DocketNumber: 09-0138-ag
Citation Numbers: 359 F. App'x 262
Judges: Gerard, Katzmann, Lynch, Parker, Roberta
Filed Date: 1/8/2010
Status: Non-Precedential
Modified Date: 8/1/2023
09-0138-ag Teoh v. Holder BIA A073 539 076 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 8 th day of January, two thousand ten. 5 6 PRESENT: 7 8 ROBERT A. KATZMANN, 9 BARRINGTON D. PARKER, 10 GERARD E. LYNCH, 11 Circuit Judges. 12 _________________________________________ 13 14 POHTEIK TEOH, 15 Petitioner, 16 17 v. 09-0138-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _________________________________________ 23 24 FOR PETITIONER: Maria Isabel A.N. Thomas, Thomas & 25 Thomas LLC, New York, New York. 26 27 FOR RESPONDENT: Tony West, Assistant Attorney 28 General; Emily Anne Radford, 29 Assistant Director; Craig A. Newell, 30 Jr., Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, D.C. 4 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 Pohteik Teoh, a native and citizen of 10 Malaysia, seeks review of the December 12, 2008 order of the 11 BIA, which denied his motion to reopen. In re Pohteik Teoh, 12 No. A073 539 076 (B.I.A. Dec. 12, 2008). We assume the 13 parties’ familiarity with the underlying facts and 14 procedural history of the case. 15 We review the BIA’s denial of a motion to reopen for 16 abuse of discretion. See Kaur v. BIA,413 F.3d 232
, 233 (2d 17 Cir. 2005) (per curiam). Here, the BIA did not abuse its 18 discretion in denying Teoh’s motion to reopen as untimely 19 because he filed it in July 2008, over 12 years after the 20 agency issued its final order of removal. See 8 C.F.R. 21 § 1003.2(c)(2). 22 When ineffective assistance of counsel prevents an 23 alien from presenting his claim, the filing deadline for 24 motions to reopen may be equitably tolled. Cekic v. INS, 2 1435 F.3d 167
, 170 (2d Cir. 2006). However, in order to 2 warrant equitable tolling, an alien is required to 3 demonstrate that he exercised “due diligence” in pursuing 4 his claims during “both the period of time before the 5 ineffective assistance of counsel was or should have been 6 discovered and the period from that point until the motion 7 to reopen is filed.” See Rashid v. Mukasey,533 F.3d 127
, 8 132 (2d Cir. 2008). We have noted that “there is no period 9 of time which we can say is per se unreasonable, and, 10 therefore, disqualifies a petitioner from equitable 11 tolling–or, for that matter, any period of time that is per 12 se reasonable.” Jian Hua Wang v. BIA,508 F.3d 710
, 715 (2d 13 Cir. 2007). 14 The BIA found that Teoh failed to demonstrate that he 15 acted with due diligence in pursuing his ineffective 16 assistance of counsel claim between June 2005, when he 17 married a U.S. citizen, and April 2008, when he consulted 18 with new counsel. See Jian Hua Wang v. BIA,508 F.3d 710
, 19 715 (2d Cir. 2007) (finding that waiting 8 months after the 20 receipt of documents through FOIA to file the motion to 21 reopen did not demonstrate due diligence). Although Teoh 22 argues that his motion should be equitably tolled, he does 3 1 not actually challenge the BIA’s finding that he failed to 2 exercise due diligence in his opening brief to this Court. 1 3 Thus, he has waived any such challenge. See Yueqing Zhang 4 v. Gonzales,426 F.3d 540
, 541 n.1, 545 n.7 (2d Cir. 2005). 5 To the extent that Teoh argues that the BIA erred in 6 failing to consider the equities in his case and declining 7 to reopen his case sua sponte, we lack jurisdiction to 8 consider those arguments. See Azmond Ali v. Gonzales, 448 9F.3d 515
, 518 (2d Cir. 2006) (finding that this Court lacks 10 jurisdiction to consider the BIA’s decision not to reopen a 11 case sua sponte under8 C.F.R. § 1003.2
(a), because such a 12 decision is “entirely discretionary”). 13 Finally, because Teoh’s failure to exercise due 14 diligence was entirely dispositive of his motion, we need 15 not consider his challenge to the BIA’s alternative finding 16 that he failed to comply with the requirements set forth in 17 Matter of Lozada,19 I. & N. Dec. 637
, 639 (BIA 1988), or 18 that he was prejudiced by his counsel’s purportedly 19 ineffective assistance. See Rashid,533 F.3d at 132
. 1 Teoh’s argument in his reply brief does not suffice. See McCarthy v. S.E.C.,406 F.3d 179
, 186 (2d Cir. 2005) (finding that “arguments not raised in an appellant’s opening brief, but only in his reply brief are not properly before an appellate court”). 4 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(b). 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 12 By:___________________________ 5
Rashid v. Mukasey , 533 F.3d 127 ( 2008 )
Yueqing Zhang v. Alberto Gonzales, United States Attorney ... , 426 F.3d 540 ( 2005 )
Jian Hua Wang v. Board of Immigration Appeals , 508 F.3d 710 ( 2007 )
Edin Cekic and Samka Cekic v. Immigration and ... , 435 F.3d 167 ( 2006 )
Edward John McCarthy v. Securities and Exchange Commission , 406 F.3d 179 ( 2005 )
Sukhraj Kaur v. Board of Immigration Appeals , 139 F. App'x 341 ( 2005 )