Bah v. Holder , 452 F. App'x 18 ( 2011 )

10-4741-ag
Bah v. Holder
BIA
Rohan, IJ
A073 679 905
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 November, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 PETER W. HALL,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _______________________________________
13
14 AHOUNO JULIEN BAH,
15 Petitioner,
16
17 v. 10-4741-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Brian I. Kaplan, Goldberg &
25 Kaplan, LLP, New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Richard M. Evans, Assistant
29 Director; Andrew Oliveira, Trial
30 Attorney, Office of Immigration
31 Litigation, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Petitioner Ahouno Julien Bah, a native and citizen of
6 the Ivory Coast, seeks review of an October 19, 2010,
7 decision of the BIA affirming a December 15, 2008, decision
8 of Immigration Judge (“IJ”) Patricia A. Rohan, which denied
9 his motion to reopen his removal proceedings. In re Ahouno
10 Julien Bah, No. A073 679 905 (B.I.A. Oct. 19, 2010), aff’g
11 No. A073 679 905 (Immig. Ct. N.Y. City Dec. 15, 2008). We
12 assume the parties’ familiarity with the underlying facts
13 and procedural history in this case.
14 We review the BIA’s decision to affirm an IJ’s denial
15 of a motion to reopen for abuse of discretion. Iavorski v.
16 INS, 232 F.3d 124, 128 (2d Cir. 2000). An alien seeking to
17 reopen proceedings is required to file a motion to reopen no
18 later than 90 days after the date on which the final
19 administrative decision was rendered. See 8 U.S.C.
20 § 1229a(c)(7)(C)(i); 8 C.F.R. §§ 1003.2(c)(2),
21 1003.23(b)(1). Bah’s motion to reopen was filed more than
22 twelve years after his final order of removal was rendered.
23 Accordingly, the BIA did not abuse its discretion in denying
24 Bah’s motion to reopen as untimely. See id.
2
1 Bah contends, however, that the time to file his motion
2 to reopen should have been equitably tolled due to his prior
3 counsel’s ineffective assistance. Ineffective assistance of
4 counsel may toll the time limitation on a motion to reopen
5 if the movant has exercised “due diligence” in pursuing his
6 claim. See Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir.
7 2008). Due diligence must be established both before and
8 after discovery of the alleged ineffective assistance. See
9 id. at 132; Iavorski, 232 F.3d at 134.
10 Bah argues that he exercised due diligence because he
11 remained in contact with his prior counsel until 2005, was
12 not advised that he could move to reopen proceedings based
13 on changed country conditions in the Ivory Coast, and
14 therefore had no opportunity to discover his prior counsel’s
15 ineffective assistance. However, as Bah concedes, he did
16 not file his motion to reopen until December 2008, even
17 though he had been unable to contact his prior counsel since
18 2005 and knew of counsel’s ineffective assistance since at
19 least 2007. Under these circumstances, the BIA did not
20 abuse its discretion in denying Bah’s motion to reopen due
21 to his failure to exercise due diligence. See Rashid, 533
22 F.3d at 130; Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d
23 Cir. 2007).
3
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
4