Mahamadou v. Holder , 486 F. App'x 940 ( 2012 )

11-3414-ag BIA
Mahamadou v. Holder A097 528 373
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 11th day of July, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_______________________________________
MOCTAR SOULEY MAHAMADOU,
Petitioner,
v. 11-3414-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Theodore Vialet, Woodside, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Linda S. Wernery, Assistant
Director; Gerald M. Alexander, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Moctar Souley Mahamadou, a native and citizen of Niger,
seeks review of a July 27, 2011, decision of the BIA denying
his motion to reissue. In re Moctar Souley Mahamadou, No.
A097 528 373 (B.I.A. July 27, 2011). We assume the parties’
familiarity with the underlying facts and procedural history
of this case.
We treat motions to reissue as motions to reopen,
reviewing the agency’s denial of such motions for abuse of
discretion, and the agency’s findings of fact under the
substantial evidence standard. See Ping Chen v. U.S. Att’y
Gen., 502 F.3d 73, 75 (2d Cir. 2007). In this case, the BIA
did not abuse its discretion in denying Mahamadou’s motion
to reissue its July 22, 2009 decision.
Aliens seeking to reopen proceedings may file a motion
to reopen no later than 90 days after the date on which the
final administrative decision was entered and served on the
appropriate party in person or by mail. 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2); 8 C.F.R.
§ 1003.13; Ping Chen, 502 F.3d at 75. Here, the BIA
reasonably found that it properly served Mahamadou by
mailing a copy of its decision to both his and his
attorney’s last known addresses on July 22, 2009, thus
starting the 90-day filing period. See 8 C.F.R. § 1003.13;
Ping Chen, 502 F.3d at 75. Because Mahamadou did not file
his motion to reissue until March 2011, it was untimely.
See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
In some instances the agency may excuse the time
limitation if an alien demonstrates ineffective assistance
of counsel. See Rashid v. Mukasey, 533 F.3d 127, 130-31 (2d
Cir. 2008). To prevail on a claim of ineffective
assistance, an applicant must demonstrate that his
constitutional right to due process was violated and that he
exercised due diligence in pursuing the case during the
period for which equitable tolling is sought. Id.2
Mahamadou argues that his prior counsel failed to
inform him of the BIA’s 2009 decision and that he exercised
due diligence because, upon discovering that his former
counsel had resigned back in 2008, he filed his motion to
reissue immediately after investigating whether to bring a
complaint against the immigration agency that had handled
his case. However, contrary to Mahamadou’s assertion that
he learned of the resignation in February 2011, his former
counsel informed him in 2010 that he had resigned. Because
Mahamadou did not provide an explanation for delaying until
June 2011 to file his motion to reissue, the BIA reasonably
found that he did not exercise due diligence. See id.; see
also Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DENIED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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