Mijanul v. Sessions ( 2018 )

17-2842 (L)
Mijanul v. Sessions
BIA
A096 154 860
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 TO 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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 5th day of November, two thousand eighteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 AKRAM MIJANUL, MIJANUL AKRAM,
14 Petitioner,
15
16 v. 17-2842 (L);
17 18-394 (Con)
18 NAC
19 JEFFERSON B. SESSIONS III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gregory Marotta, Vernon, NJ.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Jonathan A.
28 Robbins, Assistant Director;
29 Nicole Nardone, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of
32 Justice, Washington, DC.
1 UPON DUE CONSIDERATION of these petitions for review of
2 decisions of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petitions for
4 review are DENIED.
5 Petitioner Akram Mijanul, a native and citizen of
6 Bangladesh, seeks review of August 17, 2017 and January 30,
7 2018, decisions of the BIA denying his motions to reopen and
8 reconsider. In re Akram Mijanul, No. A 096 154 860 (B.I.A.
9 Aug. 17, 2017 and Jan. 30, 2018). We assume the parties’
10 familiarity with the underlying facts and procedural history
11 in this case.
12 As an initial matter, because Mijanul’s petitions are
13 timely filed only as to the BIA’s 2017 and 2018 decisions
14 denying his motions to reopen and reconsider, our review is
15 limited to those decisions, and we may not consider any direct
16 challenge to the BIA’s 2012 decision finding waived any
17 challenge to the immigration judge’s conclusion that Mijanul
18 filed a frivolous asylum application. See Ke Zhen Zhao v.
19 U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).
20 For the reasons stated below, we find no error in the denial
21 of reopening and reconsideration.
22 Motion to Reopen
23 We review the agency’s denial of a motion to reopen for
2
1 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
2 Cir. 2006). It is undisputed that Mijanul’s May 2017 motion
3 to reopen was untimely because it was filed more than four
4 years after his 2012 final order of removal. See 8 U.S.C.
5 § 1229a(c)(7)(C)(i) (providing 90-day deadline for motions to
6 reopen). Mijanul argued that the time for filing should be
7 tolled based on ineffective assistance of counsel. Although
8 the deadline may be tolled based on ineffective assistance,
9 a movant must show diligence during “the period of time before
10 the ineffective assistance of counsel was or should have been
11 discovered” and “from that point until the motion to reopen
12 is filed.” Rashid v. Mukasey, 533 F.3d 127, 130-32 (2d Cir.
13 2008). “[T]here is no period of time which . . . is per se
14 unreasonable, and, therefore, disqualifies a petitioner from
15 equitable tolling–or, for that matter, any period of time
16 that is per se reasonable.” Jian Hua Wang v. BIA, 508 F.3d
17 710, 715 (2d Cir. 2007).
18 The BIA did not err in concluding that Mijanul failed to
19 demonstrate due diligence. Id. (providing that “petitioner
20 bears the burden of proving that he has exercised due
21 diligence.”). First, the BIA’s 2012 decision informed
22 Mijanul that he had forfeited his appeal by failing to file
23 a brief, that he had waived any challenge to the frivolousness
3
1 determination, and that the frivolousness determination
2 rendered him ineligible for future benefits. Second, Mijanul
3 conceded that shortly thereafter his attorney admitted error
4 in failing to timely file a brief. Because Mijanul waited
5 more than four years to move to reopen, the agency reasonably
6 determined that he failed to demonstrate due diligence during
7 the entire period he sought to toll. See id. (citing several
8 cases in which the Court held that “a petitioner who waits
9 two years or longer to take steps to reopen . . . failed to
10 demonstrate due diligence”). Absent due diligence, there is
11 no basis for tolling the time based on ineffective assistance.
12 See Rashid, 533 F.3d at 131 (explaining that “no matter how
13 egregiously ineffective counsel’s assistance may have been”
14 a failure to affirmatively demonstrate due diligence
15 forecloses equitable tolling of an untimely motion to
16 reopen).
17 Reconsideration
18 We review the agency’s denial of a motion to reconsider
19 for abuse of discretion. See Jin Ming Liu v. Gonzales, 439
20 F.3d 109, 111 (2d Cir. 2006). A motion to reconsider must
21 “specify the errors of law or fact” in the agency’s prior
22 decision. See 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R.
23 § 1003.2(b)(1); see also Ke Zhen Zhao, 265 F.3d at 90. “A
4
1 motion for reconsideration is a request that the Board
2 reexamine its decision in light of additional legal
3 arguments, a change of law, or perhaps an argument or
4 aspect of the case which was overlooked.” Jin Ming Liu,
5 439 F.3d at 111 (internal quotation marks and citation
6 omitted).
7 Mijanul does not identify an error of law or fact or an
8 argument that was overlooked in the BIA’s denial of reopening.
9 Moreover, his motion to reconsider repeated arguments from
10 his motion to reopen. See id. at 111 (“The BIA does not
11 abuse its discretion by denying a motion to reconsider where
12 the motion repeats arguments that the BIA has previously
13 rejected.”). To the extent Mijanul now directly challenges
14 the frivolousness determination, it is not before us because
15 no petition for review was filed from the 2012 decision. See
16 Ke Zhen Zhao, 265 F.3d at 89-90.
17 Nor did the BIA abuse its discretion in construing
18 Mijanul’s motion for reconsideration as also requesting
19 reopening based on his submission of a new affidavit because
20 new evidence is a ground for reopening, not reconsideration.
21 Compare 8 C.F.R. § 1003.2(b)(1) and 1003.2(c)(1). As a
22 motion to reopen, it was both time and number barred. See 8
23 U.S.C. § 1229a(c)(7)(A), (C)(i). Moreover, the new affidavit
5
1 reiterated the ineffective assistance claim, which, for the
2 reasons explained above, does not excuse the untimely filing.
3 See Rashid, 533 F.3d at 132.
4 For the foregoing reasons, the petitions for review are
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted is VACATED, and any pending
7 motion for a stay of removal is DISMISSED as moot. Any
8 pending request for oral argument in connection with these
9 petitions is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
6