Solano v. Holder ( 2014 )

12-2105
Solano v. Holder
BIA
A038 260 329
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of May, two thousand fourteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 ROSEMARY S. POOLER,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 MARCIAL AVILA SOLANO,
14 Petitioner,
15
16 v. 12-2105
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Matthew L. Guadagno, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Douglas E.
28 Ginsburg, Assistant Director;
29 Matthew B. George, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 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 Marcial Avila Solano, a native and citizen
6 of Honduras, seeks review of an April 25, 2012, decision of
7 the BIA denying his motion to reopen his removal
8 proceedings. In re Marcial Avila Solano, No. A038 260 329
9 (B.I.A. Apr. 25, 2012). We assume the parties’ familiarity
10 with the underlying facts and procedural history in this
11 case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
14 Cir. 2006). An alien seeking to reopen proceedings is
15 required to file a motion to reopen no later than 90 days
16 after the final administrative decision was rendered, and
17 may file only one such motion. See 8 U.S.C. §
18 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Since the
19 agency issued a final administrative order of removal in
20 December 2010, Avila Solano’s second motion to reopen, filed
21 in November 2011, was untimely as well as number-barred.
22 Avila Solano contends, however, that the time and
23 number limitations should be waived because his former
2
1 attorneys provided ineffective assistance by failing to
2 argue that the petitioner was entitled to relief under
3 former § 212(c) of the Immigration and Nationality Act
4 (“INA”) nunc pro tunc, on the ground that the former
5 Immigration and Naturalization Service (“INS”) had deprived
6 him of the opportunity to apply for this relief when it
7 erroneously failed to place him in exclusion proceedings
8 upon his return from brief pre-1996 trips abroad.
9 The time and numerical limitations on motions to reopen
10 may be tolled due to ineffective assistance of counsel,
11 provided that the movant demonstrates that counsel’s
12 performance was so ineffective as to have “impinged on the
13 fundamental fairness of the hearing.” See Jian Yun Zheng v.
14 U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir. 2005)
15 (internal quotation marks and citation omitted). Such a
16 showing must be supported by facts sufficient to show that
17 competent counsel would have acted otherwise, and that the
18 movant was prejudiced by counsel’s conduct. See Changxu
19 Jiang v. Mukasey, 522 F.3d 266, 270 (2d Cir. 2008).
20 The BIA did not abuse its discretion by finding that
21 his former counsel was not ineffective; the nunc pro tunc
22 argument was speculative at best. As the BIA observed,
3
1 Avila Solano’s nunc pro tunc argument appears inconsistent
2 with Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004),
3 which requires that individuals seeking § 212(c) relief
4 post-repeal who had been convicted at trial demonstrate
5 individualized reliance on the continuing availability of §
6 212(c) relief. See 369 F.3d, 634;see also Wilson v.
7 Gonzales, 471 F.3d 111, 122 (2d Cir. 2006).
8 Avila Solano cites a number of agency decisions for the
9 proposition that waivers of inadmissibility may be filed
10 nunc pro tunc without the need to show individualized
11 reliance. However, all predate the 1997 repeal of
12 § 212(c) or are otherwise not germane. For example, Edwards
13 v. INS concerned § 212(c) applicants who had been convicted
14 pursuant to guilty pleas. See 393 F.3d 299, 303, 305 (2d
15 Cir. 2004). Avila Solano’s reliance on Lovan v. Holder, 659
16 F.3d 653 (8th Cir. 2011), is also misplaced; the Eighth
17 Circuit does not require a showing of individualized
18 reliance. See 659 F.3d at 656 n.3.
19 Accordingly, the BIA did not abuse its discretion in
20 concluding that Avila Solano did not merit tolling of the
21 time and numerical limitations on the ground of ineffective
22 assistance of counsel. See Ke Zhen Zhao v. U.S. Dep’t of
23 Justice, 265 F.3d 83, 93 (2d Cir. 2001).
4
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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