Zahra v. Holder , 456 F. App'x 51 ( 2012 )

10-753-ag
Zahra v. Holder
BIA
Weisel, IJ
A073 650 277
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 24th day of January, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 FATIMATA ZAHRA,
14 Petitioner,
15 10-753-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Fatimata Zahra, Pro Se,
24 Brooklyn, New York
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Keith I. McManus, Senior
28 Litigation Counsel; P. Michael
29 Truman, Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner, Fatimata Zahra, a native and citizen of
6 Mauritania, seeks review of a February 4, 2010, order of the
7 BIA affirming the January 14, 2009 decision of Immigration
8 Judge (“IJ”) Robert D. Weisel denying her motion to reopen
9 her removal proceedings. In re Fatimata Zahra, No. A073 650
10 277 (B.I.A. Feb. 4, 2010), aff’g No. A073 650 277 (Immig.
11 Ct. N.Y. City Jan. 14, 2009). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 of the case.
14 We review the agency’s denial of a motion to reopen to
15 apply for relief based on new evidence or to rescind an in
16 absentia order for abuse of discretion. See Kaur v. BIA,
17 413 F.3d 232, 233 (2d Cir. 2005), Alrefae v. Chertoff, 471
18 F.3d 353, 357 (2d Cir. 2006). The statute and regulations
19 provide that an alien may file one motion to reopen
20 proceedings based on new, previously unavailable evidence,
21 but that motion must be filed within 90 days of the final
22 administrative decision. 8 U.S.C. § 1229a(c)(7)(A),(C);
2
1 8 C.F.R. § 1003.23(b). Where the motion to reopen requests
2 recission of an in absentia order based on “exceptional
3 circumstances” to excuse the failure to appear, the motion
4 must be filed within 180 days of the in absentia order.
5 8 U.S.C. § 1229a(b)(5)(C)(i). The motion to reopen at issue
6 was filed outside of both the 90- and 180-day periods, as
7 Zahra was ordered removed in 2002 and did not file the
8 motion until 2008.
9 Zahra argues, however, that the agency abused its
10 discretion in denying her motion because the time limitation
11 should have been excused based on ineffective assistance of
12 counsel. The deadline for filing a motion to reopen may be
13 equitably tolled to accommodate claims of ineffective
14 assistance of counsel, so long as the movant has exercised
15 “due diligence” in vindicating her rights. See Cekic v.
16 I.N.S., 435 F.3d 167, 171 (2d Cir. 2006). Here, the BIA did
17 not abuse its discretion in determining that Zahra failed to
18 exercise due diligence because, although Zahra had knowledge
19 of her final order of removal in September 2002, she waited
20 six years, until November 2008, to file her motion.
21 Moreover, Zahra did not indicate that she took any steps to
22 pursue or check on the status of her case between August
3
1 2005 and April 2008, despite having been ordered removed in
2 2002, and having been aware in 2005 that a motion to reopen
3 either had not previously been filed or had been
4 unsuccessful. See Iavorski v. INS, 232 F.3d 124, 134 (2d
5 Cir. 2000) (finding a lack of due diligence when petitioner
6 failed to investigate status of appeal for approximately two
7 years); Cekic, 435 F.3d at 172 (denying motion to reopen
8 where petitioners’ “submissions in support of their second
9 motion to reopen fail[ed] to provide even the slightest
10 indication that they took any action to protect
11 themselves.”).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any pending motion
14 for a stay of removal in this petition is DISMISSED as moot.
15 Any pending request for oral argument in this petition is
16 DENIED in accordance with Federal Rule of Appellate
17 Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
4