Desilva v. Holder , 439 F. App'x 77 ( 2011 )

10-3768-ag
Desilva v. Holder
BIA
Vomacka, IJ
A075 807 845
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 5th day of October, two thousand eleven.
5
6 PRESENT:
7 JOSEPH M. MCLAUGHLIN,
8 GUIDO CALABRESI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 DEPACHARIGE PREMARATNA DESILVA,
14 Petitioner,
15
16 v. 10-3768-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Visuvanathan Rudrakumaran, New York,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Jennifer L. Lightbody,
28 Senior Litigation Counsel; Stefanie
29 A. Svoren, Trial Attorney, Office of
1 Immigration Litigation, Civil
2 Division, United States Department
3 of Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Depacharige Premaratna Desilva, a native and citizen of
10 Sri Lanka, seeks review of an August 23, 2010, order of the
11 BIA affirming the June 15, 2010, decision of Immigration
12 Judge (“IJ”) Alan Vomacka denying his motion to reopen his
13 removal proceedings. In re Depacharige Premaratna Desilva,
14 No. A075 807 845 (B.I.A. Aug. 23, 2010), aff’g No. A075 807
15 845 (Immig. Ct. N.Y. City Aug. 23, 2010). We assume the
16 parties’ familiarity with the underlying facts and
17 procedural history of the case.
18 We review the agency’s denial of a motion to reopen for
19 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
20 (2d Cir. 2006). Here, the agency did not abuse its
21 discretion by denying Desilva’s motion to reopen as
22 untimely, as he filed it more than one year after his final
23 order of removal, and number-barred, as it was his second
24 motion to reopen. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R.
25 § 1003.23(b)(1).
26 Although the time and number limits on motions to
27 reopen may be excused when the movant demonstrates changed
2
1 country conditions, 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
2 § 1003.23(b)(4), Desilva failed to argue before the BIA that
3 there had been changed circumstances in Sri Lanka.
4 Similarly, although Desilva argues here that the IJ erred in
5 denying his motion to reopen as a matter of discretion, he
6 did not raise any such argument to the BIA. In addition to
7 the statutory requirement that petitioners exhaust the
8 categories of relief they seek, 8 U.S.C. § 1252(d)(1),
9 petitioners must also raise to the BIA the specific issues
10 they later raise in this Court. See Foster v. INS, 376 F.3d
11 75, 78 (2d Cir. 2004). While not jurisdictional, this
12 judicially imposed exhaustion requirement is mandatory. Lin
13 Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d
14 Cir. 2007). Accordingly, because Desilva failed to
15 challenge the changed conditions finding or discretionary
16 denial in his appeal to the BIA, and because the Government
17 has raised this failure to exhaust, we decline to consider
18 these issues. See id. at 124 (describing the issue
19 exhaustion requirement as an “affirmative defense subject to
20 waiver.”).
21 Desilva argues, however, that the agency abused its
22 discretion in denying his motion because the time limitation
23 should have been excused based on ineffective assistance of
24 counsel. The deadline for filing a motion to reopen may be
25 equitably tolled to accommodate claims of ineffective
3
1 assistance of counsel, so long as the movant has exercised
2 “due diligence” in vindicating his rights. Cekic v. INS,
3 435 F.3d 167, 171 (2d Cir. 2006). Here, the agency did not
4 abuse its discretion in determining that Desilva failed to
5 exercise due diligence. Although Desilva had knowledge that
6 the appeal of the denial of his first motion to reopen was
7 dismissed by the BIA in September 2009, he waited more than
8 nine months and until he was detained by the Department of
9 Homeland Security before raising his ineffective assistance
10 of counsel claim, and did not indicate any steps taken to
11 pursue his claim during that time. See Rashid v. Mukasey,
12 533 F.3d 127, 132 (2d Cir. 2008) (holding that petitioner
13 failed to exercise due diligence when, after he knew or
14 should have known of his counsel’s ineffective assistance,
15 he waited 14 months to further pursue his case); Jian Hua
16 Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007) (holding that
17 waiting eight months after the receipt of relevant documents
18 did not demonstrate due diligence); Cekic, 435 F.3d at 172
19 (denying motion to reopen where petitioners’ “submissions in
20 support of their second motion to reopen fail[ed] to provide
21 even the slightest indication that they took any action to
22 protect themselves.”).
23 For the foregoing reasons, the petition for review is
24 DENIED. As we have completed our review, any stay of
25 removal that the Court previously granted in this petition
4
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
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5