Bah v. Holder

12-3184
Bah v. Holder
BIA
Schoppert, IJ
A095 148 838
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 31st day of October, two thousand thirteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 IBRAHIM BAH,
15 Petitioner,
16
17 v. 12-3184
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Theodore Vialet, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Emily Anne
28 Radford, Assistant Director; Jesse
29 Lloyd Busen, Trial Attorney, Office
30 of 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 Petitioner Ibrahim Bah, a native and citizen of Sierra
6 Leone, seeks review of a July 26, 2012 decision of the BIA
7 affirming an October 7, 2010 decision of an Immigration
8 Judge (“IJ”) denying his motion to reopen his removal
9 proceedings. We assume the parties’ familiarity with the
10 underlying facts and procedural history in this case.
11 We review the BIA’s decision to affirm an IJ’s denial
12 of a motion to reopen for abuse of discretion. Iavorski v.
13 INS, 232 F.3d 124, 128 (2d Cir. 2000). An alien seeking to
14 reopen proceedings is required to file a motion to reopen no
15 later than 90 days after the date on which the final
16 administrative decision was rendered. See 8 U.S.C.
17 § 1229a(c)(7)(C)(i); 8 C.F.R. §§ 1003.2(c)(2),
18 1003.23(b)(1). There is no dispute that Bah’s motion to
19 reopen, filed more than six years after his final order of
20 removal was rendered, was untimely.
21 Bah contends, however, that the time period for filing
22 his motion to reopen should have been tolled due to his
23 prior counsel’s ineffective assistance. Under the doctrine
2
1 of equitable tolling, ineffective assistance of counsel may
2 toll the time limitation on a motion to reopen if the movant
3 has exercised “due diligence” in pursuing his claim. See
4 Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008). An
5 alien is required to exercise due diligence both before and
6 after he has or should have discovered the alleged
7 ineffective assistance. See id. at 132; Iavorski, 232 F.3d
8 at 134.
9 Bah asserts that he believed that his former counsel
10 had filed an appeal and that he was unaware that the IJ had
11 found his asylum application frivolous. He did not attempt
12 to contact his former attorney, however, until over a year
13 after the IJ’s decision. Bah admits that he was never able
14 to reach his former attorney and did not pay her entire fee
15 for filing an appeal.
16 Bah further contends that he ultimately decided not to
17 seek reopening until the agency adjudicated an I-730
18 petition for classification as a derivative asylee filed on
19 his behalf by his wife. But his motion was filed nearly a
20 year after the denial of that petition. For these reasons,
21 the BIA’s determination that Bah did not act diligently was
22 reasonable. See Rashid, 533 F.3d at 133 (finding that, even
3
1 if a petitioner did not “immediately realize . . . that his
2 counsel had been ineffective, due diligence required that he
3 follow up with his attorney after the DHS decision, and if
4 he received no response, to obtain new counsel, seek relief
5 from the agency on his own, or take other affirmative
6 action”); Iavorski, 232 F.3d at 134 (finding that petitioner
7 “failed as a matter of law to exercise the requisite due
8 diligence during the period of nearly two years he seeks to
9 toll” where, inter alia, the petitioner was unable to reach
10 his attorney after the removal hearing and had never paid
11 the attorney's fee for filing an appeal).
12 Finally, because Bah did not demonstrate that he acted
13 diligently, his motion was untimely, and it was not
14 necessary for the BIA to consider the merits of his
15 ineffective assistance claims or to review the transcript of
16 the underlying proceedings. See Cekic v. INS, 435 F.3d 167,
17 170 (2d Cir. 2006) (explaining that “no matter how
18 egregiously ineffective counsel's assistance may have been,
19 an alien will not be entitled to equitable tolling unless he
20 can affirmatively demonstrate that he exercised reasonable
21 due diligence during the time period sought to be tolled”).
4
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5