Shalamberidze v. Holder ( 2013 )

12-379
Shalamberidze v. Holder
BIA
Vomacka, IJ
A097 129 785
A097 129 786
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 3rd day of September, two thousand thirteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DEBRA ANN LIVINGSTON,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 AVTANDIL SHALAMBERIDZE, MIRANDA
14 GABUNIA,
15 Petitioners,
16
17 v. 12-379
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
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1 FOR PETITIONER: Daniel D. Estrin, Brooklyn, New
2 York.
3
4 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
5 Attorney General; Terri J. Scadron,
6 Assistant Director; Manuel A. Palau,
7 Trial Attorney, Office of
8 Immigration Litigation, United
9 States Department of Justice,
10 Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED that the petition for review
15 is DENIED.
16 Petitioners Avtandil Shalamberidze and Miranda Gabunia,
17 natives of the former U.S.S.R. and citizens of Georgia, seek
18 review of a January 12, 2012, decision of the BIA affirming
19 the July 28, 2010, decision of Immigration Judge (“IJ”) Alan
20 Vomacka denying their motion to reopen. In re Avtandil
21 Shalamberidze, Miranda Gabunia, No. A097 129 785/786 (B.I.A.
22 Jan. 12, 2012), aff’g No. A097 129 785/786 (Immig. Ct. N.Y.
23 City July 28, 2010). We assume the parties’ familiarity
24 with the underlying facts and procedural history in this
25 case.
26 We review the BIA’s decision to affirm an IJ’s denial
27 of a motion to reopen for abuse of discretion. Cekic v.
28 INS, 435 F.3d 167, 170 (2d Cir. 2006). An alien seeking to
2
1 reopen proceedings is required to file a motion to reopen no
2 later than 90 days after the date on which the final
3 administrative decision was rendered. See 8 U.S.C.
4 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1). There is no
5 dispute that the petitioners’ motion to reopen was untimely
6 because it was filed over eighteen months after the IJ
7 ordered them removed in February 2005.
8 The petitioners contend, however, that the time
9 limitation should be tolled because their former counsel
10 failed to timely file an appeal of the IJ’s February 2005
11 decision, which constituted ineffective assistance of
12 counsel. The time limitation for a motion to reopen may be
13 tolled due to ineffective assistance of counsel, provided
14 that the movants: (1) allege facts sufficient to show that
15 competent counsel would have acted otherwise and that they
16 were prejudiced by the ineffective assistance; and
17 (2) establish that they exercised due diligence in pursuing
18 their claim. See Rashid v. Mukasey, 533 F.3d 127, 131 (2d
19 Cir. 2008).
20 The IJ did not err in finding that the petitioners did
21 not demonstrate due diligence in pursuing their claim, as
22 they did not adequately explain their delay of seven months
3
1 between learning of their former counsel’s conduct and
2 filing their motion to reopen. See Cekic, 435 F.3d at 171;
3 Jian Hua Wang v. BIA, 508 F.3d 710, 715-16 (2d Cir. 2007)
4 (affirming agency’s finding that the petitioner did not
5 demonstrate due diligence where he did not explain why he
6 delayed five months between filing a complaint against his
7 former counsel and filing his motion to reopen).
8 Petitioners’ argument to the BIA that they needed time to
9 obtain and review their complete immigration court case file
10 was not raised before the IJ and was not based on previously
11 unavailable evidence, and thus the BIA did not err in
12 declining to consider this argument or remand to the IJ for
13 further fact-finding. See 8 C.F.R. §§ 1003.1(d)(3)(iv),
14 1003.2(c)(1). Accordingly, the agency did not abuse its
15 discretion in denying the petitioners’ untimely motion to
16 reopen.
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
4
1 Federal Rule of Appellate Procedure 34(a)(2) and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5