Diallo v. Holder , 420 F. App'x 113 ( 2011 )

10-2136-ag
Diallo v. Holder
BIA
A073 602 548
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 27th day of April, two thousand eleven.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 JOSEPH M. McLAUGHLIN,
9 ROBERT A. KATZMANN,
10 Circuit Judges.
11 _____________________________________
12
13 FATOU DIALLO,
14 Petitioner,
15 10-2136-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Rhoda Sherif, Law Office of Rhoda
24 Sherif, San Diego, Cal.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; John S. Hogan, Senior
28 Litigation Counsel; Michael C.
29 Heyse, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 decision of the Board of Immigration Appeals (“BIA”), it is
4 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
5 review is DENIED.
6 Petitioner Fatou Diallo, a native and citizen of
7 Senegal, seeks review of a May 4, 2010, order of the BIA
8 denying her motion to rescind and reissue the BIA’s
9 September 13, 2004, decision dismissing her appeal from the
10 February 24, 2004, decision of an immigration judge denying
11 her motion to reopen her in absentia deportation
12 proceedings. In re Fatou Diallo, No. A073 602 548 (B.I.A.
13 May 4, 2010). We assume the parties’ familiarity with the
14 underlying facts and procedural history of the case.
15 We treat a motion to reissue as a motion to reopen, and
16 review the agency’s denial of such a motion for abuse of
17 discretion. See Ping Chen v. U.S. Att’y Gen., 502 F.3d 73,
18 75 (2d Cir. 2007) (per curiam). In her motion, Diallo
19 requested that the BIA rescind and reissue a prior decision
20 so that she could file a timely petition for review in this
21 Court, alleging that prior counsel had been ineffective
22 because he failed to file such a petition. In order to
23 prevail on a claim of ineffective assistance of counsel, a
24 movant must demonstrate, among other requirements, that she
25 exercised “due diligence” in vindicating her rights, Cekic
2
1 v. INS, 435 F.3d 167, 171 (2d Cir. 2006), "during the entire
2 period [she] seeks to toll . . . [including] both the period
3 of time before the ineffective assistance of counsel was or
4 should have been discovered and the period from that point
5 until the motion to reopen is filed,” Rashid v. Mukasey, 533
6 F.3d 127, 132 (2d Cir. 2008).
7 Here, the BIA did not abuse its discretion in
8 determining that Diallo failed to demonstrate that she
9 exercised due diligence. Although Diallo had knowledge of
10 her final order of removal in September 2004, and of the
11 denial of a motion to reconsider as early as May or June
12 2006, she waited an additional three and a half years, until
13 February 2010, to file her motion to rescind and reissue.
14 Moreover, Diallo did not specify when she learned of the
15 alleged ineffective assistance, what steps she took prior to
16 learning of the ineffective assistance, or how much time
17 passed after she learned of the ineffectiveness before she
18 filed her motion. See id. (petitioner failed to exercise
19 due diligence by waiting to pursue his case until fourteen
20 months after he knew or should have known of counsel’s
21 alleged ineffective assistance); Jian Hua Wang v. BIA, 508
22 F.3d 710, 715 (2d Cir. 2007) (per curiam) (waiting 8 months
23 after the receipt of documents pertinent to petitioner’s
24 claim to file a motion to reopen did not demonstrate due
3
1 diligence).
2 Given that the BIA did not abuse its discretion in
3 determining that Diallo failed to demonstrate due diligence,
4 we do not consider her arguments that the agency erred in
5 determining that she failed to meet the requirements of
6 Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), or that
7 she failed to demonstrate prejudice by counsel’s failure to
8 file a petition for review. See Cekic, 435 F.3d at 170
9 (“[N]o matter how egregiously ineffective counsel's
10 assistance may have been, an alien will not be entitled to
11 equitable tolling unless he can affirmatively demonstrate
12 that he exercised reasonable due diligence during the time
13 period sought to be tolled.”).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any pending motion
16 for a stay of removal in this petition is DISMISSED as moot.
17 Any pending request for oral argument in this petition is
18 DENIED in accordance with Federal Rule of Appellate
19 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
4