Mamudoski-Ajvaz v. Holder

11-3099
Mamudoski-Ajvaz v. Holder
BIA
A029 941 216
A029 941 217
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 4th day of April, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _________________________________________
13
14 ADEM MAMUDOSKI-AJVAZ, NAKSIE MAMUDOSKA,
15 Petitioners,
16
17 v. 11-3099
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________
23
24 FOR PETITIONERS: Sokol Braha, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Terri J. Scadron, Assistant
28 Director; Kathryn L. DeAngelis,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 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 Petitioners Adem Mamudoski-Ajvaz and Naksie Mamudoska,
6 natives of the former Yugoslavia and citizens of Macedonia,
7 seek review of a July 14, 2011, decision of the BIA denying
8 their second motion to reopen. In re Adem Mamudoski-Ajvaz,
9 Naksie Mamudoska, Nos. A029 941 216/217 (B.I.A. July 14,
10 2011). We assume the parties’ familiarity with the
11 underlying facts and procedural history in this 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). Aliens seeking to reopen proceedings may file
15 one motion to reopen no later than 90 days after the date on
16 which the final administrative decision was rendered.
17 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).
18 Indisputably, petitioners’ 2010 motion was untimely and
19 number-barred because it was their second motion to reopen
20 and it was filed more than 13 years after the final
21 administrative order in their deportation proceedings. See
22 8 U.S.C. § 1229a(c)(7)(A), (C); see also 8 C.F.R.
2
1 § 1003.2(c)(2). Moreover, the BIA did not abuse its
2 discretion in declining to equitably toll the time
3 limitation for filing their motion to reopen based on their
4 claim of ineffective assistance of counsel.
5 In order to warrant equitable tolling, even assuming
6 that prior counsel was ineffective, an alien is required to
7 demonstrate due diligence in pursuing the claim during “both
8 the period of time before the ineffective assistance of
9 counsel was or should have been discovered and the period
10 from that point until the motion to reopen is filed.”
11 Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008); see
12 also Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006). As the
13 BIA concluded, petitioners failed to demonstrate due
14 diligence. They did not allege any action to discover or
15 pursue ineffective assistance between the denial of relief
16 from deportation in 1996 and their motion to reopen based on
17 that claim in 2010. See Jian Hua Wang v. BIA, 508 F.3d 710,
18 715 (2d Cir. 2007). This conclusion is dispositive of the
19 petition for review insofar as it relates to petitioners’
20 ineffective assistance of counsel claim. We decline to
21 consider the parties’ alternative arguments.
22
3
1 Remand for the BIA to explicitly consider the request
2 for sua sponte reopening based on good moral character and
3 ties to the United States would be futile. See Alam v.
4 Gonzales, 438 F.3d 184, 187-88 (2d Cir. 2006). The BIA
5 previously denied as untimely petitioners’ motion to reopen
6 based on these factors, and, in the instant motion, they did
7 not assert that they were eligible for any new forms of
8 relief. See Matter of G-D-, 22 I. & N. Dec. 1132, 1133-34
9 (BIA 1999) (“[W]e invoke our sua sponte authority sparingly,
10 treating it not as a general remedy for any hardships
11 created by enforcement of the time and number limits in the
12 motions regulations, but as an extraordinary remedy reserved
13 for truly exceptional situations.”).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
4