Marku v. Lynch

14-4241
Marku v. Lynch
BIA
A097 965 534
A097 965 535
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 1st day of February, two thousand sixteen.
5
6 PRESENT:
7 REENA RAGGI,
8 SUSAN L. CARNEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 LUC MARKU, ELIZABETA MARKU,
14 Petitioners,
15
16 v. 14-4241
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Caridad Pastor Cardinale, Pastor &
25 Associates, P.C., Troy, Michigan.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General, Civil
29 Division; Jennifer P. Williams,
1 Senior Litigation Counsel;
2 Alexander J. Lutz, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 DENIED.
11 Petitioners Luc Marku and Elizabeta Marku, natives and
12 citizens of Albania, seek review of a November 3, 2014, decision
13 of the BIA denying their second motion to reopen. In re Luc
14 Marku, Elizabeta Marku, Nos. A097 965 534/535 (B.I.A. Nov. 3,
15 2014). We assume the parties’ familiarity with the underlying
16 facts and procedural history in this case.
17 We review the BIA’s denial of a motion to reopen “for abuse
18 of discretion, mindful that motions to reopen ‘are
19 disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)
20 (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)). An alien
21 seeking to reopen proceedings is required to file a motion to
22 reopen no later than 90 days after the date on which the final
23 administrative decision was rendered and is permitted to file
24 only one such motion. 8 U.S.C. § 1229a(c)(7)(A) (allowing one
2
1 motion), (C)(i) (setting 90-day filing deadline); 8 C.F.R.
2 § 1003.2(c)(2) (same). The Markus’ May 2014 motion to reopen
3 was untimely and number barred because they filed it over four
4 years after the agency issued its final order of removal in April
5 2010 and because it was their second motion.
6 An alien may be excused from those limitations by
7 demonstrating ineffective assistance of counsel. See Rashid
8 v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008). The alien must
9 show prejudice as a result of the ineffective assistance, and
10 must have exercised due diligence in pursuing the claim. See
11 id. at 130-31. “[A]n alien must demonstrate that he or she has
12 exercised due diligence” in pursuing a claim during “both the
13 period of time before the ineffective assistance of counsel was
14 or should have been discovered and the period from that point
15 until the motion to reopen is filed.” Id. at 132.
16 The BIA did not abuse its discretion in denying the Markus’
17 motion to reopen as untimely and number barred. The Markus were
18 not diligent in pursuing their ineffective assistance claim for
19 the entire period they seek to toll—that is, from the BIA’s 2010
20 decision on appeal. Moreover, they knew of the ineffectiveness
21 from the time of the 2008 immigration hearing, when their first
3
1 attorney purportedly submitted fraudulent documents. See
2 Rashid, 533 F.3d at 133. They did not raise any ineffective
3 assistance claim until November 2013, when they filed their
4 first motion to reopen, over three years after the BIA’s
5 decision and after they knew about the fraudulent documents.
6 This delay showed a lack of due diligence. See Jian Hua Wang
7 v. BIA, 508 F.3d 710, 715-16 (2d. Cir. 2007) (upholding BIA’s
8 finding of lack of due diligence after five-month delay);
9 Rashid, 533 F.3d at 132 (upholding BIA’s finding of lack of due
10 diligence after 14-month delay).
11 Because due diligence is a prerequisite to excusing the
12 time and number limitations on filing of a motion to reopen,
13 the Markus’ failure to show that diligence is dispositive. We
14 decline to reach the BIA’s alternative determination that they
15 failed to show prejudice. INS v. Bagamasbad, 429 U.S. 24, 25
16 (1976) (“As a general rule courts and agencies are not required
17 to make findings on issues the decision of which is unnecessary
18 to the results they reach.”).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of removal
21 that the Court previously granted in this petition is VACATED,
4
1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot. Any pending request for oral argument
3 in this petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O=Hagan Wolfe, Clerk
5