Noreu v. Holder ( 2012 )

11-3608
Noreu v. Holder
BIA
A079 297 735
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 6th day of June, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROBERT A. KATZMANN,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _________________________________________
12
13 SHPETIM NOREU, AKA SHPETIM BAJRAM NDREU,
14
15 Petitioner,
16
17 v. 11-3608
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21
22 Respondent.
23 _________________________________________
24
25 FOR PETITIONER: Nathan Weill, New York, NY.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; Susan K. Houser,
29 Senior Litigation Counsel; Dawn S.
30 Conrad, Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 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 Petitioner Shpetim Noreu, a native and citizen of
6 Albania, seeks review of an August 15, 2011, order of the
7 BIA denying his motion to reopen. In re Shpetim Noreu
8 a.k.a. Shpetim Bajram Ndreu, No. A079 297 735 (B.I.A. Aug.
9 15, 2011). We assume the parties’ familiarity with the
10 underlying facts, procedural history, and issues presented
11 for review.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
14 Cir. 2006)(per curiam). Aliens seeking to reopen
15 proceedings may file a motion to reopen no later than 90
16 days after the date on which the final administrative
17 decision was rendered. 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.
18 § 1003.2(c)(2). Noreu’s February 2011 motion was untimely
19 because he filed it more than four years after the BIA’s
20 2006 final order of removal.
21 The BIA did not abuse its discretion in declining to
22 equitably toll the time period for filing Noreu’s motion to
23 reopen based on his ineffective assistance of counsel claim.
2
1 To warrant equitable tolling, a movant must demonstrate that
2 competent counsel would have acted otherwise and that he was
3 prejudiced by counsel’s ineffective assistance. See Rashid
4 v. Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008). Even
5 assuming that a movant demonstrates that prior counsel was
6 ineffective and that he was prejudiced, the movant is
7 required to demonstrate “due diligence” in pursuing his
8 claim. See id. at 131; see also Cekic v. INS, 435 F.3d 167,
9 170 (2d Cir. 2006).
10 The BIA did not err in determining that Noreu failed to
11 demonstrate that his former counsel’s representation had
12 prejudiced him. In order to show that actual prejudice
13 resulted from counsel’s failure to pursue certain
14 initiatives, the movant “must make a prima facie showing
15 that he would have been eligible for the relief and that he
16 could have made a strong showing in support of his
17 application.” Rabiu v. INS, 41 F.3d 879, 882 (2d Cir.
18 1994). Noreu asserts that he was prejudiced by his former
19 counsel’s failure to either notify him of prior decisions of
20 this Court reprimanding the IJ who conducted his proceedings
21 or argue that the IJ’s inappropriate conduct may have
22 infected the decision to deny him humanitarian asylum.
23 Noreu’s counsel, however, clearly raised such arguments on
3
1 appeal to the BIA and in his prior petition for review to
2 this Court. Importantly, in a 2007 decision, we reviewed
3 Noreu’s assertion that the IJ’s conduct demonstrated bias
4 and found that any potentially inappropriate conduct by the
5 IJ had not caused Noreu prejudice because the agency had
6 reasonably concluded that he was not entitled to
7 humanitarian asylum. See Noreu v. Gonzales, 212 F. App’x
8 55, 57 (2d Cir. 2007). That determination remains the law
9 of the case. See Johnson v. Holder, 564 F.3d. 95, 99 (2d
10 Cir. 2009). Moreover, the fact that we subsequently issued
11 an unpublished decision discussing the IJ’s inappropriate
12 conduct in other cases does not alter our determination
13 because we had previously rendered at least one precedential
14 opinion discussing the IJ’s inappropriate behavior. See
15 Mahamed Ayenul Islam v. Gonzales, 469 F.3d 53, 55-57 (2d
16 Cir. 2006). Therefore, the BIA did not err in concluding
17 that Noreu failed to demonstrate that he was prejudiced by
18 his former counsel’s actions.
19 Further, the BIA did not abuse its discretion in
20 finding that Noreu failed to demonstrate that he exercised
21 due diligence in pursuing his ineffective assistance of
22 counsel claim. A movant seeking equitable tolling based on
4
1 the ineffective assistance of counsel has the burden of
2 demonstrating that he exercised due diligence during “both
3 the period of time before the ineffective assistance of
4 counsel was or should have been discovered and the period
5 from that point until the motion to reopen is filed.”
6 Rashid, 533 F.3d at 132. As the BIA found, Noreu failed to
7 demonstrate due diligence because he did not explain what
8 actions he took to pursue his case in the four years between
9 our 2007 decision denying his petition for review and the
10 hiring of his current attorney in 2011. See id.11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
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