Jahangir v. Holder

11-298-ag
Jahangir v. Holder
BIA
A079 077 555
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 10th day of February, two thousand twelve.
5
6 PRESENT:
7 JOSEPH M. MCLAUGHLIN,
8 GUIDO CALABRESI,
9 REENA RAGGI,
10 Circuit Judges.
11 _________________________________________
12
13 MOHAMMED JAHANGIR,
14 Petitioner,
15
16 v. 11-298-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Anthony W. Norwood, Greg D.
28 Mack, Senior Litigation Counsel,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 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 Mohammed Jahangir, a native and citizen of
6 Bangladesh, seeks review of the December 27, 2010, order of
7 the BIA denying his motion to reopen. In re Mohammed
8 Jahangir, No. A079 077 555 (B.I.A. Dec. 27, 2010). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history of the case.
11 The BIA’s denial of Jahangir’s motion to reopen as
12 untimely and number-barred was not an abuse of discretion.
13 See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per
14 curiam). An alien may file one motion to reopen, generally
15 no later than 90 days after the date on which the final
16 administrative decision was rendered in the proceedings
17 sought to be reopened. 8 U.S.C. § 1229a(c)(7)(A), (C)(i);
18 8 C.F.R. § 1003.2(c)(2). There is no dispute that
19 Jahangir’s 2010 motion was untimely and number-barred, as he
20 previously filed three motions to reopen, and the final
21 administrative order was issued in 2006. See 8 U.S.C.
22 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). In some
2
1 instances, however, the agency may excuse the time and
2 numerical limitations if an alien demonstrates ineffective
3 assistance of counsel. See Rabiu v. INS, 41 F.3d 879, 882
4 (2d Cir. 1994). To prevail on a claim of ineffective
5 assistance, an applicant must demonstrate that “competent
6 counsel would have acted otherwise,” Esposito v. INS, 987
7 F.2d 108, 111 (2d Cir. 1993), and that he was prejudiced as
8 a result of his counsel’s poor performance, see Rabiu, 41
9 F.3d at 882.
10 Here, the BIA did not abuse its discretion in
11 dismissing Jahangir’s claim of ineffective assistance
12 against Anthony Collins because only Collins’s associate,
13 not Collins, represented Jahangir. Contrary to Jahangir’s
14 contention, the BIA reasonably found that its regulations
15 hold only the individual attorney, not his firm, accountable
16 for ineffective representation. See 8 C.F.R. §§ 1003.17,
17 1003.101 (requiring individual attorneys to enter their
18 appearance before the Immigration Court and confirm their
19 submission to the BIA’s authority to sanction); Perriello v.
20 Napolitano, 579 F.3d 135, 138 (2d Cir. 2009) (the Court
21 deems the BIA’s interpretation of its regulations to be
22 controlling “unless plainly erroneous or inconsistent with
23 the regulation.”).
3
1 The BIA also reasonably determined that Jahangir failed
2 to establish that M. Najmul Alam provided ineffective
3 representation. Alam denied Jahangir’s allegations that he
4 failed to timely inform Jahangir of the BIA’s 2006 decision.
5 The BIA reasonably found Alam more persuasive, particularly
6 in light of Jahangir’s factually inaccurate assertions in
7 his affidavit with respect to Collins’s representation.
8 Moreover, even assuming that Jahangir’s counsel was
9 ineffective, the BIA did not abuse its discretion in
10 declining to equitably toll the time for filing to reopen
11 because Jahangir failed to exercise due diligence. See
12 Cekic v. INS, 435 F.3d 167, 171-72 (2d Cir. 2006) (holding
13 that equitable tolling is not available when the alien fails
14 to exercise due diligence in pursuing an ineffective
15 assistance claim). Not until Jahangir filed his second
16 motion to reopen in 2009, two years after he allegedly
17 discovered Alam’s ineffectiveness, did he first claim
18 ineffective assistance of counsel. The BIA therefore
19 reasonably found that Jahangir failed to exercise due
20 diligence. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d
21 Cir. 2007) (citing several cases holding that “a petitioner
22 who waits two years or longer to take steps to reopen a
4
1 proceedings ha[d] failed to demonstrate due diligence”).
2 Accordingly, the BIA did not abuse its discretion in denying
3 Jahangir’s motion to reopen as untimely and number-barred.
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2) and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
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