Diarrassouba v. Garland ( 2022 )

20-1105
Diarrassouba v. Garland
BIA
A093 429 612
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 7th day of July, two thousand twenty-two.
PRESENT:
DEBRA ANN LIVINGSTON,
Chief Judge,
JON O. NEWMAN,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
OUSMANE DIARRASSOUBA, AKA
OUSMANG DIARRA SSOUBA,
Petitioner,
v. 20-1105
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jessica M. Greenberg, Esq.,
Division of Immigrant and Refugee
Services, Catholic Charities
Community Services, Archdiocese of
New York, New York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant
Attorney General; Bernard A.
Joseph, Senior Litigation Counsel;
Regina Byrd, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Ousmane Diarrassouba, a native and citizen of
Côte d’Ivoire, seeks review of a March 2, 2020 decision of
the BIA denying his motion to reopen his removal proceedings.
In re Ousmane Diarrassouba, No. A093 429 612 (B.I.A. Mar. 2,
2020). We assume the parties’ familiarity with the
underlying facts and procedural history.
Our review is limited to the BIA’s decision denying
Diarrassouba’s motion to reopen, because he did not timely
petition for review of the BIA’s underlying decisions. See
Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89–90 (2d
Cir. 2001). We review the denial of a motion to reopen for
abuse of discretion. Id. at 93; Ali v. Gonzales, 448 F.3d
515, 517 (2d Cir. 2006). An abuse of discretion may be found
where the BIA’s decision “provides no rational explanation,
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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 v. BIA, 413 F.3d 232,
233–34 (2d Cir. 2005) (quotation marks omitted).
A noncitizen may file one motion to reopen no later than
90 days after the final administrative decision is rendered.
8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).
It is undisputed that Diarrassouba’s motion was untimely, as
the BIA dismissed his appeal in June 2017, and he did not
file his motion to reopen until August 2018. 8 U.S.C.
§ 1229a(c)(7)(C)(i). The BIA may exercise equitable tolling
of the limitations period for a noncitizen who demonstrates
both ineffective assistance of counsel and due diligence in
pursuing that ineffective assistance claim. See Rashid v.
Mukasey, 533 F.3d 127, 130–31 (2d Cir. 2008). The noncitizen
bears the burden to establish that he was diligent, and
failure to do so is fatal to his claim even if counsel was
ineffective. Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006)
(“[N]o matter how egregiously ineffective counsel’s
assistance may have been, an alien will not be entitled to
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equitable tolling unless he can affirmatively demonstrate
that he exercised reasonable due diligence during the time
period sought to be tolled.”). Whether the noncitizen acted
within a reasonable amount of time depends on the
circumstances of each case, “namely, whether and when the
ineffective assistance was, or should have been, discovered
by a reasonable person in the situation.” Jian Hua Wang v.
BIA, 508 F.3d 710, 715 (2d Cir. 2007) (quotation marks and
brackets omitted).
The BIA did not abuse its discretion in determining that
Diarrassouba did not demonstrate due diligence as required
for equitable tolling. Id. Diarrassouba knew or should have
known that counsel was ineffective in 2013, because he alleged
in his affidavit, submitted to the BIA, that he knew then
that counsel had included fabricated or mistaken information
in his application, or in 2015, when he found himself
unprepared to testify at his hearing. Diarrassouba did not
explain why he waited until 2018 to retain new counsel and
move to reopen beyond stating that he tried to “ignore” his
concerns. Thus, the agency did not err in finding he failed
to show reasonable due diligence in pursuing his rights. See
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Rashid, 533 F.3d at 132.
Finally, we lack jurisdiction to review the BIA’s
“entirely discretionary” decision not to reopen sua sponte
under 8 C.F.R. § 1003.2(a). Ali, 448 F.3d at 518.
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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