Opre v. Lynch , 648 F. App'x 20 ( 2016 )

10-4266 (L)
Opre v. Lynch
BIA
A026 815 017
A075 834 119
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 28th day of April, two thousand sixteen.
PRESENT:
JOHN M. WALKER, JR.,
ROSEMARY S. POOLER,
PETER W. HALL,
Circuit Judges.
_____________________________________
AFRIM OPRE, ADRIANA OPRE,
Petitioners,
v. 10-4266 (L);
11-801 (Con),
11-2430 (Con)
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Jeffrey M. Okun, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Richard M. Evans, Assistant
Director; Nancy E. Friedman, Senior
Litigation Counsel, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of
decisions of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petitions for
review are DENIED.
Petitioners Afrim Opre, a native and citizen of
Macedonia, and his wife Adriana Opre, a native and citizen of
Albania, seek review of the October 20, 2010, February 11,
2011, and May 27, 2011, decisions of the BIA denying their
motions to reopen their removal proceedings and for
reconsideration. In re Afrim Opre, Adriana Opre, Nos. A026
815 017/075 834 119 (B.I.A. Oct. 20, 2010), (B.I.A. Feb. 11,
2011), (B.I.A. May 27, 2011). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We review the BIA’s denial of a motion to reopen or
reconsider for abuse of discretion. See Kaur v. BIA, 413 F.3d
232, 233 (2d Cir. 2004) (per curiam); Khouzam v. Ashcroft, 361
F.3d 161, 165 (2d Cir. 2004). An abuse of discretion may be
found where the BIA’s decision “provides no rational
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explanation, inexplicably departs from established policies,
is devoid of any reasoning, or contains only summary or
conclusory statements; that is to say, where the Board has
acted in an arbitrary or capricious manner.” Kaur, 413 F.3d
at 233-34 (internal quotation marks omitted); Ke Zhen Zhao v.
DOJ, 265 F.3d 83, 93 (2d Cir. 2001).
I. Motions to Reopen
An alien seeking to reopen proceedings is required to
file a motion to reopen no later than 90 days after the date
on which the final administrative decision was rendered, and
is permitted to file only one such motion. See 8 U.S.C.
§ 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). There is no
dispute that Petitioners’ August 2010, November 2010, and
March 2011 motions to reopen were untimely, because the BIA
issued Petitioners’ final order of removal in July 2007.
There is also no dispute that Petitioners’ November 2010 and
March 2011 motions to reopen were number-barred because
Petitioners first sought reopening in August 2010. See 8
U.S.C. § 1229a(c)(7)(A).
A. Diligence
Under the doctrine of equitable tolling, ineffective
assistance of counsel may toll the time limitation on a motion
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to reopen where the movant has exercised “due diligence” in
pursuing his claim. See Rashid v. Mukasey, 533 F.3d 127, 131
(2d Cir. 2008). Aliens are required to exercise due diligence
both before and after they have or should have discovered the
alleged ineffective assistance. Id. at 132; Iavorski v. INS,
232 F.3d 124, 134 (2d Cir. 2000) (noting that “[e]quitable
tolling requires a party to pass with reasonable diligence
though [sic] the period it seeks to have tolled” (quotation
omitted; emphasis added)). We have noted that “there is no
period of time which we can say is per se unreasonable, and,
therefore, disqualifies a petitioner from equitable
tolling–or, for that matter, any period of time that is per se
reasonable.” Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.
2007).
The BIA did not abuse its discretion in denying
Petitioners’ August 2010 motion as untimely due to their
failure to exercise diligence in pursuing their ineffective
assistance of counsel claims. See Rashid, 533 F.3d at 131.
In her affidavit in support of the August 2010 motion, Adriana
represented that she and Afrim “contacted Mr. Christo in 2007
at or about the time of the issuance of the appeal” and
“provided $3,000.00 to [] Christo to file a motion to reopen.”
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However, because these representations do not demonstrate
diligence throughout the entire period sought to be tolled,
the BIA reasonably concluded that her affidavit provided no
basis for tolling. See Rashid, 533 F.3d at 133.
