Bhojraj v. Holder ( 2012 )

11-2301-ag
Bhojraj v. Holder
BIA
Morace, IJ
A073 611 363
A073 611 365
A073 611 364
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10th day of July, two thousand twelve.
PRESENT:
DENNIS JACOBS,
Chief Judge,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
_____________________________________
TAJRAJ BHOJRAJ, LUCY LILLAWATTIE
PERSAUD, GIBRYON GUSHAN BHOJRAJ,
Petitioners,
v. 11-2301-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Kai W. De Graaf, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Carol H. McIntyre,
Assistant Director; Justin R.
Markel, Trial Attorney, Office of
Immigration Litigation, 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.
Tajraj Bhojraj, Lucy Lillawattie Persaud, and Gibryon
Gushan Bhojraj, natives and citizens of Guyana, seek review
of a May 17, 2011 decision of the BI A affirming a February
2, 2009 decision of Immigration Judge (“IJ”) Philip L.
Morace denying their motion to reopen. In re Tajraj
Bhojraj, Lucy Lilla Wattie Persaud, and Gibryon Gushan
Bhojraj, Nos. A073 611 363/365/364 (B.I.A. May 17, 2011),
aff’g Nos. A073 611 363/365/364 (Immig. Ct. N.Y. City Feb.
2, 2009). We assume the parties’ familiarity with the facts
and the record of prior proceedings, which we reference only
as necessary to explain our decision to deny the petition
for review.
We review the BIA’s decision to deny reopening
deferentially for abuse of discretion. See Jian Hui Shao v.
2
Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). A motion to
reopen must be filed within 90 days of the agency’s final
administrative decision. See 8 U.S.C. § 1229a(c)(7)(C).
Petitioners contend that their motion, filed more than ten
years after the IJ’s deportation order became final,
nevertheless should have been considered because (1) it is
based on changed country conditions arising in the country
of nationality, see 8 C.F.R. § 1003.23(b)(4)(i), and (2) the
ineffective assistance of their prior counsel equitably
tolled the deadline, see Jian Hua Wang v. BIA, 508 F.3d 710,
715 (2d Cir. 2007). Neither argument is persuasive.
To the extent petitioners fault the BIA for failing to
address their evidence of “recent violence and kidnappings,”
Pet’rs Brief 29, the BIA need not “expressly parse or refute
on the record each individual argument or piece of evidence
offered by the petitioner,” Wei Guang Wang v. BIA, 437 F.3d
270, 275 (2d Cir. 2006) (internal quotation marks omitted).
Even on appeal, petitioners fail to explain how the
proffered evidence of violence demonstrates changed country
conditions, particularly in light of the significant
evidence of violence that petitioners concede existed at the
time of their original asylum application. Under such
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circumstances, we cannot deem the BIA’s conclusion that
petitioners failed to show changed country conditions an
abuse of discretion.1
Nor has petitioner shown that the BIA erred in
declining to toll the deadline based on ineffective
assistance of counsel. An alien seeking equitable tolling
in such a circumstance must show “due diligence” in pursuing
his claim 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.” Rashid v. Mukasey, 533 F.3d 127, 131
(2d Cir. 2008); see also Cekic v. INS, 435 F.3d 167, 170 (2d
Cir. 2006). Petitioners contend that they took no action to
pursue this claim from 1997 until Tajraj Bhojraj’s arrest by
Immigration and Customs Enforcement in 2008 because an
unnamed colleague of the purportedly ineffective counsel had
told them in 1997 that reopening was impossible. The BIA
1
To the extent petitioners suggest that they now
will be perceived as wealthy foreigners after having
remained in the United States for many years, they submit
such a ground only to show their prima facie eligibility
for relief, not to demonstrate changed country
conditions. Although we thus need not consider the
issue, we observe that such a change in personal
circumstances would not excuse an untimely motion to
reopen. See Wei Guang Wang, 437 F.3d at 273-74.
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did not abuse its discretion in concluding that such
reliance failed to exhibit reasonable due diligence. See
Jian Hua Wang, 508 F.3d at 715.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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