Ahmed v. Holder , 463 F. App'x 54 ( 2012 )

11-1387-ag
Ahmed v. Holder
BIA
A092 776 211
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 29th day of February, two thousand twelve.
5
6 PRESENT:
7 ROBERT D. SACK,
8 ROBERT A. KATZMANN,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 SUBAIR SAEED AHMED, AKA ZUBAIR SAEED
14 AHMED,
15 Petitioner,
16
17 v. 11-1387-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, New
25 York, New York
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Greg D. Mack, Senior
29 Litigation Counsel; Richard
30 Zanfardino, Trial Attorney, Office
1 of Immigration Litigation, Civil
2 Division, United States Department
3 of Justice, 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 Subair Saeed Ahmed, a native and citizen of Pakistan,
10 seeks review of a March 28, 2011, order of the BIA denying
11 his motion to reopen. In re Subair Saeed Ahmed, No. A092
12 776 211 (B.I.A. Mar. 28, 2011). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 of the case. We review the agency’s denial of a motion to
15 reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d
16 515, 517 (2d Cir. 2006).
17 Because Ahmed’s motion to reopen was untimely, he was
18 required to demonstrate that the time limit should be
19 equitably tolled because he received ineffective assistance
20 of counsel or establish changed country conditions excepting
21 his motion from the time limit. See 8 U.S.C.
22 § 1229a(c)(7)(C); Cekic v. INS, 435 F.3d 167, 170 (2d Cir.
23 2006). The BIA found that he established neither, and
24 accordingly denied his motion as untimely.
2
1 Ahmed argues that the agency erred in failing to reopen
2 his proceedings based on his allegation of ineffective
3 assistance of counsel. However, because Ahmed’s motion to
4 reopen was filed over eight years after his final removal
5 order was issued he was required to show that he exercised
6 due diligence in pursuing the case “during th[at] entire
7 period” which he seeks to toll. Rashid v. Mukasey, 533 F.3d
8 127, 132 (2d Cir. 2008). While Ahmed provided evidence that
9 he relied on various attorneys between 2002 and 2007 to
10 pursue a LIFE Act claim, he presented no evidence that he
11 took any actions to pursue his case between the 2009 denial
12 of his LIFE Act claim and July 2010 when he hired the
13 attorney who filed his motion to reopen. Accordingly, the
14 BIA did not abuse its discretion in finding that he did not
15 establish that he acted with due diligence in pursuing his
16 ineffective assistance of counsel claim. See id.17 Ahmed also argues that the agency abused its discretion
18 in concluding that he did not demonstrate changed country
19 conditions. This argument is unavailing. Ahmed’s motion to
20 reopen and evidence before the BIA did not indicate any
21 change in country conditions. He now relies on statements
22 in an affidavit he submitted to the BIA, asserting that
3
1 conditions in Pakistan had changed since the Pakistan
2 Peoples Party came to power in 2008 and listing suicide
3 attacks between 2007 and 2010. This evidence does not
4 compel the conclusion that conditions in Pakistan changed
5 since the time of his 1999 merits hearing. See Matter of
6 S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007); Moosa v.
7 Holder, 644 F.3d 380, 386-87 (7th Cir. 2011). Accordingly,
8 the BIA reasonably concluded that Ahmed did not present
9 evidence warranting an exception to the time limitations on
10 motions to reopen.
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
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