Diallo v. Barr ( 2020 )

19-7
Diallo v. Barr
BIA
A 075 833 630
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 14th day of December, two thousand twenty.
5
6 PRESENT:
7 RAYMOND J. LOHIER, JR.,
8 MICHAEL H. PARK,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 MARIAMA DIOULDE DIALLO,
14 Petitioner,
15
16 v. 19-7
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael S. Henry, Esq.,
24 Philadelphia, PA.
25
26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
27 Assistant Attorney General;
28 Shelley R. Goad, Assistant
29 Director; Lisa Morinelli, Trial
1 Attorney, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Mariama Dioulde Diallo, a native and citizen
10 of Guinea, seeks review of a December 4, 2018, decision of
11 the BIA denying her motion to reopen. In re Mariama Dioulde
12 Diallo, No. A 075 833 630 (B.I.A. Dec. 4, 2018). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history.
15 We review the BIA’s denial of a motion to reopen for
16 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
17 Cir. 2006). An alien may file one motion to reopen no later
18 than 90 days after the final administrative decision is
19 rendered. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
20 § 1003.2(c)(2). It is undisputed that Diallo’s 2018 motion
21 to reopen was untimely because she filed it almost 19 years
22 after the IJ ordered her removal in absentia in 1999 and
23 approximately 16 years after the denial of her first motion
24 to reopen. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
2
1 § 1003.2(c)(2).
2 Under the doctrine of equitable tolling, this time limit
3 may be excused if an alien demonstrates ineffective
4 assistance of counsel as well as due diligence in pursuing
5 that claim. Rashid v. Mukasey, 533 F.3d 127, 130–31 (2d Cir.
6 2008); Jin Bo Zhao v. INS, 452 F.3d 154, 157-60 (2d Cir.
7 2006); Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006). The
8 movant bears the burden of proof to demonstrate that she “has
9 exercised due diligence in pursuing her claim.” Iavorski v.
10 U.S. INS, 232 F.3d 124, 135 (2d Cir. 2000). And a failure to
11 establish due diligence is fatal to an ineffective assistance
12 claim. Cekic, 435 F.3d at 171. A movant must “affirmatively
13 demonstrate that [s]he exercised reasonable due diligence
14 during the time period sought to be tolled.” Id. at 170.
15 “This includes both the period of time before the ineffective
16 assistance of counsel was or should have been discovered and
17 the period from that point until the motion to reopen is
18 filed.” Rashid, 533 F.3d at 132; Jian Hua Wang v. BIA, 508
19 F.3d 710, 715 (2d Cir. 2007) (diligence requires a case-by-
20 case inquiry into “whether and when the ineffective
21 assistance was, or should have been, discovered by a
22 reasonable person in the situation” (internal quotation marks
3
1 and alterations omitted)).
2 The BIA did not err in finding that Diallo failed to show
3 due diligence. Diallo waited 19 years from her removal order
4 and 16 years from the BIA’s denial of her first motion to
5 reopen before raising any allegation of ineffective
6 assistance. While there is no amount of time which is per se
7 unreasonable, Jian Hua Wang, 508 F.3d at 715, Diallo has not
8 provided evidence of diligence sufficient to account for such
9 an extended period. According to her affidavit, Diallo was
10 contemporaneously aware of her March 1999 in absentia removal
11 order, the IJ’s 1999 denial of her motion to reopen, and the
12 BIA’s affirmance of the IJ’s denial in 2002. She did not
13 specify when she learned that her former counsel surrendered
14 her law license. And she alleged inconsistently that she
15 learned of the ineffective assistance when her daughter filed
16 a visa petition on her behalf in 2016 or when her attorney
17 received the agency’s response to a Freedom of Information
18 Act (“FOIA”) request in 2018. Diallo does not assert that
19 she took any action to investigate her claims from 2002 until
20 filing the present motion in 2018 beyond stating that she
21 consulted with other attorneys “over the years, but did not
22 get anywhere.” See Cekic, 435 F.3d at 171. Given these vague
4
1 and inconsistent allegations, the BIA did not err in
2 concluding that Diallo did not show due diligence. Id. at
3 170–71; Jian Hua Wang, 508 F.3d at 715–16 (finding no due
4 diligence where petitioner filed motion eight months after
5 receiving BIA file in FOIA request and becoming aware of
6 ineffective assistance).
7 Finally, although the BIA has the authority to reopen
8 sua sponte despite the time limit, see 8 C.F.R. § 1003.2(a),
9 we lack jurisdiction to review that decision because that
10 authority is “entirely discretionary.” Ali, 448 F.3d at 518.
11 For the foregoing reasons, the petition for review is
12 DENIED. All pending motions and applications are DENIED and
13 stays VACATED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe,
16 Clerk of Court
5