Digaffa Urga v. Eric Holder, Jr. , 461 F. App'x 319 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1581
DIGAFFA BALCHA URGA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: October 31, 2011 Decided: January 9, 2012
Before MOTZ, KING, and DAVIS, Circuit Judges.
Petition denied by unpublished per curiam opinion.
David A. Garfield, GARFIELD LAW GROUP, LLP, Washington, D.C.,
for Petitioner. Tony West, Assistant Attorney General, James E.
Grimes, Senior Litigation Counsel, Walter Bocchini, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Digaffa Balcha Urga, a native and citizen of Ethiopia,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) denying her motion to reconsider the denial of
her motion to reopen. Because we conclude that the Board did
not abuse its discretion in finding that Urga was not
sufficiently diligent to support equitable tolling of the
ninety-day period in which to file a motion to reopen, we deny
the petition for review.
The denial of a motion to reconsider is reviewed for
abuse of discretion. Narine v. Holder, 559 F.3d 246, 249 (4th
Cir. 2009); Jean v. Gonzales, 435 F.3d 475, 481 (4th Cir. 2006);
8 C.F.R. § 1003.2(a) (2011). A motion to reconsider asserts the
Board made an error of fact or law in its earlier decision. 8
C.F.R. § 1003.2(b). This court will reverse a denial of a
motion to reconsider “only if the Board acted arbitrarily,
irrationally, or contrary to law.” Narine, 559 F.3d at 249(internal quotation marks omitted). A motion to reconsider
must “state the reasons for the motion by specifying the errors
of fact or law in the prior Board decision and shall be
supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1); see
also 8 U.S.C. § 1229a(c)(6)(C) (2006) (“The motion [to
reconsider] shall specify the errors of law or fact in the
previous order and shall be supported by pertinent authority.”).
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“[A]dministrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B) (2006).
A motion to reopen “shall be filed within 90 days of
the date of entry of a final administrative order of removal.”
8 U.S.C. § 1229a(c)(7)(C)(i) (2006); see also 8 C.F.R.
§ 1003.2(c)(2) (2011). In the order denying reconsideration,
the Board assumed that the ninety day period in which to file a
motion to reopen was tolled until Urga’s current counsel was
retained. The Board found Urga did not provide sufficient
reasons to continue to toll the ninety day period after she
retained counsel and discovered her first counsel’s alleged
ineffectiveness. We conclude that the Board did not abuse its
discretion in finding that Urga did not establish extraordinary
circumstances that would warrant tolling the ninety day period
any further. See Harris v. Hutchinson, 209 F.3d 325, 330 (4th
Cir. 2000) (equitable tolling may be appropriate if the litigant
can show some extraordinary circumstance beyond her control that
prevented her from complying with the statutory time limit); see
also Hernandez-Moran v. Gonzales, 408 F.3d 496, 499-500 (8th
Cir. 2005) (equitable tolling is granted sparingly and alien
must demonstrate extraordinary circumstances). We find there
was nothing extraordinary about the reasons Urga offered to show
why it took her new counsel longer than ninety days to file the
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motion to reopen. Counsel’s delay in filing the motion to
reopen does not entitle Urga to equitable tolling. See, e.g.,
Rouse v. Lee, 339 F.3d 238, 248-49 (4th Cir. 2003) (habeas
petitioner’s counsel’s mistake does not serve as a ground for
equitable tolling because counsel’s actions are attributable to
petitioner).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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