Krioutchkov v. Holder ( 2011 )

09-4312-ag
Krioutchkov v. Holder
BIA
A071 959 970
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 17th day of February, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 PETER W. HALL,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 NIKOLAI KRIOUTCHKOV,
15 Petitioner,
16
17 v. 09-4312-ag
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONER: Marina Alexandrovich, Tempe,
26 Arizona.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Paul Fiorino, Senior
30 Litigation Counsel; Judith R.
31 O’Sullivan, Trial Attorney, Office
1 of 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 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
8 review is DENIED.
9 Nikolai Krioutchkov, a native of the former Union of
10 Soviet Socialist Republics and a citizen of Russia, seeks
11 review of a September 17, 2009, order of the BIA denying his
12 motion to reopen his removal proceedings. In re Nikolai
13 Krioutchkov, No. A071 959 970 (B.I.A. Sept. 17, 2009). We
14 assume the parties’ familiarity with the underlying facts
15 and procedural history of the case.
16 We review the BIA’s denial of a motion to reopen for
17 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
18 (2d Cir. 2006). An alien who has been ordered removed may
19 file one motion to reopen, but must do so within 90 days of
20 the final administrative decision. See 8 U.S.C. §
21 1229a(c)(7). Here, the BIA did not abuse its discretion by
22 denying Krioutchkov’s motion to reopen as untimely and
23 number-barred, as his motion was filed in March 2009, more
24 than three years after the entry of his October 2005 final
2
1 order of removal and the denial of his first motion to
2 reopen. See id.; 8 C.F.R. § 1003.2(c)(2).
3 Under the doctrine of equitable tolling, ineffective
4 assistance of counsel can extend the filing deadline for an
5 alien’s motion to reopen. See Cekic v. INS, 435 F.3d 167,
6 170-71 (2d Cir. 2006). In order to warrant equitable
7 tolling, however, the alien is required to demonstrate that
8 he exercised “due diligence” in pursuing his claims during
9 “both the period of time before the ineffective assistance
10 of counsel was or should have been discovered and the period
11 from that point until the motion to reopen is filed.” See
12 Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008). We
13 have noted that “there is no period of time which we can say
14 is per se unreasonable, and, therefore, disqualifies a
15 petitioner from equitable tolling–or, for that matter, any
16 period of time that is per se reasonable.” Jian Hua Wang v.
17 BIA, 508 F.3d 710, 715 (2d Cir. 2007).
18 The BIA did not act arbitrarily or capriciously in
19 concluding that Krioutchkov failed to demonstrate that he
20 exercised due diligence during the three year period prior
21 to filing his second motion to reopen. See id. Krioutchkov
22 concedes that his prior counsel timely informed him that his
3
1 appeal had been dismissed and that he knowingly remained in
2 the United States despite the BIA’s final order of removal.
3 In his brief to the BIA, Krioutchkov did not explain why he
4 did not follow up with his prior counsel at the time he was
5 informed of the BIA’s dismissal of his appeal or the denial
6 of his first motion to reopen, actions which could have
7 alerted him to his prior counsel’s failure to file a brief
8 to the BIA and the basis for the denial of reopening. See
9 Rashid, 533 F.3d at 132, 132 n.3 (holding that although this
10 Court has recognized that aliens in deportation proceedings
11 reasonably rely on “assurances [from counsel] that their
12 case[s][are] being pursued,” under certain circumstances, an
13 alien can be expected to comprehend that he has received
14 ineffective assistance without being explicitly told so by
15 an attorney (internal quotation marks omitted) (alterations
16 in Rashid)).1 Accordingly, the BIA’s due diligence finding
17 was not an abuse of discretion. See Jian Hua Wang, 508 F.3d
18 at 715. Because the BIA did not abuse its discretion in
19 finding a lack of due diligence, we need not reach the
1
We decline to consider Krioutchkov’s unexhausted
and unsupported argument that “[his prior counsel]
instructed [him] to wait till [sic] adjudication of the
I-130 immigration visa petition by [his] U.S. citizen
wife.” Petr.’s Br. 18. See Lin Zhong v. U.S. Dep’t of
Justice, 480 F.3d 104, 121-122 (2d Cir. 2006).
4
1 merits of the underlying ineffective assistance claim. See
2 Cekic, 435 F.3d at 170-171.
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. All other pending
8 motions are DENIED. Any pending request for oral argument
9 in this petition is DENIED in accordance with Federal Rule
10 of Appellate Procedure 34(a)(2), and Second Circuit Local
11 Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
5