Petitioners’ contention that their allegations in their
February 2011 motion established diligence is without merit.
In that motion, Petitioners represented that Okun informed
Afrim in September 2009 that he needed “to have a payment made
to his office in advance of commencing work,” and subsequently
notified Afrim in Fall 2009 and May 2010 that he had not yet
received any funds. While Adriana attested that she believed
that Okun was working on their motion to reopen from September
2009 to August 2010 and that she had delegated responsibility
for overseeing the matter to Afrim, the BIA reasonably
determined that such statements did not reflect diligence on
her part. See Rashid, 533 F.3d at 131.
Petitioners also failed to demonstrate sufficient
diligence in their March 2011 motion in which they argued, for
the first time, that Okun may have implied that he would work
on their case before receiving payment. However, the BIA
reasonably noted that these assertions could have been raised
earlier, and did not excuse the untimely and number-barred
filing of Petitioners’ third motion.
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B. Denial of Extension
Petitioners also appear to argue that the BIA violated
their due process rights by failing to grant their motion for
an extension of time to supplement the record, in connection
with their August 2010 motion to reopen. “To establish a
violation of due process, an alien must show ‘that she was
denied a full and fair opportunity to present her claims’ or
‘that the IJ or BIA otherwise deprived her of fundamental
fairness.’” Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.
2007) (quoting Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d
144, 155 (2d Cir. 2006)). In denying their motion for
extension, the BIA reasonably noted that Petitioners had
waited three years to file their first untimely motion to
reopen and failed to provide sufficient justification for that
delay. Because Petitioners have failed to demonstrate that
any extension was required or merited, they are unable to show
that they were denied fundamental fairness or a full and fair
opportunity to present their claims. See Burger, 498 F.3d at
134.
C. Departure Bar
The BIA did not abuse its discretion in denying Afrim’s
August 2010 and November 2010 motions to reopen due to
application of the departure bar, as the BIA’s denials were
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consistent with then-existing controlling precedent. See Xue
Yong Zhang v. Holder, 617 F.3d 650, 660-61 (2d Cir. 2010).
Moreover, because Petitioners fail to identify any flaw in the
BIA’s reasoning that its prior findings with respect to
Adriana’s lack of diligence applied equally to Afrim, they
have not shown any abuse of discretion.
D. Denial of Stays
Any requests for stays of removal are moot given our
denial of these petitions. Regardless, there was no due
process violation. Afrim contends that “[t]here was ample
reason to grant the stay of removal to give time to show the
likelihood of success.” However, it was his burden to
demonstrate his entitlement to a stay, and his failure to do
so did not, as his argument suggests, necessitate that his
motion be granted. He cites no authority that he was entitled
to a stay or that an extension was merited or required, and he
has failed to establish that he was denied fundamental
fairness or a full and fair opportunity to present his claim,
as needed to demonstrate a due process violation. See Burger,
498 F.3d at 134. We decline to consider Petitioners’
unsupported allegation that the BIA has an undisclosed policy
of fast-tracking motions to reopen when they are accompanied
by stay requests. Yueqing Zhang v. Gonzales, 426 F.3d 540,
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545 n.7 (2d Cir. 2005) (deeming abandoned Petitioner’s
challenge to IJ’s finding because he “devote[d] only a single
conclusory sentence to the argument”).
II. Motions to Reconsider
A motion to reconsider must specify errors of fact or law
in the BIA’s decision and be supported with pertinent
authority. See 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao, 265
F.3d at 90. Because the BIA did not err in denying
Petitioners’ August 2010 motion to reopen, which Petitioners
conceded was not completed, the BIA did not abuse its
discretion in denying reconsideration of that decision.
Moreover, as “[a] party may file only one motion to reconsider
any given decision and may not seek reconsideration of a
decision denying a previous motion to reconsider,” 8 C.F.R.
§ 1003.2(b)(2), the BIA did not abuse its discretion in
denying Petitioners’ March 2011 motion to reconsider a prior
denial of reconsideration. See Ke Zhen Zhao, 265 F.3d at 90.
For the foregoing reasons, the petitions for review are
DENIED. As we have completed our review, the motion for a
stay of removal in this petition is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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