Soviet Union and citizen of Uzbekistan, and her
13 daughter, Alisa Radjabova, a native and citizen of
14 Uzbekistan, seek review of the October 12, 2011 decision of
15 the BIA denying their motion to reopen. In re Ekaterina
16 Ostrovskaya, Alisa Radjabova, Nos. A079 331 594/595 (B.I.A.
17 Oct. 12, 2011). We assume the parties’ familiarity with the
18 underlying facts and procedural history of the case.
19 The BIA’s denial of Petitioners’ motion to reopen as
20 untimely was not an abuse of discretion. See Kaur v. BIA,
21 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An alien may
22 file one motion to reopen, generally no later than 90 days
23 after the date on which the final administrative decision
24 was rendered in the proceedings sought to be reopened. 8
25 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).
26 There is no dispute that Petitioners’ 2011 motion was
2
1 untimely, as the final administrative order was issued in
2 2003.
3 The agency may equitably toll the time limitation
4 imposed on motions to reopen if an alien demonstrates
5 ineffective assistance of counsel. See Rabiu v. INS, 41
6 F.3d 879, 882 (2d Cir. 1994). To prevail on a request for
7 tolling based on a claim of ineffective assistance, an
8 applicant must demonstrate that: (1) “competent counsel
9 would have acted otherwise,” Esposito v. INS, 987 F.2d 108,
10 111 (2d Cir. 1993) (per curiam); (2) she was prejudiced as a
11 result of her counsel’s poor performance, see Rabiu, 41 F.3d
12 at 882; and (3) she exercised due diligence in pursuing her
13 claims during “both the period of time before the
14 ineffective assistance of counsel was or should have been
15 discovered and the period from that point until the motion
16 to reopen was filed” see Rashid v. Mukasey, 533 F.3d 127,
17 131 (2d Cir. 2008).
18 Here, Petitioners generally assert that they
19 established that their prior counsel failed properly to
20 present their case before the immigration judge. As the BIA
21 reasonably found, however, Petitioners failed to provide any
22 evidence that they substantially complied with the
3
1 requirements for claiming ineffective assistance of counsel
2 as set forth in Matter of Lozada, 19 I. & N. Dec. 637
3 (B.I.A. 1988). Additionally, given Petitioners’ failure
4 both to raise this claim for nearly ten years after the
5 denial of their application for relief, and to provide any
6 excuse for the delay, the BIA reasonably found that
7 Petitioners failed to exercise due diligence in pursuing
8 their claim. See Jian Hua Wang v. BIA, 508 F.3d 710, 715
9 (2d Cir. 2007) (per curiam) (citing cases in which the Court
10 held that “a petitioner who waits two years or longer to
11 take steps to reopen a proceeding ha[d] failed to
12 demonstrate due diligence”). The BIA therefore did not err
13 in finding that the time limitation applicable to their
14 motion to reopen could not be equitably tolled. See Jian
15 Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir.
16 2005) (requiring substantial compliance with Lozada to
17 preserve an ineffective assistance of counsel claim);
18 Rashid, 533 F.3d at 131 (requiring due diligence).
19 Because the timeliness issue was dispositive of the
20 motion to reopen, the BIA was not required to address
21 Petitioners’ prima facie eligibility for relief. See 8
22 C.F.R. § 1003.2(c)(1)-(2). To the extent Petitioners argue
23 that they established extraordinary circumstances warranting
4
1 sua sponte reopening and also demonstrated a change in
2 personal circumstances and country conditions, those
3 arguments are unexhausted and therefore we may not consider
4 them. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462
5 F.3d 113, 119 (2d Cir. 2006); Lin Zhong v. U.S. Dep’t of
6 Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
7 For the foregoing reasons, the petition for review is
8 DENIED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
5